Le blog du Prof. Sayeman BULA-BULA

Specialiste du droit international public

Dissenting opinion of Judge BULA-BULA

[…Extraits…]

La version intégrale est publiée dans l’Affaire du mandat d’arrêt du 11 avril 2000, (R. D. du Congo c. Royaume de Belgique), Cour internationale de Justice, Recueil 2000, pp. 218-228 ;

DISSENTING OPINION OF JUDGE BULA-BULA [Translation]

TABLE OF CONTENTS

Paragraphs

INTRODUCTION                                                                                                        1-5

I. POINTS OF CONCURRENCE                                                                                  6-7

11. POINTS OF DISSENT                                                                                         8-28

A.Urgency                                                                                   9-14

B.Irreparable prejudice                                                               15-23

C.Preservation of rights                                                             24-28

111. CONCLUSION                                                                                                 29-37

INTRODUCTION

1. It was with regret that I voted against the main clause of the opera­tive part of the Order of 8 December 2000 concerning the indication of provisional measures. I understand that the Court was sharply divided over the question. It thus appeared wise to seek a compromise among the Members of the Court.

2. Such a reason may be acceptable, particularly since the present case is at a purely procedural stage which does not prejudge the rights of either Party.

3. It is precisely the interlocutory nature of the Order which prompts me to believe that the compromise ultimately adopted by the Court lacks balance. Thus, I am of the opinion that the Court should have clearly indicated a minimal provisional measure which I find justified under the circumstances. Without necessarily following the terms of the request, the Court could have prescribed this measure proprio motu, as permitted by its Statute (Art. 41) and Rules (Art. 75).

4. I believe that the Court should give a certain, clear and precise response, whether affirmative or negative, to the Congo’s request. In other words, it should either deny it or grant it. The statement « the cir­cumstances, as they now present themselves to the Court, are not such as to require the exercise of its power under Article 41 of the Statute to indi­cate provisional measures » (paragraph 2 of the operative part of the Order) does not appear, on first view, to be without ambiguity. We have become accustomed to the circumlocutions of a principal political organ of the United Nations when called upon to take difficult decisions. We must now get used to similar pronouncements from the principal judicial organ of the United Nations. Do the teachings, in the broad sense, of the jurisprudence benefit from this?

5.That is one of the main reasons for my dissent (1), but I do agree with the majority of the Court on certain points (II). Finally, I shall describe the solution which I find appropriate (III).

* * *

III. CONCLUSION

29. In short, I consider that it would have been appropriate and legiti­mate for the Court to indicate a provisional measure ordering the suspension of the warrant of 11 April 2000 pending the Court’s decision on the merits, to be rendered with all expedition in light of the importance of the case.

30.I therefore find the Respondent’s request that the Court deny all provisional measures to be altogether excessive. Also, I do not agree with the Court’s analysis of the current circumstances, which, in its view, do not require it to exercise its power as defined in Article 41 of the Statute.

31.Failing the minimal provisional measure set out above, the Court could have included my amendment, worded as follows, in the operative part of the draft Order:

« 2. (a) Finds that the Kingdom of Belgium, which has knowledge of the nature of the claim by the Democratic Republic of the Congo, should consider the impact that a judgment uphold­ing that claim could have on the execution of the warrant of 11 April 2000 and should decide whether and to what extent it ought therefore to reconsider its warrant;

(b) Finds that the Democratic Republic of the Congo, which has knowledge of the nature of the claim by the Kingdom of Belgium, should consider the impact that a judgment uphold­ing that claim could have on the execution of the arrest warrant of 11 April 2000 and should decide whether and to what extent it ought therefore to reconsider its position. »

As Judge Oda has recalled :

« through the Court’s jurisprudence it is established that, if the Court appears prima facie to possess jurisdiction, it may (if it thinks fit) indicate provisional measures, and this rule has always been inter­preted most generously in favour of the applicant, lest a denial be needlessly prejudicial to the continuation of the case. Thus the pos­sibility of indicating provisional measures may be denied in limine only in a case where the lack of jurisdiction is so obvious as to require no further examination of the existence of jurisdiction in a later phase. » (Declaration of Acting President Oda, appended to the Order of 14 April 1992 concerning provisional measures in the case concerning Questions of Interpretation and Application of the 1971 Montreal Convention arising from the Aerial Incident at Lockerbie (Libyan Arab Jamahiriya v. United States of America), I.C.J. Reports 1992, p. 130.)

33. The doctrine is in general agreement in acknowledging that the Court’s power to indicate provisional measures aims to « prevent its deci­sions from being stultified » (G. Fitzmaurice, The Law and Procedure of the International Court of Justice, Vol. II, p. 542, 1986, quoted by Judge Ajibola in his dissenting opinion in the case concerning Questions of Interpretation and Application of the 1971 Montreal Convention arising from the Aerial Incident at Lockerbie (Libyan Arab Jamahiriya v. United States of America), I.C.J. Reports 1992, p. 194).

34.Can I consider that the Court in the present case has interpreted the request generously? Can it be asserted that there is no reason to fear that the case could be removed from the Court’s List? Is there any doubt as to the very high importance of this case on the merits? Yet a very wide majority of the Members of the Court agree that the Court has prima facie jurisdiction in this case.

35.It is to be hoped that the Court’s attitude, apparently dictated by the institution’s own considerations of judicial policy, is not seen by cer­tain litigants, first and foremost the Applicant in the present proceedings, as a denial of justice. What is at stake is promotion of the rule of law. For, as Lacordaire said, as between the weak and the strong, freedom oppresses and the law protects. Is not the « freedom » found in dealings between a former colonial Power, now an industrialized country, and its weakened, former colony an example of this?

36.Admittedly, the Applicant appears not to have made an entirely coherent case before the Court. It is undeniably true that a litigant bring­ing judicial proceedings is under an obligation, pursuant to the rules of procedure, to act in a manner calculated to maximize its chances of pre­vailing, even within the relatively short time-limits for incidental proceed­ings.

37.No one, moreover, can be ignorant of the role played, especially lately, by public opinion. It is however sometimes important to cast an objective eye on the « hasty judgments of public opinion or the mass media » (dissenting opinion of Judge Bedjaoui in the case concerning Questions of Interpretation and Application of the 1971 Montreal Con­vention arising from the Aerial Incident at Lockerbie (Libyan Arab Jamahiriya v. United States of America), I. C J. Reports 1992, p. 148).

(Signed) Sayeman BULA-BULA.

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