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Published online by Cambridge University Press: 20 January 2017
The International Court of Justice rendered four judgments in 2012: on February 3, a ruling on the merits in Jurisdictional Immunities of the State (Germany v. Italy; Greece intervening), finding that Italy had violated its obligations under customary international law and requiring Italy to ensure that the decisions of its judicial authorities that infringed Germany’s immunities would cease to have effect; on June 19, a ruling on the compensation owed by the respondent in Diallo (Guinea v. Democratic Republic of the Congo), awarding Guinea $85,000 for non material injury to Diallo and $10,000 for material injury to his personal property;on July 20, a ruling on jurisdiction, admissibility, and the merits in Questions Relating to the Obligation to Prosecute or Extradite (Belgium v. Senegal), finding jurisdiction and admissibility, and holding that Senegal had breached its obligations under Articles 6 and 7 the UN Convention Against Torture (CAT); and on November 19, a ruling on admissibility and the merits in Territorial and Maritime Dispute (Nicaragua v. Colombia), finding admissible one of Nicaragua’s final submissions(which Colombia had challenged as a new claim), deciding that Colombia has sovereignty over a number of contested maritime features, and establishing a single maritime boundary delimiting the continental shelf and exclusive economic zones of the two countries.
1 Jurisdictional Immunities of the State (Ger. v. It.; Greece intervening) (Int’l Ct. Justice Feb. 3, 2012). All the materials of the Court cited in this report are available on its website, http://www.icj-cij.org.
2 Diallo (Guinea v. Dem. Rep. Congo), Compensation Owed by the Democratic Republic of the Congo to the Republic of Guinea (Int’l Ct. Justice June 19, 2012) [hereinafter Diallo, Compensation].
3 Questions Relating to the Obligation to Prosecute or Extradite (Belg. v. Sen.) (Int’l Ct. Justice July 20, 2012).
4 Territorial and Maritime Dispute (Nicar. v. Colom.) (Int’l Ct. Justice Nov. 19, 2012).
5 Judgment No. 2867 of the Administrative Tribunal of the International Labour Organization upon a Complaint Filed Against the International Fund for Agricultural Development, Advisory Opinion (Int’l Ct. Justice Feb. 1, 2012). The Court also issued orders fixing the time limits in a number of other pending cases.
6 The decisions of other tribunals may be discussed for a variety of reasons. I refer here to citations that indicate that the Court considers the decisions important enough (as a matter of status or persuasive reasoning) that they merit reference or discussion. see Mendelson, Maurice, The International Court of Justice and the Sources of International Law, in Fifty Years of the International Court of Justice: Essays in Honour of Sir Robert Jennings 63, 81–82 (Lowe, Vaughan & Fitzmaurice, Malgosia eds., 1996)Google Scholar.
7 See, e.g., Delimitation of the Maritime Boundary in the Gulf of Maine Area (Can./U.S.), 1984 ICJ Rep. 246, paras. 92, 123, 187 (Oct. 12) (citing Delimitation of the Continental Shelf (UK/Fr.), 18 R.I.A.A. 3 (1977)); Case Concerning Sovereignty over Pedra Branca/Pulau Batu Puteh, Middle Rocks and South Ledge (Malay./Sing.), 2008 ICJ Rep. 12, para. 222 (May 23) (citing Territorial Sovereignty and Scope of the Dispute (Eri./Yemen), 22 R.I.A.A. 209 (1998)); Maritime Delimitation in the Black Sea (Rom. v. Ukr.), 2009 ICJ Rep. 61, paras. 149, 198 (Feb. 3) (citing Second Stage, Maritime Delimitation (Eri./Yemen), 22 R.I.A.A. 335 (1999) and Delimitation of Exclusive Economic Zone and Continental Shelf (Barb. v. Trin. & Tobago), 27 R.I.A.A. 147 (2006)).
8 Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion, 2004 ICJ Rep. 13, paras. 109, 112(July9)(citing Human Rights Committee and Committee on Economic, Social and Cultural Rights); Diallo (Guinea v. Dem. Rep. Congo), 2010 ICJ Rep. 639, paras.66–68,77 (Nov. 30) (citing Human Rights Committee, African Commission on Human and Peoples’ Rights, European Court of Human Rights, and Inter-American Court of Human Rights).
9 Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosn. & Herz. v. Serb. & Mont.), 2007 ICJ Rep. 43 passim (Feb. 26).
10 Application of the Interim Accord of 13 September 1995 (Former Yugo. Rep. Maced. v. Greece), para. 109 (Int’l Ct. Justice Dec. 5, 2011).
11 The Court has not explained its limited citation practice, though it has given hints. See, e.g., Barcelona Traction, Light and Power Co. (Belg. v. Spain), Second Phase, 1970 ICJ Rep. 3, para. 63 (Feb. 5) (“The Parties have also relied on the general arbitral jurisprudence.... However, in most cases the decisions cited rested upon the terms of instruments establishing the jurisdiction of the tribunal...; they cannot therefore give rise to generalization.... “). Only in 2010 did the Court explicitly recognize the importance of consulting and respecting the work of treaty bodies. see Diallo, supra note 8, para. 66.
12 see Jurisdictional Immunities of the State, supra note 1, paras. 72, 73, 76, 78, 90, 96. As discussed below, the Court in this case also extensively considered the decisions of national courts as evidence of customary International law.
13 see Diallo, Compensation, supra note 2, passim.
14 see Questions Relating to the Obligation to Prosecute or Extradite, supra note 3, para. 101.
15 see Territorial and Maritime Dispute, supra note 4, paras. 125, 178, 179, 198, 220, 223, 227, 231, 241, 244.
16 see IFAD Advisory Opinion, supra note 5, para. 39.
17 The Court provided no explanation for this apparent change in direction. Some case-specific explanations were given. In Territorial and Maritime Dispute, para. 114, the Court noted that the “Parties... agree[d] that the applicable law... [was] customary International Law reflected in the case Law of this Court, the International Tribunal for the Law of the Sea... and International arbitral courts and tribunals.” And in Diallo, Compensation, para. 13, the Court referred to the absence of its own case law on compensation. Interestingly, President Tomka, in his speech to the Sixth Committee in November, quoted a 2007 speech of President Higgins, who said that the “so-called ‘fragmentation of International law’ is best avoided by regular dialogue between courts and exchanges of information.” Rosalyn Higgins, ICJ President, Statement at the Meeting of Legal Advisers of the Ministries of Foreign Affairs 3 (Oct. 29, 2007), quoted in Peter Tomka, ICJ President, Speech to the Sixth Committee of the General Assembly 12 (Nov. 2, 2012). Judge Greenwood was more explicit in his justification. He wrote, in a declaration attached to the Diallo compensation judgment:
International Law is not a series of fragmented specialist and self-contained bodies of law, each of which functions in isolation from the others; it is a single, unified system of Law and each International court can, and should, draw on the jurisprudence of other International courts and tribunals, even though it is not bound necessarily to come to the same conclusions.
Diallo, Compensation, Decl. Greenwood, J., para. 8.
18 Jurisdictional Immunities of the State, supra note 1, para. 17. For the Court’s decision declaring Italy’s counterclaim inadmissible, see Cogan, Jacob Katz, The 2010 Judicial Activity of the International Court of Justice, 105 AJIL 477, 486 (2011)Google Scholar. For the Court’s decision allowing Greece to intervene as a nonparty, see Cogan, Jacob Katz, The 2011 Judicial Activity of the International Court of Justice, 106 AJIL 586, 601 (2012 Google Scholar) [hereinafter2011 Judicial Activity of the ICJ].
19 Jurisdictional Immunities of the State, para. 139(4).
20 see 95 Rivista Di Diritto Internazionale 583 (reporting the decision of the Tribunal of Florence), 916 (reporting the decision of the Court of Appeals of Turin), 1196 (reporting the decision of the Court of Cassation) (2012); Ciampi, Annalisa, L’ltalia attua la sentenza della Corte internazionale di giustizia nel caso Germania c. Italia, 96 Rivista Di Diritto Internazionale 146 (2013)Google Scholar; Nesi, Giuseppe, The Quest for a ‘Full’ Execution of the ICJ Judgment in Germany v. Italy, 11 J. Int’l Crim. Just. 185 (2013)CrossRefGoogle Scholar.
21 UN Docs. A/67/PV.29 (Nov. 1, 2012), at 13 (statement of Cesare Maria Ragaglini, permanent representative of Italy to the United Nations), C.N.800.2011.TREATIES-1 (Dec. 15, 2011) (Ireland), C.N.582.2012. TREATIES-I.4 (Sept. 26, 2012) (Lithuania), C.N.594.2012.TREATIES-I.4 (Oct. 4, 2012) (Timor-Leste) & C.N.261.2013.TREATIES-I.4 (Apr. 24, 2013) (Marshall Islands). As of this writing, the secretary-general has yet to communicate that Italy has deposited a declaration.
22 Orakhelashvili, Alexander, Case Report: Jurisdictional Immunities of the State (Germany v. Italy; Greece Intervening), 106 AJIL 609 (2012)CrossRefGoogle Scholar.
23 see Jurisdictional Immunities of the State, paras. 54–55.
24 See id., para. 55.
25 See, e.g., Arrest Warrant of 11 April 2000 (Dem. Rep. Congo v. Belg.), 2002 ICJ Rep. 3, para. 58 (Feb. 14) (“The Court has carefully examined State practice, including national legislation and those few decisions of national higher courts, such as the House of Lords [Pinochet ] or the French Court of Cassation [Qaddafi]. It has been unable to deduce from this practice that there exists under customary International Law any form of exception to the rule according immunity....”); Nottebohm (Liech. v. Guat.), Second Phase, 1955 ICJ Rep. 4, 22 (Apr. 6) (referring to the decisions of national courts but not to a specific court or decision). See generally Nollkaemper, André, The Role of Domestic Courts in the Case Law of the International Court of Justice, 5 Chinese J. Int’l L. 301 (2006)CrossRefGoogle Scholar; Roberts, Anthea, Comparative International Law? The Role of National Courts in Creating and Enforcing International Law, 60 Int’l & Comp. L.Q. 57 (2011)CrossRefGoogle Scholar. Individual judges have more frequently made reference to national court decisions.
26 See, e.g., Jurisdictional Immunities of the State, paras. 64, 68, 72–76, 85– 87, 96, 118, 130; see also Wuerth, Ingrid, International Law in Domestic Courts and the Jurisdictional Immunitiesofthe StateCase , 13 Melb.J.Int’l L. 819 (2012)Google Scholar.
27 see Arrest Warrant of 11 April 2000, para. 54.
28 Diallo, Compensation, supra note 2, paras. 61(1), (2).
29 Id., para. 61(3).
30 Id., para. 61(4).
31 see Andenas, Mads, Case Report: Ahmadou Sadio Diallo (Guinea v. Democratic Republic of the Congo), 107 AJIL 178 (2013)Google Scholar.
32 Diallo, Compensation, para. 10.
33 Id., para 15.
34 Id., paras. 21, 24.
35 See id., para. 33.
36 See id., Decl. Greenwood, J., para. 5.
37 See id., Judgment, paras. 21–23 (aggravating factors according to the Court); id., Decl. Greenwood, J., paras. 9 –11; see also id., Sep. Op. Mampuya, J. ad hoc.
38 Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, Dec. 10, 1984, S. Treaty Doc.No. 100-20 (1988), 1465 UNTS 113. For the Court’s earlier decision on Belgium’s request for the indication of provisional measures, see Cogan, Jacob Katz, The 2009 Judicial Activity of the International Court of Justice, 104 AJIL 605, 613 (2010)Google Scholar.
39 None of the Belgian nationals had Belgian nationality when the alleged crimes were committed.
40 Questions Relating to the Obligation to Prosecute or Extradite, supra note 3, para. 122(1). Because the Court found jurisdiction under the CAT, it decided not to consider whether it also had jurisdiction to entertain the CAT claims under Article 36, paragraph 2, of the Statute. See id., para. 63.
41 see Questions Relating to the Obligation to Prosecute or Extradite, paras. 47–48. The Court was less formalistic in finding the existence of a dispute and the inability of the parties to settle the dispute through negotiation than it had been a year earlier in Application of the International Convention on the Elimination of All Forms of Racial Discrimination (Geor. v. Russ.), Preliminary Objections (Int’l Ct. Justice Apr. 1, 2011). It, too, was lenient concerning Article 30’s requirement that resort can be made to the Court only if “the Parties are unable to agree on the organization of the arbitration” within six months of the request. Questions Relating to the Obligation to Prosecute or Extradite, para. 61.
42 Questions Relating to the Obligation to Prosecute or Extradite, paras. 54–55, 122(2). In contrast to its finding on the CAT, the Court was formalistic when it came to jurisdiction to hear the customary International Law claim, as Judge Abraham noted, dissenting on this point. See id., Sep. Op. Abraham, J., paras. 11–22.
43 Id., Judgment, paras. 68, 122(3).
44 Id., para. 122(4).
45 Id., para. 122(5).
46 Id., para. 122(6).
47 Id., paras. 54–55. From the separate opinions, it is evident that a number of judges (though how many is unclear) would have decided that there is no such customary rule. See, e.g., id., Sep. Op. Abraham, J., paras. 21– 40; id., Diss. Op. Sur, J. ad hoc, para. 21. This issue is currently under discussion at the International Law Commission. see Murphy, Sean D., The Expulsion of Aliens and Other Topics: The Sixty-Fourth Session of the International Law Commission, 107 AJIL 164, 175–76 (2013)Google Scholar.
48 Questions Relating to the Obligation to Prosecute or Extradite, para. 70. The implications of the Court’s granting standing to Belgium on the basis of alleged breaches of obligations erga omnes partes are potentially wide reaching. Writing separately, Judge Skotnikov was critical of the Court’s approach, noting that Belgium clearly brought the case as an injured state. See id., Sep. Op. Skotnikov, J. Judge Skotnikov also explained that allowing a state party to invoke another state’s responsibility on the basis of its erga omnes partes obligations not only went beyond the treaty’s text, the Court’s precedent, and authoritative commentary but also was illogical: the CAT itself allowed a state to enter a reservation to the Court’s jurisdiction and also did not obligate states to accede to the competence of the Committee Against Torture to hear communications of one state party claiming a breach by another. See id. Judge Xue and Judge ad hoc Sur made similar and related points in their dissenting opinions.
49 Belgium’s qualification as such a state would depend on the interpretation of Article 5, paragraph 1(c), which allows for passive personality jurisdiction but does not make clear whether such jurisdiction extends to cases in which the victim acquires the nationality of the state requesting extradition subsequent to the alleged acts of torture.
50 see Questions Relating to the Obligation to Prosecute or Extradite, para. 118.
51 See id., para. 121; see also id., para. 83 (not specifying that Senegal should have sought Belgium’s cooperation in the course of the preliminary inquiry required by Article 6, paragraph 2). The Court’s approach contrasted with that of the Committee Against Torture, which, in a case brought against Senegal, concluded that Senegal must “submit the present case to its competent authorities for the purpose of prosecution or, failing that, since Belgium has madean extradition request, to comply with that request, or, should the case arise, with any other extradition request made by another State.” Guengueng v. Senegal, Communication No. 181/2001, UN Doc. CAT/C/36/D/181/2001, para. 10 (May 17, 2006).
52 Questions Relating to the Obligation to Prosecute or Extradite, para. 83.
53 Id., para. 86.
54 See id., paras. 85–86.
55 Id., para. 90.
56 See id., para. 94.
57 See id.
58 Id., para. 95.
59 Id., para. 114.
60 Id., para. 115.
61 African Union, Decision on the Hissène Habré Case and the African Union, AU Doc. Assembly/AU/Dec.127 (VII) (July 1–2, 2006), quoted in Questions Relating to the Obligation to Prosecute or Extradite, para. 23. The Court’s remedy also was in line with the judgment of the Court of Justice of the Economic Community of West African States in Habré v. Senegal, Habré v. Senegal, Case No. ECW/CCJ/APP/07/08, Judgment (Nov. 18, 2010), at http://www.courtecowas.org/.
62 see Questions Relating to the Obligation to Prosecute or Extradite, para. 33.
63 see Marlise Simons, Senegal Told to Prosecute Ex-president of Chad, N.Y. Times, July 21, 2012, at A 8.
64 see Marlise Simons, Senegal: Trial for Chad’s Ex-ruler, N.Y. Times, Feb. 9, 2013, at A 6.
65 see Adam Nossiter, Senegal Detains Ex-president of Chad, Accused in the Deaths of Opponents, N.Y. Times, July 1, 2013, at A10.
66 American Treaty on Pacific Settlement, Apr.30, 1948,30UNTS 84;see Notification GACIJ No. 79357 from the Minister of Foreign Affairs of Colombia to the Secretary General of the Organization of American States (Nov. 27, 2012), at http://www.oas.org/dil/Notification_Colombia_Pact_Bogota_11-27-12.pdf.
67 see Grossman, Nienke, Case Report: Territorial and Maritime Dispute (Nicaragua v.Colombia), 107 AJIL 396 (2013)CrossRefGoogle Scholar. For the Court’s earlier judgment on preliminary objections, see Mathias, Stephen, The 2007 Judicial Activity of the International Court of Justice, 102 AJIL 588, 602 (2008)CrossRefGoogle Scholar. For the Court’s earlier judgments on the applications of Costa Rica and Honduras to intervene, see 2011 Judicial Activity of the ICJ, supra note 18, at 591.
68 Territorial and Maritime Dispute Between Nicaragua and Honduras in the Caribbean Sea (Nicar. v. Hond.), 2007 ICJ Rep. 659, para. 319 (Oct. 8).
69 Territorial and Maritime Dispute, supra note 4, para. 126.
70 Id.
71 See id., Decl. Donoghue, J., paras. 17–30.
72 Thus, the International Tribunal for the Law of the Sea delimited the continental shelf beyond 200 nautical miles in Delimitation of the Maritime Boundary Between Bangladesh and Myanmar in the Bay of Bengal (Bangladesh/Myanmar), ITLOS Case No. 16 (Mar. 14, 2012), even though the Commission had yet to establish the outer limits.
73 see Territorial and Maritime Dispute, Decl. Donoghue, J., para. 30.
74 The unanimity in Maritime Delimitation in the Black Sea was even stronger, as no judge attached a separate opinion to the Court’s judgment. see Cogan, supra note 38, at 609.
75 IFAD Advisory Opinion, supra note 5, para. 2(II). As a specialized agency of the United Nations, IFAD has been authorized by the General Assembly, pursuant to Article 96 of the Charter, to submit requests for advisory opinions to the Court. see Agreement Between the United Nations and the International Fund for Agricultural Development, Art. XIII(2), UN Doc. GA/RES/32/107, annex (Dec. 15, 1977).
76 In December 2005, Saez García had challenged the decision not to Review her contract. In December 2007, IFAD’s Joint Appeals Board recommended her reinstatement and the award of damages for lost pay, but in April 2008, IFAD’s president decided not to follow the recommendations. Saez García subsequently filed a complaint with ILOAT, which then set aside the president’s decision and ordered the payment of damages.
77 see IFAD Advisory Opinion, para. 100(1), (2).
78 Id., para. 100(3)(a), (c).
79 Id., para. 100(3)(b).
80 The previous opinions were Judgments of the Administrative Tribunal of the International Labour Organisation upon Complaints Made Against the United Nations Educational, Scientific and Cultural Organization, Advisory Opinion, 1956 ICJ Rep. 77 (Oct. 23), Application for Review of Judgement No. 158 of the United Nations Administrative Tribunal, Advisory Opinion, 1973 ICJ Rep. 166(July 12),Application for Review of Judgement No. 273 of the United Nations Administrative Tribunal, Advisory Opinion, 1982 ICJ Rep. 325 (July 20), and Application for Review of Judgement No. 333 of the United Nations Administrative Tribunal, Advisory Opinion, 1987 ICJ Rep. 18 (May 27). On the Court’s Review of administrative tribunal decisions, see generally Kaiyan Homi Kaidobad, The International Court of Justice and Judicial Review (2000), and Gomula, Joanna, The Review of Decision of International Administrative Tribunals by the International Court of Justice, in The Development and Effectiveness of International Administrative Law 349 (Elias, Olufemi ed., 2012)Google Scholar.
81 Statute of the Administrative Tribunal of the International Labour Organization, at http://www.ilo.org/public/english/tribunal/about/statute.htm.
82 Statute of the International Court of Justice, Art. 66.
83 UN Human Rights Comm., General Comment No. 32, Article 14: Right to Equality Before Courts and Tribunals and to a Fair Trial, UN Doc. CCPR/C/GC/32 (Aug. 23, 2007).
84 IFAD Advisory Opinion, para. 44.
85 Id. The process under the ILOAT statute contrasts with the Review procedure that had been in place for the United Nations Administrative Tribunal (UNAT) between 1955 and 1995, in which a staff member could originate the process by which a request for an advisory opinion was made. Indeed, of the three advisory opinions given by the Court on requests for the Review of judgments of the UNAT, two originated from the applications of staff members. see Application for Review of Judgement No. 333 of the United Nations Administrative Tribunal, para. 22; Application for Review of Judgement No. 158 of the United Nations Administrative Tribunal, para. 10. Subsequent to the amendment of the UNAT Statute in 1995, and under the two-tier Review system of the United Nations Dispute Tribunal and the United Nations Appeals Tribunal that began in 2009, there is no procedure for the Court’s oversight.
86 Judge Greenwood, in his declaration, hinted at this when he wrote that he
agreed that the Court should give an Opinion in the present case only because I believed that the Court should not, without warning, withdraw its participation in a procedure for challenging Tribunal decisions which has been in place for many years and has therefore formed part of the assumptions made by all concerned—employees as well as employers—in proceedings before the Tribunal.
IFAD Advisory Opinion, Decl. Greenwood, J., para. 3.
87 See, e.g., IFAD Advisory Opinion, para. 10 (“[T]he registrar informed counsel for Ms Saez García that... it was not possible for [her]... to address directly to the Court communications for its consideration, and that any communication... should be transmitted to the Court through IFAD.”).
88 The Court had to resort to Article 49 to ensure that the relevant documents were submitted by IFAD.
89 IFAD Advisory Opinion, paras. 46, 47.
90 Id., para. 68.
91 UN Convention to Combat Desertification in Those Countries Experiencing Serious Drought and/or Desertification, Particularly in Africa, Oct. 14, 1994, 1954 UNTS 3.
92 IFAD Advisory Opinion, para. 61.
93 See id., paras. 71–82.
94 See id., paras. 83–95.
95 On the election, see 2011 Judicial Activity of the ICJ, supra note 18, at 606.
96 see ICJ Press Release 2012/8 (Feb. 6, 2012).
97 As is the practice, with the seating of the Court’s new members, the judges elected the members of the Chamber of Summary Procedure and three committees. see ICJ Press Release 2012/9 (Feb. 6, 2012).
98 On Judge Al-Khasawneh’s resignation, see 2011 Judicial Activity of the ICJ, supra note 18, at 607.
99 Pursuant to Article 5(1) of the Statute, on January 19 the secretary-general invited national groups of state parties to the Statute to nominate individuals to fill the vacancy. see Election of a Member of the International Court of Justice: Memorandum by the Secretary-General, UN Doc. A/66/766 –S/2012/211 (Apr. 11, 2012). Three nominations were received. see Election of a Member of the International Court of Justice: Note by the Secretary-General, UN Doc. A/66/768–S/2012/213 (Apr. 11, 2012); Submission of Nominations by National Groups: Note by the Secretary-General, UN Doc. A/66/767–S/2012/212(Apr. 11, 2012). The candidacy of one of the nominees—Ghaleb Ghanem (Lebanon)—was withdrawn prior to the election. see Submission of Nominations by National Groups: Note by the Secretary-General, UN Doc. A/66/767/Add.1–S/2012/212/Add.1 (Apr. 20, 2012).
100 ICJ Press Release 2012/16 (Apr. 27, 2012); UN Docs. GA/11230 (Apr. 27, 2012) & SC/10629 (Apr. 27, 2012). Judge Bhandari received 13 of the 15 ballots cast in the Security Council, and 122 of the 180 ballots cast in the General Assembly. see UN Docs. S/PV.6763 (Apr. 27, 2012) & A/66/PV.107 (Apr. 27, 2012).
101 In accordance with Article 15 of the Court’s Statute.
102 The addresses are available at http://www.icj-cij.org/court/index.php?p1=1&p2=3&p3=1. For the debate in the General Assembly on the Court’s Annual Report, see UN GAOR, 67th Sess., 29th plen. mtg., UN Docs. A/67/PV.29 (Nov. 1, 2012), A/67/PV.31 (Nov.6,2012), GA/11305 (Nov. 1, 2012) & GA/11307 (Nov.6, 2012). President Tomka shortened his prepared remarks to the Sixth Committee on account of Hurricane Sandy. see Press Release, Natural Disaster Relief Draft Articles Need Clearer Parameters, Argue Delegates as Legal Committee Continues Review of International Law Commission Report, UN Press Release GA/L/3447 (Nov. 2, 2012). There is no record that he had a private meeting with members of the Security Council, as has been the recent practice. Pres ident Tomka also gave speeches this year during the sixth-fourth session of the International Law Commission and at the September high-level meeting on the rule of Law at UN headquarters.
103 Speech to General Assembly 13.
104 Id.
105 Speech to the Sixth Committee 1.
106 Id. at 2.
107 These were in Questions Relating to the Obligation to Prosecute or Extradite (Belg. v. Sen.) (on jurisdiction, admissibility, and the merits),Territorial and Maritime Dispute (Nicar.v. Colom.) (on admissibility and the merits), Frontier Dispute (Burkina Faso/Niger) (on the merits), and Maritime Dispute (Peru v. Chile) (on the merits). In the hearings in Questions Relating to the Obligation to Prosecute or Extradite, the first conducted under the presidency of Judge Tomka, the Court altered its practice on the posing of questions to the parties. Typically, individual judges who had questions for the parties posed them only at the conclusion of the entire public sitting, and the parties would respond to them in writing subsequently. See, e.g., Verbatim Record, Jurisdictional Immunities of the State, ICJ Doc. CR 2011/21, at 52–54. At this hearing, though, President Tomka had the judges pose questions at the end of the first round of oral argument, therefore allowing the parties to respond to the inquiries during the second round. see Verbatim Record, Questions Relating to the Obligation to Prosecute or Extradite, ICJ Doc. CR 2012/5, at 41–44. The Court continued this practice at successive hearings during the year.see Verbatim Record, Territorial and Maritime Dispute, ICJ Doc. CR 2012/13, at 65–66; Verbatim Record, Frontier Dispute, ICJ Doc. CR 2012/24, at 39; Verbatim Record, Maritime Dispute, ICJ Doc. CR 2012/32, at 62–63. of course, the judges, as necessary, still asked questions at the conclusion of the sitting. See, e.g., Verbatim Record, Frontier Dispute, ICJ Doc. CR 2012/26, at 59–60.
108 On September 25, in accordance with Article 38(5) of the Statute, Equatorial Guinea filed an “Application Instituting Proceedings Including a Request for Provisional Measures,”in which it sought to annul the French criminal investigation and proceedings, including an arrest warrant, brought against the president and vice-president of Equatorial Guinea. see ICJ Press Release 2012/26 (Sept. 26, 2012). As of the end of the year, France had yet to “consent[] to the Court’s jurisdiction for the purposes of the case.”
109 On November 20, New Zealand submitted its request invoking Article 63 of the Statute to intervene in Whaling in the Antarctic (Austl. v. Japan).
110 Allofthe remaining cases were active, save for two—Gabčkovo-Nagymaros Project (Hungary/Slovakia) and Armed Activities on the Territory of the Congo (Dem. Rep. Congo v. Uganda)—which “technically remain[ed] pending” following decisions on the merits and pending negotiations between the parties concerning the implementation of the Court’s judgments. Report of the International Court of Justice, Aug. 1, 2011–July 31, 2012, UN GAOR, 67th Sess., Supp. No. 4, at 2 n.1, 24 & 28–29, UN Doc. A/67/4 (2012).
