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The 2017 Judicial Activity of the International Court of Justice

  • Christine Gray (a1)
Extract

In 2017 the International Court of Justice (ICJ or Court) made only procedural decisions, one on preliminary objections, one on counterclaims, and two on provisional measures. Three other new applications were made to the Court, all linked to earlier cases: Malaysia applied for the revision, and interpretation, of the judgment in the Pedra Branca/Pulau Batu Puteh case; and Costa Rica brought a case against Nicaragua concerning their land boundary in the area of Los Portillos, the latest in a long line of cases between the two states. Judges Ronny Abraham (France), Dalveer Bhandari (India), Antonio Cançado Trindade (Brazil), and Abdulqawi Yusuf (Somalia) were reelected to the Court, and one new judge, Nawaf Salam (Lebanon) was elected. The UK failed to secure the reelection of its judge, Christopher Greenwood. For the first time since the establishment of the ICJ, the UK will have no judge on the Court. This failure may be taken as an indication of its declining influence in international relations, arguably attributable in part to Brexit, and it marks the end of the convention that each permanent member of the Security Council will have a judge of its nationality on the Court. Nor was the UK able to prevent a request by the UN General Assembly (passed by ninety-four in favor to fifteen against, with sixty-five abstentions) for an Advisory Opinion on the legal consequences of the separation of the Chagos Archipelago from Mauritius in 1965—a sensitive issue for the UK, and one that has already been the subject of much litigation.

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1 UN General Assembly Press Release, General Assembly Adopts Resolution Seeking International Court's Advisory Opinion on Pre-independence Separation of Chagos Archipelago from Mauritius (June 22, 2017), at https://www.un.org/press/en/2017/ga11924.doc.htm.

2 Maritime Delimitation in the Indian Ocean (Som. v. Kenya), Preliminary Objections, Judgment (Int'l Ct. Just. Feb. 2, 2017) [hereinafter Somalia v. Kenya Judgment]. All the materials of the Court cited in this report are available on its website, http://www.icj-cij.org.

3 United Nations Convention on the Law of the Sea, opened for signature Dec. 10, 1982, 1833 UNTS 397 (entered into force Nov. 16, 1994) [hereinafter UNCLOS].

4 Somalia v. Kenya Judgment, supra note 2, para. 31.

5 Id., Diss. Op. Bennouna, J., at 1. He found over forty such reservations.

6 It held by a vote of 13–3 that it had jurisdiction and that the application was admissible.

7 Established under Annex II of UNCLOS.

8 UNCLOS, supra note 3, Art. 76(8).

9 Id. Art. 76(10). UNCLOS Annex II, Article 9 also provides that: “The actions of the Commission shall not prejudice matters relating to delimitation of boundaries between States with opposite or adjacent coasts.”

10 UNCLOS, supra note 3, Ann. II, Art. 4. See Somalia v. Kenya Judgment, supra note 2, para. 16.

11 Maritime Delimitation in the Indian Ocean (Som. v. Kenya), Written Statement of Somalia Concerning the Preliminary Objections of Kenya, para. 1.11 (Int'l Ct. Just. Feb. 5, 2016) [hereinafter Somalia v. Kenya Somalia Written Statement].

12 Commission on the Limits of the Continental Shelf (CLCS) Rules of Procedure, Annex 1, Article 5, is set out in the Somalia v. Kenya Judgment at paragraph 68.

13 Somalia v. Kenya Judgment, supra note 2, para. 101. See also the admonition by Judge Yusuf that although it was reasonable to rely on Norway's expertise for the provision of technical material to the CLCS, it was not justifiable for states to turn to it in the negotiation and drafting of a bilateral agreement on a purely legal and policy matter. Id., Decl., Yusuf, J.

14 Somalia v. Kenya Judgment, supra note 2, para. 37. The parties used different numbering in their references to the Memorandum of Understanding (MOU). This report will adopt the enumeration adopted by the Court.

15 Id., paras. 18–19.

16 After its Application to the Court, Somalia consented to CLCS consideration of Kenya's Submission. Id., para. 26.

17 Maritime Delimitation in the Indian Ocean (Som. v. Kenya), Verbatim Record, ICJ Doc CR 2016/11, at 15 (Int'l Ct. Just. Sept. 20, 2016) (Al-Sharmani, para. 18) [hereinafter Somalia v. Kenya Sept. 20 Verbatim Record]. On the UK's alteration of its Optional Clause declaration after the Marshall Islands case, 2016 ICJ Rep. 833 (Oct. 5), see Gray, Christine, The 2016 Judicial Activity of the ICJ, 111 AJIL 415, 431 (2017); for Japan's alteration after the Whaling case, see http://www.icj-cij.org/en/declarations/jp.

18 Kenya Declaration Under Article 298 (Jan. 24, 2017), at https://treaties.un.org/Pages/Declarations.aspx?index=Kenya&lang=_en&chapter=21&treaty=462.

19 Somalia v. Kenya Judgment, supra note 2, para. 39; Somalia v. Kenya Somalia Written Statement, supra note 11, para. 2.78.

20 Maritime Delimitation in the Indian Ocean (Som. v. Kenya), Kenya Preliminary Objections, paras. 55–57, 68–70, 77–80, 96 (Int'l Ct. Just. Oct. 7, 2015) [hereinafter Somalia v. Kenya Kenya Preliminary Objections]; Maritime Delimitation in the Indian Ocean (Som. v. Kenya), Verbatim Record, ICJ Doc. CR 2016/10, at 20–21, 30–33 (Int'l Ct. Just. Sept. 19, 2016) (Akhavan, paras. 9–13; Khan, paras. 9–17) [hereinafter Somalia v. Kenya Sept. 19 Verbatim Record].

21 Somalia v. Kenya Judgment, supra note 2, para. 41.

22 Id., paras. 39–40.

23 Id., paras. 42, 43–50.

24 Id., para. 63. It considered the interpretation of the MOU in paragraphs 50–106.

25 Somalia v. Kenya Kenya Preliminary Objections, supra note 20, para. 53.

26 Somalia v. Kenya Sept. 19 Verbatim Record, supra note 20, at 21–23 (Akhavan, paras. 14–22), 34–43 (Forteau, paras. 3–23).

27 Somalia v. Kenya Judgment, supra note 2, para. 54.

28 Id., paras. 58–62.

29 Id., para. 65.

30 Nor was the Court persuaded by Kenya's argument that the MOU's use of both singular and plural forms of “boundary” and “area” showed that the MOU covered all maritime areas and not just the continental shelf. Kenya argued that the establishment of the entire maritime boundary was subject to the condition precedent of CLCS review and recommendations, and that the full maritime boundary would then be established by negotiations. Id., paras. 83–86. Judge ad hoc Guillaume accepted that there was significance in use of plural. Id., Diss. Op., Guillaume, J. ad hoc, paras. 17–18.

31 The three dissenting judges put more stress on “after.” Also, Judges Gaja and Crawford argued that paragraph six did provide for a two-step procedure but that this had been overridden by the parties’ behavior. Id., Joint Decl., Gaja and Crawford, JJ.

32 Somalia v. Kenya Judgment, supra note 2, paras. 79, 92–96. The Court's position on the interpretation of the MOU is usefully summarized in paragraphs 97–98.

33 Id., para. 89.

34 Id., para 91.

35 Somalia v. Kenya Somalia Written Statement, supra note 11, paras. 1.24–.29, 1.8.

36 Somalia v. Kenya Judgment, supra note 2, para. 92.

37 Id., para. 95. The Court did not revisit the contentious issue as to whether it was possible for the ICJ to determine a maritime boundary before the CLCS had reviewed and recommended the outer limit of the shelf. It implicitly relied on its earlier decision in Question of the Delimitation of the Continental Shelf Between Nicaragua and Colombia Beyond 200 nm from the Nicaraguan Coast (Nicar. v. Colom.) Preliminary Objections, Judgment, 2016 ICJ Rep. 100, para. 110 (Mar. 17) [hereinafter Nicar. v. Colom. Delimitation Judgment] on this point. Id., para. 97.

38 Somalia v. Kenya Kenya Preliminary Objections, supra note 20, para. 147.

39 Somalia v. Kenya Sept. 19 Verbatim Record, supra note 20, at 54–62 (Boyle).

40 Somalia v. Kenya Judgment, supra note 2, paras. 122–32. See also Bankes, Nigel, Precluding the Applicability of Section 2 of Part XV of the Law of the Sea Convention, 48 Ocean Dev. & Int'l L. 239 (2017).

41 Somalia v. Kenya Judgment, supra note 2, para. 110. The requirements of Article 282 were discussed in the South China Sea case. In the Matter of the South China Sea Arbitration (Phil. v. China), PCA Case No. 2013-19, Jurisdiction and Admissibility (Perm. Ct. Arb. Oct. 29, 2015).

42 Somalia v. Kenya Judgment, supra note 2, para. 129. See also Somalia v. Kenya Somalia's Written Statement, supra note 11, paras. 3.79–.86.

43 Somalia v. Kenya Judgment, supra note 2, paras. 137–38.

44 Id., paras. 139–43.

45 Somalia v. Kenya Sept. 20 Verbatim Record, supra note 17, at 14 (Al-Sharmani, paras. 13–14).

46 Alleged Violations of Sovereign Rights and Maritime Spaces in the Caribbean Sea (Nicar. v. Colom.), Counter-Claims, Order (Int'l Ct. Just. Nov. 15, 2017) [hereinafter Nicar. v. Colum. Sovereign Rights Counter-Claims Order].

47 Territorial and Maritime Dispute (Nicar. v. Colom.), Judgment, 2012 ICJ Rep. 624 (Nov. 19).

48 Nicar. v. Colom. Delimitation Judgment, supra note 37.

49 Alleged Violations of Sovereign Rights and Maritime Spaces in the Caribbean Sea (Nicar. v. Colom.) Preliminary Objections, Judgment, 2016 ICJ Rep. 3 (Mar. 17) [hereinafter Nicar. v. Colum. Sovereign Rights Judgment].

50 See Murphy, Sean, Counter-Claims, in The Statute of the International Court of Justice: A Commentary 1000, 1003 (Zimmerman, Andreas, Tomuschat, Christian, Oellers-Frahm, Karin & Tams, Christian J. eds., 2d ed. 2012); Malcolm N. Shaw, Rosenne's Law and Practice of the International Court (1920–2015), Vol. III, at 1269 (5th ed. 2016).

51 Nicar. v. Colum. Sovereign Rights Counter-Claims Order, supra note 46, paras. 22–54. The Court addressed these two questions in reverse order, but the choice of order did not make any obvious difference to its conclusions. Id., paras. 20–21. The Court's approach in this regard was criticized by Judges Tomka, Gaja, Sebutinde, and Gevorgian and Judge ad hoc Daudet in their Joint Opinion. Id., Joint Op., paras. 10–11 [hereinafter Nicar. v. Colum. Sovereign Rights Joint Opinion].

52 Nicar. v. Colum. Sovereign Rights Counter-Claims Order, supra note 46, para. 23.

53 Id., para. 24.

54 Id., para. 25. The meaning of “the same legal aim” was clarified in the Bosnia Genocide case: each party was seeking to establish the legal responsibility of the other for violating the Genocide Convention. Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosn. & Herz. v. Yugo.), Counter-Claims Order, 1997 ICJ Rep. 243, para. 27 (Dec. 17).

55 Nicar. v. Colum. Sovereign Rights Counter-Claims Order, supra note 46, para. 36.

56 Id., para. 37.

57 Id., para. 38.

58 Id.

59 Judge Cançado Trindade devoted most of his individual opinion to a discussion of the fishing rights of the affected local populations. Id., Decl., Cançado Trindade, J., paras. 9–23. He concluded: “Sociability emanated from the recta ratio (in the foundation of jus gentium), which marked presence already in the thinking of the “founding fathers” of the law of nations (droit des gens), and ever since and to date, keeps on echoing in human conscience.” Id. He had earlier given a sixty-nine page discussion of counterclaims in his Dissenting Opinion in Jurisdictional Immunities of the State (Ger. v. It.; Greece intervening), Judgment, 2012 ICJ Rep. 99 (Feb. 3).

60 Nicar. v. Colum. Sovereign Rights Counter-Claims Order, supra note 46, paras. 44–45.

61 Id., para. 53.

62 Id., Sep. Op., Greenwood, J. Nicar. v. Colum. Sovereign Rights Joint Opinion, supra note 51, also disagreed with the Court on this point.

63 Id., Sep. Op., Greenwood, J., para. 13. In contrast, Judge Donoghue dealt with this as a question of jurisdiction rather than of direct connection. She said that Colombia's “fourth counter-claim [did] not fit within the subject-matter of the dispute presented in Nicaragua's Application.” Nicar. v. Colum. Sovereign Rights Counter-Claims Order, supra note 46, Sep. Op., Donoghue, J., para. 32.

64 Nicar. v. Colum. Sovereign Rights Counter-Claims Order, supra note 46, paras. 56–77.

65 Id., paras. 60–63.

66 Id., paras. 57–59.

67 Id., para. 67. Nottebohm Case (Liech. v. Guat.), Preliminary Objection, Judgment, 1953 ICJ Rep. 111, 123 (Nov. 18).

68 Nicar. v. Colum. Sovereign Rights Counter-Claims Order, supra note 46, para. 68. Nicar. v. Colum. Sovereign Rights Joint Opinion, supra note 51, paras. 18–21 (rejected the relevance of Nottebohm as it did not deal with counterclaims).

69 Nicar. v. Colum. Sovereign Rights Counter-Claims Order, supra note 46, paras. 69–73. Cf. Nicar. v. Colum. Sovereign Rights Joint Opinion, supra note 51, para. 4. The Joint Opinion stressed the Court's discretion as to whether it should entertain counterclaims. In an exceptional situation, when dealing with a counterclaim that would not serve the sound and effective administration of justice, the Court may refuse to entertain a counterclaim. Moreover, Colombia's counterclaims did not concern the same dispute as that brought before the Court by Nicaragua. They widened the dispute and the Court therefore lacked jurisdiction. The final paragraph of the Joint Opinion indicates that the five judges were swayed by the consideration that Colombia had denounced the Pact of Bogotá and then three years later had attempted to bring claims against Nicaragua by way of counterclaims.

70 Judge Greenwood (with regard to the third counterclaim) accepted the underlying principle but said that where the direct connection between the subject matter of the claim and counterclaim was as close as in this case, the analysis of the jurisdictional requirements in the principal claim may make it unnecessary to engage in a separate examination of the same requirements with regard to the counterclaim. Nicar. v. Colum. Sovereign Rights Counter-Claims Order, supra note 46, Sep. Op., Greenwood, J., paras. 10–12. Judge Yusuf took the same position with regard to both the third and the fourth counterclaims. Nicar. v. Colum. Sovereign Rights Counter-Claims Order, supra note 46, Decl., Yusuf, J., paras 9–11.

71 Nicar. v. Colum. Sovereign Rights Counter-Claims Order, supra note 46, para. 72. In the Marshall Islands cases, the Court had used this test to deny the existence of a dispute. See Gray, supra note 17, at 428. But in the current case, the application of the test led the Court to assert the existence of a dispute and therefore to give jurisdiction.

72 Nicar. v. Colum. Sovereign Rights Counter-Claims Order, supra note 46, para. 73.

73 Id., paras. 74–76.

74 Id., para. 74 (quoting Nicar. v. Colum. Sovereign Rights Judgment, supra note 49, para. 95).

75 Application of the International Convention for the Suppression of the Financing of Terrorism and of the International Convention on the Elimination of All Forms of Racial Discrimination (Ukr. v. Russ.), Provisional Measures, Order (Int'l Ct. Just. Apr. 19, 2017) [hereinafter Ukraine v. Russia Order].

76 International Convention for the Suppression of the Financing of Terrorism, opened for signature Dec. 9, 1999, 2178 UNTS 197 (entered into force Apr. 10, 2002) [hereinafter ICSFT].

77 International Convention on the Elimination of All Forms of Racial Discrimination, opened for signature Mar. 7, 1966, 660 UNTS 195 (entered into force Jan. 4, 1969).

78 Application of the International Convention for the Suppression of the Financing of Terrorism and of the International Convention on the Elimination of All Forms of Racial Discrimination (Ukr. v. Russ.), Verbatim Record, ICJ Doc. CR 2017/2, at 12 (Mar. 7, 2017) (Kolodkin, paras. 2–3). Ukraine has also brought a series of cases against Russia arising out of events in Crimea and eastern Ukraine in other jurisdictions, including the European Court of Human Rights and the Permanent Court of Arbitration.

79 Ukraine v. Russia Order, supra note 75, para. 104.

80 For an account of the expulsion and return of the Crimean Tatars, and of the role of the Meijlis, see Ukraine v. Russia Order, supra note 75, Decl., Crawford, J.

81 Application of the International Convention on the Elimination of All Forms of Racial Discrimination (Geor. v. Russ.), Provisional Measures, Order, 2008 ICJ Rep. 353 (Oct. 15) [hereinafter Georgia v. Russia Provisional Measures].

82 The Court considered this question at great length in Application of the International Convention on the Elimination of All Forms of Racial Discrimination (Geor. v. Russ.), Preliminary Objections, Judgment, 2011 ICJ Rep. 70, paras. 23–114 (Apr. 1) [hereinafter Georgia v. Russia Preliminary Objections].

83 Id., paras. 115–84.

84 For example, Application of the International Convention for the Suppression of the Financing of Terrorism and of the International Convention on the Elimination of All Forms of Racial Discrimination (Ukr. v. Russ.), Verbatim Record, ICJ Doc. CR 2017/1, at 35 (Mar. 6, 2017) (Cheek, para. 5) [hereinafter Ukraine v. Russia Mar. 6 Verbatim Record].

85 Id., at 21 (Rogachev, para. 21).

86 Ukraine v. Russia Order, supra note 75, para. 25.

87 Ukraine v. Russia Mar. 6 Verbatim Record, supra note 84, at 39 (Cheek, paras. 18–19).

88 Ukraine v. Russia Order, supra note 75, para. 27; Ukraine v. Russia, Verbatim Record, ICJ Doc. CR 2017/2, at 36 (Mar. 7, 2017) (Zimmerman, paras. 1, 6–33). Judge Bhandari discussed this issue in his Separate Opinion, but not entirely clearly.

89 Ukraine v. Russia Order, supra note 75, paras. 22–31.

90 Id., paras. 40–61.

91 Ukraine invoked Judge Oda's individual opinions in a series of ICJ cases as support for their claim that an ad hoc chamber of the Court is essentially an arbitral tribunal. Application of the International Convention for the Suppression of the Financing of Terrorism and of the International Convention on the Elimination of All Forms of Racial Discrimination (Ukr. v. Russ.), Verbatim Record, ICJ Doc. CR 2017/3, at 32 (Mar. 8, 2017) (Zionts, para. 23) [hereinafter Ukraine v. Russia Mar. 8 Verbatim Record].

92 Ukraine v. Russia Order, supra note 75, paras. 52–54.

93 Id., paras. 63–77.

94 Question Relating to the Obligation to Prosecute or Extradite (Belg. v. Sen.), 2012 ICJ Rep. 422, paras. 57–60 (July 20). Judge Owada (Japan) in his Separate Opinion argued that this requirement only made explicit what had been implicit in the jurisprudence of the ICJ and PCIJ.

95 See Cameron Miles, Provisional Measures Before International Courts and Tribunals 193–94 (2017).

96 Ukraine v. Russia Order, supra note 75, Sep. Op., Owada, J., paras. 10–20.

97 Id., Sep. Op., Pocar, J. ad hoc, paras. 5–9.

98 Id., Sep. Op., Bhandari, J., para. 16.

99 Case Concerning Pulp Mills on the River Uruguay (Arg. v. Uru.) Provisional Measures, 2006 ICJ Rep. 113, Sep. Op., Abraham, J., para. 10 (July 13).

100 Ukraine v. Russia Order, supra note 75, Sep. Op., Cançado Trindade, J., para 36. He included not only five paragraphs from Tolstoy on human vulnerability, but also a separate section on non-compliance with provisional measures.

101 Ukraine v. Russia Order, supra note 75, para. 66. For the text of Article 18, see id. para. 72; for Article 2, see id., para. 73.

102 Id., paras. 74–76. Article 2 provides that “Any person commits an offence within the meaning of this Convention if that person by any means … provides or collects funds with the intention that they should be used or in the knowledge that they are to be used, in full or in part, in order to carry out” a series of terrorist offences. ICSFT, supra note 76.

103 Ukraine v. Russia Order, supra note 75, para. 75. Judge Owada in his Separate Opinion, paras. 22–24, disagreed on this point. He said that an examination of the question whether the requirements of intent, knowledge, and purpose had been met could require a thorough analysis of the evidence that would go beyond what was required at this stage of the proceedings. Judge ad hoc Pocar agreed in his Separate Opinion. In contrast, Judge Bhandari said that Ukraine had put forward sufficient evidence, and that knowledge could be inferred from a pattern of behavior, Sep. Op., Bhandari, J., paras. 21–23, 33–37.

104 For example, Legality of Use of Force (Yugo. v. Belg.), Provisional Measures, Order, 1999 ICJ Rep. 124 (June 2).

105 Id., paras. 36–41.

106 Ukraine v. Russia Order, supra note 75, paras. 74–75.

107 Ukraine v. Russia Mar. 6 Verbatim Record, supra note 84, at 47 (Cheek, paras. 49–50); Ukraine v. Russia Mar. 8 Verbatim Record, supra note 91, at 43 (Cheek, para. 28).

108 Judge Owada voted in favor of the Court's decision but disagreed on the reasoning. In his Separate Opinion, he argued that the rights claimed by Ukraine under the ICSFT were plausible, but that there was no real and imminent risk of irreparable prejudice to those rights, because the rights in question were rights of Ukraine to require Russia to cooperate in the prevention of the financing of terrorism. Judge ad hoc Pocar in his Separate Opinion also said that the rights were plausible.

109 Ukraine v. Russia Order, supra note 75, paras. 37–38.

110 These articles are set out in full at id., para. 80.

111 Id., para. 55.

112 Id., para. 59.

113 Id.

114 Id., para. 56.

115 Id., para. 60.

116 Georgia v. Russia Preliminary Objections, supra note 82, paras. 119, 133, 183.

117 Ukraine v. Russia Order, supra note 75, paras. 78–83.

118 Id., paras. 84–86.

119 Id., para. 94. Russia chose the term “consultations” advisedly in order to avoid acknowledging that Ukraine had engaged in negotiations on CERD.

120 Ukraine v. Russia Order, supra note 75, paras. 87–98.

121 At the Provisional Measures stage, the three judges were among the minority of seven who said that there was no dispute. Georgia v. Russia Provisional Measures, supra note 81. At the Preliminary Objections stage, they dissented again on this point, with regard to the rejection of Russia's first objection. Georgia v. Russia Preliminary Objections, supra note 82.

122 Georgia v. Russia Provisional Measures, supra note 81.

123 Thirlway, Hugh, The Law and Procedure of the International Court of Justice 1960–1989, 72 Brit. Y.B. Int'l L. 37, 108 (2001); Miles, supra note 95, 209.

124 Jadhav Case (India v. Pak.), Provisional Measures, Order (Int'l Ct. Just. May 18, 2017) [hereinafter India v. Pakistan Order]. Judge Bhandari discussed the three earlier death penalty cases, Breard, LaGrand, and Avena. Id., Decl. Bhandari, J., paras. 27–30.

125 Pakistan argued in its oral pleadings that it had not imposed a condition on consular access, but rather it was invoking India's obligation to prevent and punish terrorism. Jadhav Case (India v. Pak.), Verbatim Record, ICJ Doc. CR 2017/6, at 14 (May 15, 2017) (Faisal) [hereinafter India v. Pakistan May 15 Verbatim Record].

126 Judge Bhandari (India) set out a longer account in his Declaration. India v. Pakistan Order, supra note 124, Decl. Bhandari, J., paras. 2–9.

127 India relied only on the Optional Protocol to the Vienna Convention on Consular Relations (VCCR) as the basis for the Court's jurisdiction; it did not invoke the Optional Clause declarations made by the parties under Article 36(2) of the Court's Statute. It took the well-established position that different modes of consent to the Court's jurisdiction were autonomous and limits on one did not affect the other. Jadhav Case (India v. Pak.), Verbatim Record, ICJ Doc., CR/2017/5, at 30 (May 15, 2017) (Mittal, paras. 53–63). Pakistan nevertheless challenged the Court's jurisdiction under the Optional Clause on the basis of two of India's reservations and one of its own reservations. Pakistan's arguments on this point raised interesting questions, but were totally irrelevant to the case, and the Court dismissed them summarily in its Order. India v. Pakistan Order, supra note 124, para. 26.

128 India v. Pakistan Order, supra note 124, paras. 24–25.

129 Id., para. 29.

130 Id., para. 30.

131 Id., para. 32.

132 Id., para. 33.

133 Id., paras. 42–45.

134 Id., paras. 46–48.

135 India v. Pakistan May 15 Verbatim Record, supra note 125, at 10 (Faisal, para. 17).

136 India v. Pakistan Order, supra note 124, paras. 49–55.

137 Avena and Other Mexican Nationals (Mex. v. U.S.), Provisional Measures, Order, 2003 ICJ Rep. 77, para. 59 (Feb. 5).

138 India v. Pakistan Order, supra note 124, Decl., Bhandari, J., paras. 29–34.

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