foregoing, the Court adjudicated only on the

specific case referred to it, namely, the Genocide

Overview of Cases Convention.
09/15/18 Cases
2. Territorial Dispute (Libyan Arab Jamahiriya/Chad)
1. Reservations to the Convention on the Prevention On 31 August 1990, the Libyan Arab Jamahiriya
and Punishment of the Crime of Genocide
filed in the Registry a notification of an Agreement
In November 1950, the General Assembly asked that it had concluded with Chad in Algiers on 31
the Court a series of questions as to the position of August 1989, in which it was agreed,inter alia ,
a State which attached reservations to its signature that in the absence of a political settlement of
of the multilateral Convention on Genocide if other their territorial dispute, they undertook to submit
States, signatories of the same Convention, that dispute to the Court. On 3 September 1990,
objected to these reservations. The Court
Chad filed an Application instituting proceedings
considered, in its Advisory Opinion of 28 May
1951, that, even if a convention contained no against the Libyan Arab Jamahiriya that was based
article on the subject of reservations, it did not upon the aforementioned Agreement and,
follow that they were prohibited. The character of subsidiarily, on the Franco-Libyan Treaty of
the convention, its purposes and its provisions Friendship and Good Neighbourliness of 10 August
must be taken into account. It was the 1955. The Parties subsequently agreed that the
compatibility of the reservation with the purpose proceedings had in fact been instituted by two
of the convention which must furnish the criterion
successive notifications of the Special Agreement
of the attitude of the State making the reservation,
and of the State which objected thereto. The Court constituted by the Algiers Agreement. The written
did not consider that it was possible to give an proceedings occasioned the filing, by each of the
absolute answer to the abstract question put to it. Parties, of a Memorial, a Counter-Memorial and a
As regards the effects of the reservation in Reply, accompanied by voluminous annexes, and
relations between States, the Court considered the oral proceedings were held in June and July
that a State could not be bound by a reservation to
1993.
which it had not consented. Every State was
The Court delivered its Judgment on 3 February
therefore free to decide for itself whether the
State which formulated the reservation was or was 1994. It began by observing that Libya considered
not a party to the convention. The situation that there was no existing boundary, and had
presented real disadvantages, but they could only asked the Court to determine one, while Chad
be remedied by the insertion in the convention of considered that there was an existing boundary,
an article on the use of reservations. A third and had asked the Court to declare what that
question referred to the effects of an objection by
boundary was. The Court then referred to the lines
a State which was not yet a party to the
claimed by Chad and by Libya, as illustrated in
convention, either because it had not signed it or
because it had signed but not ratified it. The Court sketch-map No. 1 reproduced in the Judgment (see
was of the opinion that, as regards the first case, it below p. 146) ; Libya’s claim was on the basis of a
would be inconceivable that a State which had not coalescence of rights and titles of the indigenous
signed the convention should be able to exclude inhabitants, the Senoussi Order, the Ottoman
another State from it. In the second case, the Empire, Italy and Libya itself ; while that of Chad
situation was different : the objection was valid,
was on the basis of a Treaty of Friendship and
but it would not produce an immediate legal effect
; it would merely express and proclaim the attitude Good Neighbourliness concluded by France and
which a signatory State would assume when it had Libya on 10 August 1955, or, alternatively, on
become a party to the convention. In all the
French effectivités, either in relation to, or them in the Annex. Having concluded that the
independently of, the provisions of earlier treaties. Contracting Parties wished, by the 1955 Treaty, to
The Court noted that it had been recognized by define their common frontier, the Court
both Parties that the 1955 Treaty between France considered what that frontier was. Accordingly it
and Libya was the logical starting-point for proceeded to a detailed study of the instruments
consideration of the issues before the Court. relevant to the case, i.e., (a) to the east of the line
Neither Party questioned the validity of the 1955 of 16° longitude, the Anglo-French Declaration of
Treaty, nor did Libya question Chad’s right to 1899 — which defined a line limiting the French
invoke against Libya any such provisions thereof as zone (or sphere of influence) to the north-east in
related to the frontiers of Chad. One of the the direction of Egypt and the Nile Valley, already
matters specifically addressed was the question of under British control — and the Convention of 8
frontiers, dealt with in Article 3 and Annex I. The September 1919 signed at Paris between Great
Court pointed out that if the 1955 Treaty did result Britain and France, which resolved the question of
in a boundary, this furnished the answer to the the location of the boundary of the French zone
issues raised by the Parties. Article 3 of the Treaty under the 1899 Declaration ; (b) to the west of the
provided that France and Libya recognized that the line of 16° longitude, the Franco-Italian Agreement
frontiers between, inter alia, the territories of (Exchange of Letters) of 1 November 1902, which
French Equatorial Africa and the territory of Libya referred to the map annexed to the Declaration of
were those that resulted from a number of 21 March 1899. The Court pointed out that that
international instruments in force on the date of map could only be the map in the Livre
the constitution of the United Kingdom of Libya jaune published by the French authorities in 1899
and reproduced in Annex I to the Treaty. In the and which showed a dotted line indicating the
view of the Court, the terms of the Treaty signified frontier of Tripolitania. 
that the Parties thereby recognized complete The Court then described the line resulting from
frontiers between their respective territories as those relevant international instruments.
resulting from the combined effect of all the Considering the attitudes adopted subsequently by
instruments listed in Annex I. By entering into the the Parties with regard to their frontiers, it
Treaty, the Parties recognized the frontiers to reached the conclusion that the existence of a
which the text of the Treaty referred ; the task of determined frontier had been accepted and acted
the Court was thus to determine the exact content upon by the Parties. Lastly, referring to the
of the undertaking entered into. The Court provision of the 1955 Treaty according to which it
specified in that regard that there was nothing to had been concluded for a period of 20 years and
prevent the Parties from deciding by mutual could be terminated unilaterally, the Court
agreement to consider a certain line as a frontier, indicated that that Treaty had to be taken to have
whatever the previous status of that line. If it was determined a permanent frontier, and observed
already a territorial boundary, it was confirmed that, when a boundary has been the subject of
purely and simply. agreement, its continued existence is not
It was clear to the Court that — contrary to what dependent upon the continuing life of the Treaty
was contended by the Libyan Arab Jamahiriya — under which that boundary was agreed.
the Parties had agreed to consider the instruments
listed as being in force for the purpose of Article 3, 3. Legal Consequences for States of the Continued
Presence of South Africa in Namibia (South West
since otherwise they would not have included
Africa) notwithstanding Security Council Resolution Rights between Iran and the United States, signed
276 (1970) at Tehran on 15 August 1955. In its Application,
Iran alleged that the destruction caused by several
On 27 October 1966, the General Assembly
decided that the Mandate for South West Africa warships of the United States Navy, in October
was terminated and that South Africa had no other 1987 and April 1988, to three offshore oil
right to administer the Territory. In 1969 the production complexes, owned and operated for
Security Council called upon South Africa to commercial purposes by the National Iranian Oil
withdraw its administration from the Territory, and Company, constituted a fundamental breach of
on 30 January 1970 it declared that the continued
various provisions of the Treaty of Amity and of
presence of the South African authorities in
international law. Time-limits for the filing of
Namibia was illegal and that all acts taken by the
South African Government on behalf of or written pleadings were then fixed and
concerning Namibia after the termination of the subsequently extended by two Orders of the
Mandate were illegal and invalid; it further called President of the Court. On 16 December 1993,
upon all States to refrain from any dealings with within the extended time-limit for filing the
the South African Government that were Counter-Memorial, the United States of America
incompatible with that declaration. On 29 July
filed a preliminary objection to the Court’s
1970, the Security Council decided to request of
the Court an advisory opinion on the legal jurisdiction. In accordance with the terms of Article
consequences for States of the continued presence 79, paragraph 3, of the Rules of Court, the
of South Africa in Namibia. In its Advisory Opinion proceedings on the merits were suspended ; by an
of 21 June 1971, the Court found that the Order of 18 January 1994, the Court fixed 1 July
continued presence of South Africa in Namibia was 1994 as the time-limit within which Iran could
illegal and that South Africa was under an present a written statement of its observations
obligation to withdraw its administration
and submissions on the objection, which was filed
immediately. It found that States Members of the
United Nations were under an obligation to within the prescribed time-limit. 
recognize the illegality of South Africa’s presence In its Judgment of 12 December 1996, the Court
in Namibia and the invalidity of its acts on behalf rejected the preliminary objection raised by the
of or concerning Namibia, and to refrain from any United States of America and found that it had
acts implying recognition of the legality of, or jurisdiction, on the basis of Article XXI, paragraph
lending support or assistance to, such presence 2, of the Treaty of 1955, to entertain the claims
and administration. Finally, it stated that it was
made by Iran under Article X, paragraph 1, of that
incumbent upon States which were not Members
of the United Nations to give assistance in the Treaty, which protects freedom of commerce and
action which had been taken by the United Nations navigation between the territories of the Parties. 
with regard to Namibia. When filing its Counter-Memorial, the United
States of America submitted a counter-claim
4. Oil Platforms (Islamic Republic of Iran v. United requesting the Court to adjudge and declare that,
States of America) through its actions in the Persian Gulf in 1987 and
On 2 November 1992, the Islamic Republic of Iran 1988, Iran had also breached its obligations under
filed in the Registry of the Court an Application Article X of the Treaty of 1955. Iran having
instituting proceedings against the United States of disputed the admissibility of that counter-claim
America with respect to the destruction of Iranian under Article 80, paragraph 1, of the Rules, the
oil platforms. The Islamic Republic founded the Court ruled on the matter in an Order of 10 March
jurisdiction of the Court upon a provision of the 1998. It found that the counter-claim was
Treaty of Amity, Economic Relations and Consular
admissible as such and formed part of the current concluded that the United States was only entitled
proceedings, and directed Iran to submit a Reply to have recourse to force under the provision in
and the United States to submit a Rejoinder. Those question if it was acting in self-defence. The United
pleadings were filed within the extended time- States could exercise such a right of self-defence
limits thus fixed. In its Order of 1998, the Court only if it had been the victim of an armed attack by
also stated that it was necessary, in order to Iran and the United States actions must have been
ensure strict equality between the Parties, to necessary and proportional to the armed attack
reserve the right of Iran to present its views in against it. After carrying out a detailed
writing a second time on the counter-claim, in an examination of the evidence provided by the
additional pleading, the filing of which might be Parties, the Court found that the United States had
the subject of a subsequent Order. Such an Order not succeeded in showing that these various
was made by the Vice-President on 28 August conditions were satisfied, and concluded that the
2001, and Iran subsequently filed its additional United States was therefore not entitled to rely on
pleading within the time-limits fixed. Public sittings the provisions of Article XX, paragraph 1 (d), of the
on the claim of Iran and the counter-claim of the 1955 Treaty.
United States of America were held from 17 The Court then examined the issue of whether the
February to 7 March 2003. United States, in destroying the platforms, had
The Court delivered its Judgment on 6 November impeded their normal operation, thus preventing
2003. Iran had contended that, in attacking on two Iran from enjoying freedom of commerce
occasions and destroying three offshore oil “between the territories of the two High
production complexes, owned and operated for Contracting Parties” as guaranteed by the 1955
commercial purposes by the National Iranian Oil Treaty (Art. X, para. 1). It concluded that, as
Company, the United States had violated freedom regards the first attack, the platforms attacked
of commerce between the territories of the Parties were under repair and not operational, and that at
as guaranteed by the 1955 Treaty of Amity, that time there was thus no trade in crude oil from
Economic Relations and Consular Rights between those platforms between Iran and the United
the United States and Iran. It sought reparation for States. Accordingly, the attack on those platforms
the injury thus caused. The United States had could not be considered as having affected
argued in its counter-claim that it was Iran which freedom of commerce between the territories of
had violated the 1955 Treaty by attacking vessels the two States. The Court reached the same
in the Gulf and otherwise engaging in military conclusion in respect of the later attack on two
actions that were dangerous and detrimental to other complexes, since all trade in crude oil
commerce and navigation between the United between Iran and the United States had been
States and Iran. The United States likewise sought suspended as a result of an embargo imposed by
reparation. an Executive Order adopted by the American
The Court first considered whether the actions by authorities. The Court thus found that the United
American naval forces against the Iranian oil States had not breached its obligations to Iran
complexes were justified under the 1955 Treaty as under Article X, paragraph 1, of the 1955 Treaty
measures necessary to protect the essential and rejected Iran’s claim for reparation.
security interests of the United States (Art. XX, In regard to the United States counter-claim, the
para. 1 (d), of the Treaty). Interpreting the Treaty Court, after rejecting the objections to jurisdiction
in light of the relevant rules of international law, it and admissibility raised by Iran, considered
whether the incidents attributed by the United With respect to the interpretation of that
States to Iran infringed freedom of commerce or provision, the Court first observed that, although
navigation between the territories of the Parties as Article VIII gives discretion to a State party to the
guaranteed by Article X, paragraph 1, of the 1955 Convention to reject the request for a special
Treaty. The Court found that none of the ships permit, whether the killing, taking and treating of
alleged by the United States to have been whales pursuant to a requested special permit is
damaged by Iranian attacks was engaged in for purposes of scientific research cannot depend
commerce or navigation between the territories of simply on that State’s perception. In the view of
the two States. Nor did the Court accept the the Court, the two elements of the phrase for
generic claim by the United States that the actions purposes of (1) scientific research (2) are
of Iran had made the Persian Gulf unsafe for cumulative.
shipping, concluding that, according to the As regards the application of that same provision,
evidence before it, there was not, at the relevant the Court indicated that JARPA II could broadly be
time, any actual impediment to commerce or described as a “scientific research” programme. It
navigation between the territories of Iran and the then turned to the question of whether it was for
United States. The Court accordingly rejected the purposes of scientific research that lethal methods
United States counter-claim for reparation. were used. To answer that question, it examined
5. Whaling in the Antarctic (Australia v. Japan: New whether the programme’s design and
Zealand intervening) implementation were reasonable in relation to
Proceedings were instituted on 31 May 2010 by achieving its stated research objectives. The Court
Australia, which accused Japan of pursuing “a considered that the evidence before it did not
large-scale program of whaling under the Second establish that such was the case. It concluded that
Phase of its Japanese Whale Research Program the special permits issued by Japan for the killing,
under Special Permit in the Antarctic (‘JARPA II’)”, taking and treating of whales in connection with
in breach of obligations assumed by Japan under JARPA II were not granted “for purposes of
the 1946 International Convention for the scientific research” pursuant to Article VIII,
Regulation of Whaling and of other international paragraph 1, of the 1946 Convention.
obligations for the preservation of marine The Court then turned to the implications of that
mammals and the marine environment. conclusion, in light of Australia’s contention that
In the Judgment it rendered on 31 March 2014, the Japan had breached several provisions of the
Court first found that it had jurisdiction to Schedule annexed to the said Convention. Having
entertain the case, rejecting Japan’s argument that found that Japan had indeed breached some of the
the dispute fell within the scope of a reservation provisions invoked (namely the moratoriums on
contained in Australia’s declaration recognizing the commercial whaling and factory ships, and the
Court’s jurisdiction as compulsory. It then turned prohibition on commercial whaling in the Southern
to the question of the interpretation and Ocean Sanctuary), it considered the question of
application of Article VIII of the 1946 Convention, remedies. Since JARPA II was an ongoing
paragraph 1 of which states that the parties “may programme, it ordered Japan to revoke any extant
grant to any of [their] nationals a special permit authorization, permit or licence to kill, take or
authorizing that national to kill, take and treat treat whales in relation to JARPA II, and to refrain
whales for purposes of scientific research”. from granting any further permits under Article
VIII, paragraph 1, of the Convention, in pursuance Rica’s right of free navigation were not required to
of that programme. purchase Nicaraguan tourist cards ; that the
6. Dispute regarding Navigational and Related inhabitants of the Costa Rican bank of the San Juan
Rights (Costa Rica v. Nicaragua) River had the right to navigate on the river
On 29 September 2005, Costa Rica filed an between the riparian communities for the
Application instituting proceedings against purposes of fulfilling essential needs of everyday
Nicaragua in a dispute concerning the navigational life ; that Costa Rica had the right of navigation on
and related rights of Costa Rica on a section of the the San Juan River with official vessels used solely,
San Juan River, the southern bank of which forms in specific situations, to provide essential services
the boundary between the two States provided for for the inhabitants of the riparian areas where
by an 1858 bilateral treaty. In its Application, Costa expeditious transportation is a condition for
Rica affirmed that “Nicaragua has — in particular meeting the inhabitants’ requirements ; that Costa
since the late 1990s — imposed a number of Rica did not have the right of navigation on the San
restrictions on the navigation of Costa Rican boats Juan River with vessels carrying out police
and their passengers on the San Juan River”, in functions ; that Costa Rica did not have the right of
violation of Article VI of the 1858 Treaty, which navigation on the San Juan River for the purposes
“granted to Nicaragua sovereignty over the waters of the exchange of personnel among the police
of the San Juan River, recognizing at the same time border posts along the right bank of the river or
important rights to Costa Rica”.  for the re-supply of these posts, with official
Costa Rica filed its Memorial and Nicaragua its equipment, including service arms and
Counter-Memorial within the time-limits fixed by ammunition.
the Court’s Order of 29 November 2005. By an As regards Nicaragua’s right to regulate navigation
Order of 9 October 2007, the Court authorized the on the San Juan River, in that part where
submission of a Reply by Costa Rica and a navigation is common, the Court found that
Rejoinder by Nicaragua. Those pleadings were filed Nicaragua had the right to require Costa Rican
within the prescribed time-limits. vessels and their passengers to stop at the first
Following public hearings held in March 2009, the and last Nicaraguan post on their route along the
Court rendered its Judgment on 13 July 2009. San Juan River ; that Nicaragua had the right to
As regards Costa Rica’s navigational rights on the require persons travelling on the San Juan River to
San Juan River under the 1858 Treaty, in that part carry a passport or an identity document ; that
where navigation is common, the Court ruled that Nicaragua had the right to issue departure
Costa Rica had the right of free navigation on the clearance certificates to Costa Rican vessels
San Juan River for purposes of commerce ; that the exercising Costa Rica’s right of free navigation but
right of navigation for purposes of commerce did not have the right to request the payment of a
enjoyed by Costa Rica included the transport of charge for the issuance of such certificates ; that
passengers ; that the right of navigation for Nicaragua had the right to impose timetables for
purposes of commerce enjoyed by Costa Rica navigation on vessels navigating on the San Juan
included the transport of tourists ; that persons River ; and that Nicaragua had the right to require
travelling on the San Juan River on board Costa Costa Rican vessels fitted with masts or turrets to
Rican vessels exercising Costa Rica’s right of free display the Nicaraguan flag.
navigation were not required to obtain Nicaraguan As regards subsistence fishing, the Court found
visas ; that persons travelling on the San Juan River that fishing by the inhabitants of the Costa Rican
on board Costa Rican vessels exercising Costa
bank of the San Juan River for subsistence According to their records, they found Tarek
purposes from that bank must be respected by Hassan in the house armed with an AK-47 machine
Nicaragua as a customary right. gun and arrested him on suspicion of being a
As regards Nicaragua’s compliance with its combatant or a civilian posing a threat to security.
international obligations under the 1858 Treaty, He was taken later that day to Camp Bucca, a
the Court found that Nicaragua was not acting in detention facility in Iraq operated by the United
accordance with its obligations under the 1858 States. Parts of the camp were also used by the
Treaty when it required persons travelling on the United Kingdom to detain and interrogate
San Juan River on board Costa Rican vessels detainees. Following interrogation by both United
exercising Costa Rica’s right of free navigation to States and United Kingdom authorities, Tarek
obtain Nicaraguan visas ; that Nicaragua was not Hassan was deemed to be of no intelligence value
acting in accordanc with its obligations under the and, according to the records, was released on or
1858 Treaty when it required persons travelling on around 2 May 2003 at a drop-off point in Umm
the San Juan River on board Costa Rican vessels Qasr. His body was discovered, bearing marks of
exercising Costa Rica’s right of free navigation to torture and execution, some 700 kilometres away
purchase Nicaraguan tourist cards ; and that in early September 2003.
Nicaragua was not acting in accordance with its In 2007 the applicant brought proceedings in the
obligations under the 1858 Treaty when it required English administrative court, but these were
the operators of vessels exercising Costa Rica’s dismissed on the grounds that Camp Bucca was a
right of free navigation to pay charges for United States rather than a United Kingdom
departure clearance certificates. military establishment.
The Court rejected all the other submissions In his application to the European Court, the
presented by Costa Rica and Nicaragua. applicant alleged that his brother was arrested and
7. Hassan v UK detained by British forces in Iraq and subsequently
Ratio: ECHR Grand Chamber – Article 5-1, Lawful found dead in unexplained circumstances. He
arrest or detention, Internment in Iraq under Third complained under Article 5 — 1, 2, 3 and 4 of the
and Fourth Geneva Conventions: no violation, Convention that the arrest and detention were
Article 1, Jurisdiction of states, Responsibility of arbitrary and unlawful and lacking in procedural
states safeguards and under Articles 2, 3 and 5 that the
Territorial jurisdiction in relation to detention of United Kingdom authorities had failed to carry out
Iraqi national by coalition of armed forces in Iraq an investigation into the circumstances of the
Facts – In March 2003 a coalition of armed forces detention, ill-treatment and death.
led by the United States of America invaded Iraq. Law – Articles 2 and 3: There was no evidence to
After occupying the region of Basrah, the British suggest that Tarek Hassan had been ill-treated
army started arresting high-ranking members of while in detention such as to give rise to an
the ruling Ba’ath Party and the applicant, a senior obligation under Article 3 to carry out an official
member of the party, went into hiding leaving his investigation. Nor was there any evidence that the
brother Tarek behind to protect the family home in United Kingdom authorities were responsible in
Umm Qasr. On the morning of 23 April 2003 a any way, directly or indirectly, for his death, which
British Army unit came to the house hoping to had occurred some four months after his release
arrest the applicant. from Camp Bucca, in a distant part of the country
not controlled by United Kingdom forces. In the
absence of any evidence of the involvement of the Third and Fourth Geneva Conventions and for
United Kingdom State agents in the death, or even deciding whether they should be released. While it
of any evidence that the death occurred within was true that certain operational aspects relating
territory controlled by the United Kingdom, no to Tarek Hassan’s detention at Camp Bucca were
obligation to investigate under Article 2 could transferred to United States forces (such as
arise. escorting him to and from the compound and
Conclusion: inadmissible (manifestly ill-founded). guarding him elsewhere in the camp) the United
Article 5 — 1, 2, 3 and 4 Kingdom had retained authority and control over
(a) Jurisdiction all aspects of the detention relevant to the
(i) Period between capture by British troops and applicant’s complaints under Article 5.
admission to Camp Bucca: Tarek Hassan was within Tarek Hassan had thus been within the jurisdiction
the physical power and control of the United of the United Kingdom from the moment of his
Kingdom soldiers and therefore fell within United capture on 23 April 2003 until his release, most
Kingdom jurisdiction. The Court rejected the probably at Umm Qasr on 2 May 2003.
Government’s argument that jurisdiction should Conclusion: within the jurisdiction (unanimously).
not apply in the active hostilities phase of an (b) Merits: There were important differences of
international armed conflict, where the agents of context and purpose between arrests carried out
the Contracting State were operating in territory of during peacetime and the arrest of a combatant in
which they were not the occupying power, and the course of an armed conflict. Detention under
where the conduct of the State should instead be the powers provided for in the Third and Fourth
subject to the requirements of international Geneva Conventions was not congruent with any
humanitarian law. In the Court’s view, such a of the permitted grounds of deprivation of liberty
conclusion was inconsistent with its own case-law set out in subparagraphs (a) to (f) of Article 5-1.
and with the case-law of the International Court of The United Kingdom had not lodged any formal
Justice holding that international human rights law request under Article 15 of the Convention
and international humanitarian law could apply (derogation in time of emergency) allowing it to
concurrently.* derogate from its obligations under Article 5 in
(ii) Period after admission to Camp Bucca: The respect of its operations in Iraq. Instead, the
Court did not accept the Government’s argument Government had in their submissions requested
that jurisdiction should be excluded for the period the Court to disapply United Kingdom’s obligations
following Tarek Hassan’s admission to Camp Bucca under Article 5 or in some other way interpret
as it involved a transfer of custody from the United them in the light of the powers of detention
Kingdom to the United States. Tarek Hassan was available to it under international humanitarian
admitted to the Camp as a United Kingdom law.
prisoner. Shortly after his admission, he was taken The starting point for the Court’s examination was
to a compound entirely controlled by United its constant practice of interpreting the Convention
Kingdom forces. Under the Memorandum of in the light of the 1969 Vienna Convention on the
Understanding between the United Kingdom, Law of Treaties, Article 31-3 of which made it
United States and Australian Governments relating necessary when interpreting a treaty to take into
to the transfer of custody of detainees it was the account (a) any subsequent agreement between
United Kingdom which had responsibility for the the parties regarding the interpretation of the
classification of United Kingdom detainees under treaty or the application of its provisions, (b) any
subsequent practice in the application of the treaty co-existence of the safeguards provided by
which establishes the agreement of the parties international humanitarian law and by the
regarding its interpretation and (c) any relevant Convention in time of armed conflict, the grounds
rules of international law applicable in the of permitted deprivation of liberty set out under
relations between the parties. subparagraphs (a) to (f) should be accommodated,
As to Article 31-3 (a), there had been no as far as possible, with the taking of prisoners of
subsequent agreement between the Contracting war and the detention of civilians who pose a risk
States as to the interpretation of Article 5 in to security under the Third and Fourth Geneva
situations of international armed conflict. Conventions. The Court was mindful of the fact
However, as regards Article 31-3(b), the Court had that internment in peacetime did not fall within
previously stated that a consistent practice on the the scheme of deprivation of liberty governed by
part of the Contracting States, subsequent to their Article 5 of the Convention without the exercise of
ratification of the Convention, could be taken as the power of derogation under Article 15. It could
establishing their agreement not only as regards only be in cases of international armed conflict,
interpretation but even to modify the text of the where the taking of prisoners of war and the
Convention. The practice of the Contracting States detention of civilians who pose a threat to security
was not to derogate from their obligations under were accepted features of international
Article 5 in order to detain persons on the basis of humanitarian law, that Article 5 could be
the Third and Fourth Geneva Conventions during interpreted as permitting the exercise of such
international armed conflicts. That practice was broad powers.
mirrored by State practice in relation to the As with the grounds of permitted detention set out
International Covenant for the Protection of Civil in those subparagraphs, deprivation of liberty
and Political Rights. pursuant to powers under international
As to the criterion contained in Article 31-3(c), the humanitarian law had to be ‘lawful’ to preclude a
Court reiterated that the Convention had to be violation of Article 5-1. That meant that detention
interpreted in harmony with other rules of had to comply with the rules of international
international law, including the rules of humanitarian law, and most importantly, that it
international humanitarian law. The Court had to should be in keeping with the fundamental
endeavour to interpret and apply the Convention purpose of Article 5-1, which was to protect the
in a manner which was consistent with the individual from arbitrariness.
framework under international law delineated by As regards procedural safeguards, the Court
the International Court of Justice. Accordingly, the considered that, in relation to detention taking
lack of a formal derogation under Article 15 of the place during an international armed conflict,
Convention did not prevent the Court from taking Article 5-2 and 4 must also be interpreted in a
account of the context and the provisions of manner which took into account the context and
international humanitarian law when interpreting the applicable rules of international humanitarian
and applying Article 5 in the applicant’s case. law. Articles 43 and 78 of the Fourth Geneva
Nonetheless, even in situations of international Convention provided that internment ‘shall be
armed conflict, the safeguards under the subject to periodical review, if possible every six
Convention continued to apply, albeit interpreted months, by a competent body’. Whilst it might not
against the background of the provisions of be practicable, in the course of an international
international humanitarian law. By reason of the armed conflict, for the legality of detention to be
determined by an independent ‘court’ in the sense Conventions, and was not arbitrary. Moreover, in
generally required by Article 5-4, nonetheless, if the light of his clearance for release and physical
the Contracting State is to comply with its release within a few days of being brought to the
obligations under Article 5-4 in this context, the Camp, it was unnecessary for the Court to examine
‘competent body’ should provide sufficient whether the screening process constituted an
guarantees of impartiality and fair procedure to adequate safeguard to protect against arbitrary
protect against arbitrariness. Moreover, the first detention. Finally, it would appear from the
review should take place shortly after the person is context and the questions that Tarek Hassan was
taken into detention, with subsequent reviews at asked during the two screening interviews that the
frequent intervals, to ensure that any person who reason for his detention would have been
does not fall into one of the categories subject to apparent to him. Conclusion: no violation (thirteen
internment under international humanitarian law votes to four).
is released without undue delay. Article 5-3, 8. Hungary v Slovakia
however, had no application in the present case On 2 July 1993 the Governments of the Republic of
since Tarek Hassan was not detained in accordance Hungary and of the Slovak Republic notified jointly
with the provisions of paragraph 1(c) of Article 5. to the Registry of the Court a Special Agreement,
Turning to the facts of the applicant’s case, the signed at Brussels on 7 April 1993, for the
Court considered that the United Kingdom submission to the Court of certain issues arising
authorities had had reason to believe that Tarek out of differences which had existed between the
Hassan, who was found by British troops armed Republic of Hungary and the Czech and Slovak
and on the roof of his brother’s house, where Federal Republic regarding the implementation
other weapons and documents of a military and the termination of the Budapest Treaty of 16
intelligence value had been retrieved, might be September 1977 on the Construction and
either a person who should be detained as a Operation of the Gabčíkovo-Nagymaros Barrage
prisoner of war or whose internment was System and on the construction and operation of
necessary for imperative reasons of security, both the “provisional solution”. The Special Agreement
of which provided a legitimate ground for capture records that the Slovak Republic is in this respect
and detention under the Third and Fourth Geneva the sole successor State of the Czech and Slovak
Conventions. Almost immediately following his Federal Republic. In Article 2 of the Special
admission to Camp Bucca, he had been subject to Agreement, the Court was asked to say : (a)
a screening process in the form of two interviews whether the Republic of Hungary was entitled to
by United States and United Kingdom military suspend and subsequently abandon, in 1989, the
intelligence officers, which had led to his being works on the Nagymaros project and on that part
cleared for release since it was established that he of the Gabčíkovo project for which the Treaty
was a civilian who did not pose a threat to attributed responsibility to the Republic of Hungary
security. The evidence pointed to his having been ; (b) whether the Czech and Slovak Federal
physically released from the Camp shortly Republic was entitled to proceed, in November
thereafter. 1991, to the “provisional solution” and to put into
Against this background, it would appear that operation from October 1992 this system (the
Tarek Hassan’s capture and detention was damming up of the Danube at river kilometre
consistent with the powers available to the United 1,851.7 on Czechoslovak territory and the resulting
Kingdom under the Third and Fourth Geneva consequences for the water and navigation course)
; and (c) what were the legal effects of the according to the Judgment of the Court, Slovakia
notification, on 19 May 1992, of the termination of was to compensate Hungary for the damage it had
the Treaty by the Republic of Hungary. The Court sustained on account of the putting into operation
was also requested to determine the legal of the dam by Czechoslovakia and its maintenance
consequences, including the rights and obligations in service by Slovakia.
for the Parties, arising from its Judgment on the On 3 September 1998, Slovakia filed in the Registry
above-mentioned questions. Each of the Parties of the Court a request for an additional Judgment
filed a Memorial, a Counter Memorial and a Reply in the case. Slovakia considered such a Judgment
accompanied by a large number of annexes. necessary because of the unwillingness of Hungary
In June 1995, the Agent of Slovakia requested the to implement the Judgment delivered by the Court
Court to visit the site of the Gabčíkovo-Nagymaros on 25 September 1997. In its request, Slovakia
hydroelectric dam project on the Danube for the stated that the Parties had conducted a series of
purpose of obtaining evidence. A “Protocol of negotiations of the modalities for executing the
Agreement” was thus signed in November 1995 1997 Judgment and had initialled a draft
between the two Parties. The visit to the site, the Framework Agreement, which had been approved
first such visit by the Court in its 50-year history, by the Slovak Government. However, according to
took place from 1 to 4 April 1997 between the first the latter, Hungary had decided to postpone its
and second rounds of oral pleadings. approval and had even disavowed it when the new
In its Judgment of 25 September 1997, the Court Hungarian Government had come into office.
asserted that Hungary was not entitled to suspend Slovakia requested the Court to determine the
and subsequently abandon, in 1989, the works on modalities for executing the Judgment, and, as the
the Nagymaros project and on the part of the basis for its request, invoked the Special
Gabčíkovo project for which it was responsible, Agreement signed at Brussels on 7 April 1993 by
and that Czechoslovakia was entitled to proceed, itself and Hungary. After the filing by Hungary of a
in November 1991, to the “provisional solution” as statement of its position on Slovakia’s request, the
described by the terms of the Special Agreement. Parties resumed negotiations and informed the
On the other hand, the Court stated that Court on a regular basis of the progress in them.
Czechoslovakia was not entitled to put into 9. Appeal Relating to the Jurisdiction of the ICAO
operation, from October 1992, the barrage system Council (India v. Pakistan)
in question and that Slovakia, as successor to In February 1971, following an incident involving
Czechoslovakia, had become Party to the Treaty of the diversion to Pakistan of an Indian aircraft, India
suspended overflights of its territory by Pakistan
16 September 1977 as from 1 January 1993. The
civil aircraft. Pakistan took the view that this action
Court also decided that Hungary and Slovakia must
was in breach of the 1944 Convention on
negotiate in good faith in the light of the prevailing International Civil Aviation and the International
situation and must take all necessary measures to Air Services Transit Agreement and complained to
ensure the achievement of the objectives of the the Council of the International Civil Aviation
said Treaty, in accordance with such modalities as Organization. India raised preliminary objections to
they might agree upon. Further, Hungary was to the jurisdiction of the Council, but these were
rejected and India appealed to the Court. During
compensate Slovakia for the damage sustained by
the written and oral proceedings, Pakistan
Czechoslovakia and by Slovakia on account of the contended, inter alia , that the Court was not
suspension and abandonment by Hungary of works competent to hear the appeal. In its Judgment of
for which it was responsible, whereas, again 18 August 1972, the Court found that it was
competent to hear the appeal of India. It further
decided that the ICAO Council was competent to
deal with both the Application and the Complaint
of which it had been seised by Pakistan, and
accordingly dismissed the appeal laid before it by
the Government of India.

10. Fisheries Jurisdiction (United Kingdom of Great

Britain and Northern Ireland v. Iceland)

On 14 April and 5 June 1972, respectively, the

United Kingdom and the Federal Republic of
Germany instituted proceedings against Iceland
concerning a dispute over the proposed extension
by Iceland, as from 1 September 1972, of the limits
of its exclusive fisheries jurisdiction from a distance
of 12 to a distance of 50 nautical miles. Iceland
declared that the Court lacked jurisdiction, and
declined to be represented in the proceedings or
file pleadings. At the request of the United
Kingdom and the Federal Republic, the Court in
1972 indicated, and in 1973 confirmed, provisional
measures to the effect that Iceland should refrain
from implementing, with respect to their vessels,
the new regulations regarding the extension of the
zone of its exclusive fishing rights, and that the
annual catch of those vessels in the disputed area
should be limited to certain maxima. In Judgments
delivered on 2 February 1973, the Court found that
it possessed jurisdiction ; and in Judgments on the
merits of 25 July 1974, it found that the Icelandic
regulations. constituting a unilateral extension of
exclusive fishing rights to a limit of 50 nautical
miles were not opposable to either the United
Kingdom or the Federal Republic, that Iceland was
not entitled unilaterally to exclude their fishing
vessels from the disputed area, and that the
Parties were under mutual obligations to
undertake negotiations in good faith for the
equitable solution of their differences.
11. *go to 8*