PAPER NO.

53/2011 DECEMBER 2011

Jurisdiction, Procedure and the Transformation of International Law: from Nottebohm to Diallo in the ICJ
Mads Andenas (Edited by Mads Andenas, Neil Andrew and Masayuki Tamaruya)

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Electronic copy available at: http://ssrn.com/abstract=1972918

Jurisdiction, Procedure and the Transformation of International Law: from Nottebohm to Diallo in the ICJ. Mads Andenas1

SUMMARY Kurt Lipsteins involvement as counsel in Nottebohm2 on diplomatic protection before the International Court of Justice demonstrated to him the limitations of international justice. Changing concepts of state sovereignty, individual rights, jurisdiction, procedure and evidence are incrementally remedying these limitations. This article shows how international law provides more effective protection of individual rights, mainly through the analysis of the Diallo case of 2010.

Kurt Lipsteins scholarship moved across the boundaries that divide the law, allowing him to combine arguments from different national traditions and disciplines within national law. His involvement in public international law, as counsel in a case before the International Court of Justice,3 demonstrated to him the limitations of international justice. Changing concepts of state sovereignty, state intent, individual rights, jurisdiction, procedure and evidence are incrementally remedying these limitations.

1.

Lipstein and the Nottebohm case

Kurt Lipstein took over as counsel in the Nottebohm case of 1955 from Hersh Lauterpacht who had been appointed a judge of the International Court of Justice.4

Professor, University of Oslo, and a Member of the UN Working Group on Arbitrary Detention. Formerly The Director of The British Institute of International and Comparative Law and a former General Editor of The International and Comparative Law Quarterly. 2 Extensive information about Professor Lipstein s career and involvement in the Nottebohm case is available in the Squire Law Librarys Eminent Scholars Archive: http://www.squire.law.cam.ac.uk/eminent_scholars/kurt_lipstein.php 3 K Lipstein and E H Loewenfeld, Liechtenstein gegen Guatemala. Der NottebohmFall, Gedachtnisschrift Ludwig Marxer, Zurich 1963 275-325. 4 Lichtenstein v. Guatemala, 1955 I.C.J. 4.

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Lichtenstein claimed to exercise diplomatic protection for a naturalised citizen.5 The Court however did not recognise the Lichtenstein citizenship. To recognise a naturalisation giving the right to grant diplomatic protection, the International Court required effective nationality, and a meaningful connection to the state. This was an invention. The two requirements served to avoid many claims for reparation for confiscations, including in cases where stateless Germans had been granted citizenship. Three judges dissented, going with Kurt Lipstein and Lichtenstein. Judge Read gives this explanation:

There is another aspect of this case which I cannot overlook. Mr. Nottebohm was arrested on October 19, 1943, by the Guatemalan authorities, who were acting not for reasons of their own but at the instance of the United States Government. He was turned over to the armed forces of the United States on the same day. Three days later he was deported to the United States and interned there for two years and three months. There was no trial or inquiry in either country and he was not given the opportunity of confronting his accusers or defending himself, or giving evidence on his own behalf. In 1944 a series of fifty-seven legal proceedings was commenced against Mr. Nottebohm, designed to expropriate, without compensation to him, all of his properties, whether movable or immovable. The proceedings involved more than one hundred and seventy one appeals of various kinds. Counsel for Guatemala has demonstrated, in a fair and competent manner, the existence of a network of litigation, which could not be dealt with effectively in the absence of the principally interested party. Further, all of the cases involved, as a central and vital issue, the charge against Mr. Nottebohm of treasonable conduct. It is common ground that Mr. Nottebohm was not permitted to return to Guatemala. He was thus prevented from assuming the personal direction of the complex network of litigation. He was allowed no opportunity to give evidence of the charges made against him, or to confront his accusers in open court. In such circumstances I am bound to proceed on the assumption that Liechtenstein might

K Lipstein, The Nottebohm CaseReflections by Counsel, 2 Wig and Gavel (1981) 6 , and K Lipstein, Acta et Agenda, 36 Cambridge L.J. 47 (1977)

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be entitled to a finding of denial of justice, if the case should be considered on the merits. In view of this situation, I cannot overlook the fact that the allowance of the plea in bar would ensure that justice would not be done on, any plane, national or international. I do not think that a plea in bar, which would have such an effect, should be granted, unless the grounds on which it is based are beyond doubt.6

Courts were not strong on upholding individual rights in any jurisdiction in the 1940s or 1950s. The majority of the International Court reflected a general view on the role of courts in restricting rights of the individual against the state, rather than in upholding them, and it did so through doctrines of state sovereignty, jurisdiction and state intent, and rules of procedure and evidence. It is only recently that the International Court has opened up for diplomatic protection as an effective tool in the protection of individual rights. Individual rights were previously not the business of the International Court. It took time for the human rights protection set out in the Universal Declaration of Human Rights of 1948 to take effect through human rights treaties and giving weight to individual rights in the application of international law more generally. 2. Diallo in the International Court

The International Court had an opportunity to revisit its restrictive practice on diplomatic protection and individual rights in Congo v Uganda.7 But the majority of Court used evidential issues relating to citizenship as an effective limiting mechanism. In his separate dissent, Judge Simma took another approach: humanitarian and human rights law are obligations erga omnes which by their very nature are the concern of all States.8 In Diallo,9 the Guinean nationality of Mr Diallo was not in question, and the Court could then consider the human rights violations. It is now appropriate to turn to

6 7

Lichtenstein v. Guatemala, 1955 I.C.J. 4 at 35, dissenting opinion of Judge Read. Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v Uganda), Judgment, ICJ Reports 2005, 168 8 See separate opinion by Judge Simma in Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v Uganda), Judgment, ICJ Reports 2005, 168, 334. 9 Ahmadou Sadio Diallo (Republic of Guinea v Democratic Republic of the Congo), I.C.J. Reports 2010

the opening paragraph of Judge Canado Trindades Separate Opinion in the Diallo case:10 This is the first time in its history, to the best of my knowledge, that the International Court of Justice has established violations of the two human rights treaties at issue, together, namely, at universal level, the 1966 UN Covenant on Civil and Political Rights and, at regional level, the 1981 African Charter on Human and Peoples Rights, both in the framework of the universality of human rights. The International Courts judgment in Diallo is a remarkable decision contributing to the widening and deepening of international law and with consequences for several fundamental questions, including the role of the International Court and international law in making human rights effective, erga omnes and jus cogens rules, customary law, evidence, and several substantive rules. In bringing the transformation of

international law one step further, the Diallo judgment develops the International Court as the principal judicial organ of the United Nations11 at the top of an open international law system. To achieve this, the Court had to overcome a series of jurisdictional and procedural hurdles.12 All the permanent judges of the International Court agreed that Congo had violated the probation on arbitrary detention and expulsion and that the violations gave rise to a right of compensation. The International Courts use of sources from other international and regional bodies as sources of authority, indicates solutions to fragmentation problems. In Diallo, the prohibition against inhumane and degrading treatment was confirmed (in an obiter statement) as customary public international law with a choice of words that opens for a hardening of customary law to jus cogens. The International Court arguably went further than the UN Human Rights Committee (HRC) and European Court of Human Rights (ECtHR), as clarified by the Joint Declaration of

10

Antnio Augusto Canado Trindade is one of the several judges and counsel in this case who were taught by Kurt Lipstein in Cambridge. Trindade holds an LLM and a PhD from Cambridge. Sir Christopher Greenwood is of course as Cambridge as light blue can get. 11 Art 92 of the UN Charter. 12 The Judgment on the preliminary objections to jurisdiction raised by the Russian Federation on 1 April 2011 on the Application of the International Convention on the Elimination of All Forms of Racial Discrimination (Georgia v Russian Federation) indicates the limits to the transformation in the International Courts approach to jurisdiction this far.

Judges Keith and Greenwood disagreeing with the majority on this point, in developing a substantive prohibition on arbitrary expulsion going beyond the procedural requirements. The legality requirement is developed, as is the review of national interpretations of domestic law, and the approach to evidentiary issues in human rights cases. Consular and human rights protection are combined, and not to categorise or attribute in a taxonomic exercise reducing effective protection. The facts of Diallo allowed the International Court to adopt the substantive approach to erga omnes obligations of Judge Simmas dissenting opinion Congo v Uganda, 13 offering solutions to challenges of fragmentation and effectiveness. The open use of sources of law, including regional human rights courts as authority, goes in the same direction. Moving freely across the boundaries that divide the law, or geological layers as Joseph Weiler described them in his celebrated 2004 article,14 the International Court contributes to common sources and methods and to the foundation for a level of unity or coherence of international law. 3. Facts and Findings in Diallo.

Mr Diallo, a Guinean citizen resident in the Congo for thirty-two years, founded two companies: an import-export company and a company specializing in container transport of goods. Mr Diallo was the managing director and, in the end, the sole member of these private limited liability companies. As the managing director of the two companies, Mr Diallo initiated various steps, including judicial ones, to recover alleged debts from the State and several companies. He was arrested and imprisoned on 25 January 1988. More than a year later the public prosecutor in Kinshasa ordered his release. On 31 October 1995 the Prime Minister issued an expulsion order against Mr Diallo, who was again detained, and on 31 January 1996, deported to Guinea. Only States may be parties to cases before the International Court, and Mr Diallos case came before the Court by virtue of Guinea seeking to exercise

13

Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v Uganda), Judgment, ICJ Reports 2005, 168. 14 J H H Weiler 'The Geology of International Law: Governance, Democracy and Legitimacy', (2004) 64 Heidelberg Journal of International Law 54762.

diplomatic protection of his rights. The Court ruled in its 2007 Judgment on Preliminary Objections that Guinea could exercise diplomatic protection for Mr Diallos direct rights as a member of the private limited liability companies, and rejected the Congolese objections on grounds of failure to exhaust local remedies. In the 2010 Judgment on Merits, all the claims failed that were based on Mr Diallos direct rights as a member or as managing director of the private limited liability companies. Congolese restrictions on these rights did not constitute a violation of any protected right to property. Claims concerning the 1988-89 arrest were submitted too late and rejected. But the 1995-96 detention and expulsion were arbitrary and in violation of the ICCPR and the African Charter, and gave rise to a right of compensation. There was however no violation of the prohibition of degrading or inhumane treatment.

4. Developing Consular Protection and Human Rights

Already in the 2007 Judgment on Preliminary Objections, the International Court had moved away from the formalistic and traditional limitations15 on diplomatic protection: Owing to the substantive development of international law over recent decades in respect of the rights it accords to individuals, the scope ratione materiae of diplomatic protection, originally limited to alleged violations of the minimum standard of treatment of aliens, has subsequently widened to include, inter alia, internationally guaranteed human rights. (Para 39.) In his Separate Opinion to the Judgment of 2010 (on the merits), Judge Canado Trindade explains the new approach: The subject of the rights that the Court has found to have been breached by the respondent State in the present case, is not the applicant State: the subject of those rights is Mr A S Diallo, an individual. The procedure for the vindication
15

See the discussion in G Gaja, The Position of Individuals in International Law: An ILC Perspective, (2010) 21 EJIL 11; C Amerasinghe, Diplomatic Protection 32933 (2008); L Condorelli, La protection diplomatique et lvolution de son domaine dapplication actuelle, (2003) 86 Rivista di diritto internazionale 5; G Gaja, Droit des Etats et droits des individus dans le cadre de la protection diplomatique, in J-F Flauss (ed) La Protection Diplomatique: Mutations Contemporaines et Pratiques Nationales 64 (Bruylant, Brussels 2003); A Verdross and B Simma, Universelles Vlkerrecht: Theorie und Praxis 80102 (Duncker & Humblot, Berlin 1984).

of the claim originally utilized (by the applicant State) was that of diplomatic protection, but the substantive law applicable in the present case,as clarified after the Courts Judgment of 2007 on Preliminary Objections, in the course of the proceedings (written and oral phases) as to the merits,is the International Law of Human Rights. (Para 223.)

In Congo v Uganda,16 as already mentioned, Uganda could not satisfy the Court about the Ugandan nationality of the victims of human rights abuses. So in that case the traditional application of diplomatic protection became an effective limiting mechanism. In his separate opinion in Congo v Uganda, Judge Simma argued for the application of humanitarian and human rights law as obligations erga omnes which by their very nature are the concern of all States.17 In Diallo, the Guinean nationality of Mr Diallo was not in question, and the Court could then consider the human rights violations. Mr Diallo had not been informed at the time of his arrest of his right to request consular assistance from his country. The Intenational Courtheld that the Congo was in breach of Article 36(1)(b) of the Vienna Convention on Consular Relations of 1963, to which both Guinea and the DRC were parties (paras 90-98).

5.

Arbitrary Expulsion and Detention, and Degrading and Inhuman

Treatment

The International Court provided an extensive analysis of the alleged violation of international human rights obligations, first addressing Mr Diallos rights as an individual (paras 21-98), and then his rights as a member or as managing director of the private limited liability companies (paras 99-159). The Court discussed the legality requirement, not accepting the claim for a national security exception, and taking the opportunity to clarify that the prohibition

16

Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v Uganda), Judgment, ICJ Reports 2005, 168 17 See separate opinion by Judge Simma in Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v Uganda), Judgment, ICJ Reports 2005, 168, 334.

against arbitrary expulsion does not only provide procedural rights but a substantive right, requiring the Court to review whether the expulsion was justified on its merits. Article 13 ICCPR and the African Charter Article 12 require that an expulsion of an alien can only take place in accordance with the law. The Court set out three conditions that follow from this requirement of legality. First, compliance with national law is a necessary condition but not a sufficient one. Second, domestic law must also be compatible with the other requirements of the Covenant and the African Charter. Third, an expulsion must not be arbitrary in nature (para 65). The Court relied on the jurisprudence of other international and regional human rights bodies, such as the United Nations Human Rights Committee and the African Commission on Human and Peoples Rights. It also found support in the interpretation by the European Court of Human Rights and the Inter-American Court of Human Rights of their respective human rights conventions (para 68). Judges Sir Christopher Greenwood and Sir Kenneth Keith in their Joint Declaration argued that this jurisprudence did not go beyond procedural guarantees. 18 In the case note on Diallo in The American Journal of International Law, Eirik Bjorge agrees with Greenwood and Keith that the Court goes further than the international and regional human rights bodies. He concludes that by developing international human rights in this way, the Court in Diallo forcefully has staked its claim as an arbiter of human rights to be reckoned with.19 It is not surprising that members and staff of human rights bodies already has given Diallo much attention, and it is difficult to imagine that any of these human rights bodies would do anything but gratefully adopt the view of the Court. The Court held that there had been violations of both procedural and substantive guarantees. There was breach of the domestic law requirements of

18

Judge Canado Trindade in his Separate Opinion provides an extensive discussion of the prohibition of arbitrariness in the international law of human rights (paras 26-36). He advances a general prohibition of arbitrariness when rights are restricted, following from the legality requirement. A closer reading for instance of the case law of the European Court goes far to bearing this out. First, the due process requirements under Protocol 7 to the European Convention are set so high that there is no need for further substantive protection in any of the cases. Secondly, there is no limitation to procedural rights under the prohibition of arbitrary detention under Art 5 of the European Convention which practically always will come into play in the expulsion cases. 19 E Bjorge, Case Concerning Ahmadou Sadio Diallo, (2011) 105 The American Journal of International Law, 534.

consultation and the provision of reasons (para 73), and of the right to be heard (para 74). The Court did not accept that there were compelling reasons of national security for an exception (para 74). The Court also held there was a violation of Article 9 of the Covenant and of Article 6 of the African Charter against arbitrary detention. Again there were breaches of domestic procedures (including the forty-eight hours before going before a judge). Account had to be taken of the number and seriousness of irregularities tainting them. Mr Diallo had been held for a particularly long time. The Government had made no attempt to ascertain whether his detention was necessary, and the decisions had not been reasoned in a sufficiently precise way (para 82). The proceedings against Mr Diallo were not criminal but he still had right to be notified of reasons for arrest, and burden was on the state to show that this had been done (paras 72 and 84). The Court, in the aftermath of the decade of anti-terror measures, then took this opportunity to state that there is no doubt, moreover, that the prohibition of inhuman and degrading treatment is among the rules of general international law which are binding on States in all circumstances, even apart from any treaty commitments. The Courts use of the words even apart is a useful reminder that we are dealing with a rule of customary international law. The use of words of in all circumstances can refer to a rules peremptory or jus cogens status in the sense of its unconditional applicability and lack of reciprocity, even if other States breach the rule in question, or if a contrary rule or instrument is invoked to bypass the rule. But in Diallo there was no normative conflict that would require the Court to address further the peremptory or jus cogens status or nature of the prohibition of inhuman and degrading treatment. This is left to further elaboration by the Court at some later occasion and by the human rights bodies the Court now relies so expressly on for its development of this part of international law.20 The Court discussed the provisions of Art 7 ICCPR (against torture and degrading treatment), Art 10 (treatment of detainees: with humanity and respect for dignity) and African Charter Art 5 (dignity inherent in a human being). In the

20

Neither did it, strictly speaking, require the Court to deal with the customary international law status of the prohibition.

event, the Court held that no breach of the prohibition of inhuman and degrading treatment had been demonstrated. The Court also established a new evidentiary position for claims to succeed in human rights cases. The burden of proof was placed on the claimant in Pulp Mills,21 but this could not apply to human rights cases in general, in particular not when a party claims not to have been afforded procedural guarantees (para 55). The Court referred to the limits on its review of a states interpretation of own domestic law (para 70). It is for each State, in the first instance, to interpret its own domestic law and the International Court will not substitute its own interpretation for that of the national authorities, especially when that interpretation is given by the highest national courts. The threshold for the review is that a State puts forward a manifestly incorrect interpretation of its domestic law, particularly for the purpose of gaining an advantage in a pending case. The International Court could provide convincing support for breach of domestic law (no consultation and not sufficient reasons, para 73, and breach of the right to be heard, para 74). 6. Companies and Investor Rights: Barcelona Traction and legal personality Guinea could exercise diplomatic protection for Mr Diallos direct rights as a member of the private limited liability companies, and the International Court rejected the Congolese objections on grounds of failure to exhaust local remedies. The Court rejected in its 2007 Judgment on Preliminary Objections the claims held by companies owned by Mr Diallo or where he held a controlling position. The Court did not allow Guineas claim to extend its protection to the two limited liability companies. They were legal persons, formed and established in the Congo, and separate from their shareholder and manager, Mr Diallo. The Court based this on Barcelona Traction.22 In Elettronica Sicula23 the Chamber of the Court had applied the treaty protection developed in bilateral investment treaties for protection of shareholder claims for compensation for violations against a company (protection by
21

Pulp Mills on the River Uruguay (Argentina v Uruguay), Judgment of 20 April 2010, para. 162.

22

Barcelona Traction, Light and Power Company, Limited (Belgium v Spain), Second Phase, Judgment, ICJ Reports 1970, 33-34, para 38. 23 Elettronica Sicula SPA (ELSI) (United States of America v Italy), Order of 20 December 1988, ICJ Reports 1988, 158.

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substitution). Guinea also referred to ILCs draft Articles on Diplomatic Protection and case law from various human rights bodies. But in Diallo the Court did not extend protection by substitution to a rule of customary international law. This left Mr Diallos direct rights as a member or as managing director of the private limited liability companies. In the 2010 Judgment on Merits, all the claims based on Mr Diallos direct claims failed.24 The Joint dissenting opinion of Judges Al-Khasawneh and Yusuf revisited the Courts reading of Barcelona Traction. They first of all pointed out that the Court in Barcelona Traction saw the need to attribute the diplomatic protection to one state. With one country of incorporation or establishment determining the nationality of the company, and shareholders from many countries, there could be good reasons to choose the former over the latter. In the present case, shareholders of different nationalities were not a concern, as there was a single owner in Mr Diallo. Judges Al-Khasawneh and Yusuf pointed out that the developments in the field of foreign investments have abandoned the distinction between the corporate personality of the company on the one hand, and that of the shareholders on the other, leading to a discrepancy between the customary international law standard and the standard contained in most investment treaties.

7.

Remedies

Remedies were discussed under the heading reparation (the term used in the text is compensation, paras 160-4). With the findings in the judgment these are limited to the detention and expulsion. The parties were given a short deadline to reach a settlement.

The Court brought up the length of proceedings. The application was lodged in 1998. With such delay, remedies can hardly be effective in a human rights case as this. There is all reason to undertake reforms of different kinds to reduce delay, some
24

In both the 2007 Judgment on Preliminary Objections and the 2010 Judgment on Merits there is discussion of the managing director, the sole member, and the private limited liability company in the company law of the Congo. See M Andenas and F Wooldridge European Comparative Company Law (CUP, Cambridge 2009) on the French (p 111) and Belgian (p 124) private companies that the Congolese system and terminology of company law builds upon.

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of which is due to the deference the International Court procedures show to state parties, and less appropriate where the fundamental rights of a private individual is involved. It must be recalled that both national and other international courts have considerable delays in human rights cases, although the twenty-two years in the ICJ, starting some ten years after the end of the detention with the final expulsion, must be at the extreme end.

8. Sources of Authority

We now come to another development in international law of which Kurt Lipstein would have approved. Courts follow different practices when it comes to citation of other courts. International Court judgments25 have traditionally not referred to decisions by other courts, national or international, or for that matter to academic scholarship.26 It has for some time cited and relied on arbitral decisions.27 In the Wall Case (2004)28 the International Court for the first time cited the UN Human Rights Committee (HRC), both its decisions in individual cases, its constant practice on extraterritorial application, and its statements on the interpretation of the ICCPR at issue (para 109110). The Court also cited the Committee on Economic, Social and Cultural Rights (CESCR, para 112) and the UN Special Human Rights Mandates or Rapporteurs. The International Court placed clear reliance on the statements of the two UN committees in the interpretation of their respective 1966 UN Covenant, and relied in the determination of factual matters on the CESCR and the UN Special Human Rights Mandates or Rapporteurs. Then in Bosnia and Herzegovina v Serbia and Montenegro (2007), the International Court cited both the Trial Chamber of the International

25 26

Individual judges have more freedom in their opinions that are appended to the judgments. The European Human Rights Court has an open practice, whereas the EU Court of Justice has been most closed and restrictive in this respect but now openly relies on judgments from the Human Rights Court. Many national courts have treated law as a closed system and not cited international or foreign courts, and in some countries this remains a contested issue. But most national, and international, courts have increasing rates of citation of decisions by courts from other jurisdictions, see for a discussion of this development, M Andenas and D Fairgrieve, There is a World ElsewhereLord Bingham and Comparative Law, in M Andenas and D Fairgrieve (eds), Tom Bingham and the Transformation of the Law - A Liber Amicorum, (Oxford University Press, Oxford 2009), 831. 27 See the discussion in G Guillaume, The Use of Precedent by International Courts and Arbitrators, Journal of International Dispute Settlement (2011), 5-23. 28 Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion, ICJ Reports 2004, 13.

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Criminal Tribunal for the former Yugoslavia (ICTY) and the International Criminal Tribunal for Rwanda (ICTR).29 The International Court found itself unable to subscribe to the view expressed by the ICTY on state responsibility (para 403), but relied on the ICTY for its findings of facts, and on both the ICTY and the ICTR for the elements of the international criminal offences.

In Diallo, the multiplicity of sources reflects the nature of public international law as an open system.30 The International Court relies on the HRCs jurisprudence, including Maroufidou v Sweden31 with Sir Christopher Greenwood and Sir Kenneth Keith disagreeing in the interpretation.32 The International Court also refers to General Comment No. 15.33 This is fully justified by the importance of achieving the necessary clarity and the essential consistency of international law, as well as legal security, to which both the individuals with guaranteed rights and the States obliged to comply with treaty obligations are entitled. Though the International Court is in no way obliged in the exercise of its judicial functions to model its own interpretation of the Covenant on that of the Committee, it believes that it should ascribe great weight to the interpretation adopted by this independent body that was established specifically to supervise the application of that treaty. Its conclusions are corroborated by the jurisprudence or case law of the HRC. The Court will take due account of the interpretation of independent bodies created to monitor the human rights treaties. (Para 66).

Congo had ratified the African Charter on Human and Peoples' Rights so it followed that the practice of the African Commission on Human and Peoples' Rights

29

Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Serbia and Montenegro), ICJ Reports 2007 p 9, para. 88 and 198. Here the International Court cites and relies on the ICTY on the intent required for the crime of genocide in Kupreki et al. (IT-95-16-T, Judgment, 14 January 2000, para 636.) The International Court also refers to the European Court of Human Rights in the context of accounting for the parties submissions but does not rely on or make any further use of these references. It also cites the ICTY and the ICTR on the requirement of substantiality in establishing intent Krsti, IT-98-33-A, Appeals Chamber Judgment, 19 April 2004, paras 8-11 and the cases of Kayishema, Byilishema, and Semanza. 30 See the issues formulated in J Crawfords opening essay International Law as an Open System in his collected essays International Law as an Open System (CMP, London 2002). 31 Maroufidou v Sweden, No. 58/1979, para 9.3. 32 This is one of their arguments in the discussion of a substantive protection against arbitrary expulsion, see above. 33 Human Rights Committee, General Comment No 15: The position of aliens under the Covenant

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was relevant, and the International Court cites Kenneth Good34 and World Organization against Torture v Rwanda.35 (Para 67.)

It did not necessarily follow that the International Court should make any use of the jurisprudence of the Inter-American Court of Human Rights or the European Court of Human Rights. Seen from the vantage point of the ICJ,36 they would be regional mechanisms, and there may be opposition from countries from outside their jurisdiction. The International Court took the opposite starting point in dealing with the regional. It found further support in the case law of the Inter-American and European Courts, which was consistent with the International Courts own findings (para 68).37

9.

Conclusions: from Nottebohm to Diallo

Kurt Lipstein would have won Nottebohm for Lichtenstein had it been decided today. The International Court would not have invented the requirements of effective nationality and a meaningful connection to the relevant state as it did under strong pressure from the victors of the second world war. These countries had strong economic interests in not to open up other fora of review for many wartime confiscations. In Nottebohm, the International Court used all the tools at hand. State sovereignty: while states themselves decided on the law of citizenship, other states sovereignty give them the right to refuse recognition if there was no effective nationality or meaningful connection. The majority used evidence: a high

34 35

Kenneth Good v Republic of Botswana, No 313/05, para 204. World Organization against Torture and International Association of Democratic Lawyers, International Commission of Jurists, Interafrican Union for Human Rights v Rwanda , No 27/89, 46/91, 49/91, 99/93. 36 G Guillaume, The Use of Precedent by International Courts and Arbitrators, Journal of International Dispute Settlement (2011), 5-23, at 19, states that the International Court always abstained itself from the smallest reference to the rationales employed by the r egional jurisdictions. The International Courts Registrar would previously informally advise judges that the Court does not cite regional courts in their judgments. In the secretariats of the different UN human rights bodies there are different views on this, and this is reflected in their decisions and general comments. But here too the system of citations is opening up, and the International Court will certainly influence this development. See already the HRC in Yevdokimov & Rezanov v Russian Federation, /CCPR/C/101/D/1410/2005, 20.03.04, which adopts the European Court's jurisprudence on prisoners' voting rights in the interpretation of the ICCPR. 37 Again, with Sir Christopher Greenwood and Sir Kenneth Keith disagreeing in the interpretation of the case law.

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evidential threshold allowed a finding against Lichtenstein. The majority kept its considerations at the inter-state level: their focus was not the consequences for the individual in this case, or the many other individuals in similar cases. It was the interests of the states not wanting review of their confiscations that was given weight. Judge Owada has pointed out that the genuine-link theory had never been mentioned in the textbooks before the Nottebohm case was decided. He added,now, it is accepted that genuine-link has to exist in order to exercise the right of diplomatic protection. But that was, in a sense, judicial legislation, if you like to call it.38 The three judges in the minority had a very different emphasis. This is clearly brought out by the passage from Judge Reads dissent which is reproduced in the first section of this article including his view on the outcome of the majoritys decision: justice would not be done on any plane, national or international.39 The three dissenting judges included the International Courts subsequent President, Helge Klaestad, and they all three made clear and unconditional findings also on the factual issues. They did not accept the requirements of effective nationality or meaningful connection, and then went on to make findings of facts in favour of Lichtenstein, which would satisfy even these higher requirements. Before Diallo had reached the International Court, the Universal Declaration of Human Rights of 1948 had taken effect through human rights treaties, and a new system of international human rights protection included a number of courts and other international bodies. A judge and subsequent President of the International Court, Gilbert Guillaume, had voiced concern over the proliferation of international courts and tribunals more generally and suggested that references on points of international law may be made from other international courts to the International Courts.40 This proposal, which was not well received, illustrates the concern among some international lawyers that the International Court may be sidelined by the WTO Appellate Body, and other trade and human rights bodies, usually sharing a compulsory jurisdiction.

38

To Be an International Court Judge: A Conversation with Hisashi Owada, Judge at the International Court of Justice. Conversation with J.H.H. Weiler in the Hauser Global Law School Program, New York University School of Law, 9 November 2005. See http://www.law.nyu.edu/global/eventsandnews/distinguishedfellowslectureseries/ECM_DLV_015735 39 Lichtenstein v. Guatemala, 1955 I.C.J. 4 at 35, dissenting opinion of Judge Read. 40 G. Guillaume, 'The future of international judicial institutions', (1995) 44 ICLQ 848.

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In Diallo, it becomes much clearer how the open method the International Court has adopted, puts it at the top of the international law system. The development of customary international law by the International Court is now more likely to include human rights law, international trade law and other fields of international law which until recently seemed to fragment into autonomous regimes. The Court has provided itself with the tools to contribute to some level of unity and coherence of international law. The first feature of this transformation of public international law is in the relaxation of the restrictions of state consent. The law of the International Court is no longer predominantly on the jurisdictional issues: it is concerned with substantive law. Diallo in 2010 and Georgia v Russia41 in 2011 illustrate a gradual development. In the latter case the majority of the Court rejected the claim with reference to the requirement of exhausting the treaty procedures that Georgia had not followed. But the argument in the latter case as well, both by a strong minority, and also a cautious majority, points towards further lowering of the barriers of state consent when jurisdictional clauses are interpreted. The outcome will be the gradual strengthening of the International Courts contentious jurisdiction.42 Other features are the International Courts confirmation of customary international law in different areas of law, also outside the traditional core public international law discipline,43 as in Diallo, and the development of erga omnes, jus

41

The Judgment on the preliminary objections to jurisdiction raised by the Russian Federation on 1 April 2011 on the Application of the International Convention on the Elimination of All Forms of Racial Discrimination (Georgia v Russian Federation) shows how the current disagreement in international law divides the International Court judges, and the limits to the transformation in the International Courts approach to jurisdiction this far. The International Court concluded that it lacked jurisdiction under Article 22 of the International Convention on the Elimination of All Forms of Racial Discrimination (CERD) because, in the Courts view, Georgia was required, but had failed to, enter into negotiations with Russia over its claims under the CERD. The Intenational Courtpractically split down the middle with President Owada, Judges Simma, Abraham and Donoghue and Judge ad hoc Gaja disagreeing. 42 The current International Court President, Hisashi Owada, concluded his remarks to the UN group of government legal advisers at the Seminar on the Contentious Jurisdiction of the International Court of Justice on 26 October 2010, available at http://www.icjcij.org/presscom/files/5/16225.pdf?PHPSESSID=5c407 (accessed 15 April 2011), by underlining the importance of the recognition of the Courts compulsory jurisdiction: It is the inter -connected web of optional clause declarations and compromissory clauses which create a foundation upon which the Court can develop a continuous jurisdiction that does not have to be re-established with each new dispute as does jurisdiction by special agreement. 43 In the core discipline, the International Courts jurisprudence on the binding character of provisional measures following LaGrand (Germany v United States of America), Judgment, ICJ Rep 2001, 46 has been generally received by other international bodies with adjudicative functions.

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cogens and peremptory norms.44 The provisions about peremptory norms in the 1969 Vienna Convention (in articles 53 and 64) have played a role in some states withholding their ratification. The provisions about erga omnes and peremptory norms in the Draft Articles on the Responsibility of States for Internationally Wrongful Acts by the International Law Commission brings the gradual development of the law further forward. The recognition of jus cogens by arbitral tribunals and international courts before the International Court itself did so in Congo v Rwanda, is yet another. The objections against jus cogens by countries as France and Norway have in practice been withdrawn, in recognition of the court decisions. The citation of other courts and international bodies is another feature opening up for a dialogue across treaty regimes and other jurisdictions.45 The other courts and international bodies in this relationship may respond by taking a more close account of international law and its fundamental principles in applying the treaty base they may have for their activities. International courts and other bodies are increasingly provided with the tools of applying international law and securing coherence and unity, and with the International Court having this as its main business. Not only would Kurt Lipstein would have felt more at ease in today's ICJ, which itself now moves across the boundaries that divide the law, allowing him to combine arguments from different national traditions and disciplines within national and international law. He would also have won the case for Mr Nottebohm and Lichtenstein.

44

Spurring a considerable literature, see, in particular, A Orakhelashvili Peremptory Norms in International Law (OUP, Oxford 2006), and among the articles in E Cannizzaro (ed) The Law of Treaties Beyond the Vienna Convention (OUP, Oxford 2011), P Picone, The Distinction between Jus Cogens and Obligations Erga Omnes, at 411, and E Cannizzaro A Higher Law for Treaties? at 425. See also the precise analysis in P Daillier, M Forteau and A Pellet, Droit International Public, LGDJ, Paris 2009. 45 The former President of the ICJ at the time of writing, G Guillaume, adds in The Use of Precedent by International Courts and Arbitrators, Journal of International Dispute Settlement (2011), 5 -23, at 20, that the Courts policy of precedent essentially aims to assure a constructive dialogue with arbitration tribunals dealing with interstate disputes, primarily in border disputes. For their part, these tribunals are very attentive to the jurisprudence of the Court; by this method, coherence is satisfactorily assured in those matters. This more narrow view of the role of the International Court illustrates how radical a departure from previous doctrine that is taken in the new case law that Diallo contributes to. This can be contrasted with the views of the current President, see fn 40 above.

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