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MEMORIAL of the REPUBLIC of RWANDA 1 1 1 ,L 21 April 2000

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MEMORIAL of the REPUBLIC of RWANDA 1 1 1 ,L 21 April 2000 1 1 1 1 International Court of Justice 1 1 :1 CASE CONCERNING ARM:ED ACTIVITIES 1 ON THE .TERRITORY OF THE CONGO 1 (DEMOCRATie REPUBLIC OF THE CONGO 1 v. THE REPUBLIC OF RWANDA) 1 il MEMORIAL OF THE REPUBLIC OF RWANDA 1 1 1 ,l 21 April 2000 1 1 1 :1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1~ 1 1 1 ~-- 1 1 1 1 CONTENTS 1 page 1 1 The Proceedings against Rn'anda n 1 The Court Jacks Jurisdiction over the Application 5 A The Princip/es ofJurisdiction 5 1 B The Grounds for Jurisdiction advanced ByCongo 6 1 c The Absence ofJurisdiction under the Montreal Convention 8 1 1 The requirement of a dispute concerning the interpretation or application of the 1 Convention 9 2 The dispute must be one which cannat 1 be settled by negotiation 16 1 3 The arbitration requirement 18 1 D The lnadmissibility ofthe Application 20 1 Ill Concluding Submissions 25 List of Alllnexes 27 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 PARTI THE PROCEEDINGS AGAINST RWANDA 1 1.1 On 23 June 1999 the Democratie Republic ofthe Congo (hereinafter referred to as 1 "Congo") filed an Application instituting proceedings against the Republic of Rwanda ("Rwanda"). According to the Application, the Govenunent of Congo 1 instituted the proceedings "on accowlt of acts of armed aggression perpetrated by 1· Rwanda on the territory of the Democratie Republic of the Congo, in flagrant violation of the United Nations Charter and of the Charter of the Organization of 1 Afhcan Unity." 1 1.2 The Application th en accuses Rwanda of violations of the law relating to the use 1 -· of force and non-intervention, the law of arrned conflict and the law of human rights. Congo filed Applications in virtually identical terms against Uganda and 1 Burundi on the same day. 1 1.3 At the meeting held between the President of the Court and the representatives of the Parties on 19 October 1999, the Agent of Rwanda indicated that the 1 Governrnent of Rwanda did not accept that the Court had jurisdiction in respect of Congo's Application. Accordingly, by an Order dated 21 October 1999, the Court 1 decided that the written proceedings should first be addressed to the questions of 1 the jurisdiction of the Court to entertain the Application and toits admissibility. lt fixed 21 April 2000 as the time-Jimit for Rwanda to file a Memorial dealing '1 exclusively with those questions. 1.4 In accordance with that Order, the present Memorial d~als exclusively with 1 questions of jurisdiction and admissibility. Except where they bear upon these ~1 questions, Rwanda has not entered into any discussion of the factua1 allegations 1 Application, p. 4 (French text), p. 5 (Eng!ish tex!) (emphasis in the original). 1 1 1 1 1 set forth in the Application. Rwanda merely places on record that it does not accept the truth of the allegations made by Congo. 1 1.5 Rwanda submits that the issues before the Court at the present stage~ of the, 1 proceedings are very simple and can be dealt with quite shortly. Rwanda contends that the Court Jacks jurisdiction under any of the grounds of jurisdiction advaneed 1 in Part II of the Application. 1 1.6 In the case of two of these grounds of jurisdiction - the invitation by Congo to Rwanda to accept the jurisdiction for the purpose of the case and the previsions of 1 Article 30(1) of the United Nations Convention against Terture and OtheF Cruel,. Inhuman OF Degrading Treatment or Punishment, 1984 f'tfue 1i'0Füme: 1 2 Convention") - the Jack of jurisdiction is manifest. Rwanda does not accept the jurisdiction of the Court for the purposes of the present case. The TartUFe. 1 Convention is not a treaty in force between Congo and Rwanda. 1 1.7 The third ground on which Congo seeks to rely is the provisions of Article 14(1) of the Montreal Convention for the Suppression of Unlawful Acts against Civil 1 Aviation, 1971 ("the Montreal Convention").3 The Montreal Convention is a treaty in force between Congo and Rwanda. Article 14(1 ), however, confers 1 jurisdiction only in respect of disputes concerning the interpretation or application of the Montreal Convention and only if certain essential procedural steps have 1 first been taken. This Memorial will demonstrate that the dispute characterized by Congo as the subject ofthe proceedings is not one conceming the interpretation or 1 application of the Montreal Convention. Moreover, the individual factual allegations made by Congo, for the most part, have nothing whatever to do with 1 the Convention~ which cannat, therefore, fumish a basis for jurisdiction in respect of them. The Memorial will also show that, with respect to any specifie allegation ·1 1 Annex 2. Annex I. 1 2 1 1 1 1 1 that may be held to fall withih the scope of the Convention (if any), Congo bas not 1 satisfied the preconditions for jurisdiction laid dawn in Article 14( 1). 1 1.8 Altematively, Rwanda contends that, even if the Montreal Convention confers · jurisdiction in respect of any part of the Application, the Application is 1 inadmissible. 1 1 1 1 1 1 1 1 1 1 1 1 1 1 3 1 !1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 4 1 1 1 1 1 1 PART Il THE COURT LACKS JURISDICTION 1 OVER THE APPLICATION 1 A. The Princip/es ofJurisdiction 1 2.1 It is weil established in the jurisprudence of the Court that "one of the fundamental principles of its Statute is that it cannot decide a dispute berween 1 States without the consent of those States to its jurisdiction" (Case concerning East Timor). 4 That principle was recently applied by the Court in its Orders on 1 the request for Provisional Measures in the Cases concerning Legality of [/se of 5 1 Force. 2.2 Moreover, when that consent bas been g1ven, the jurisdiction of the Court is 1 limited to matters falling within the scope of the provision in which that consent is expressed. It is for that reason that when the Court has found that it has 1 jurisdiction only on the basis of a treaty provision, such as Article 14(1) of the Montreal Convention or Article IX of the Genocide Convention, it bas held that it 1 lac:ks jurisdiction over any allegation contained in the Application which tàlls 6 1 outside the scope ofthat treaty. As Judge ad hoc Lauterpacht put it, The Court can only act in a case if the parties, both applicant and respondent, have conferred jurisdiction upon it by sorne voluntary act of 1 consent. ... Whatever form the consent may take, the range of matters that 1 4 Case concerning East Timor (Portugal v. Australia) ICJ Reports, 1995, p. 90, at para. 26. 5 1 1 See, e.g., Yugoslavia v. Spain, Order of 2 June 1999, para. 19. 6 1 See, e.g., Case concerning Questions of Interpretation and Application of the 197 I Monrreal Cr[mvention arising from the Aerial Incident al Lockerbie (Libyan Arab Jamahiriya v. United Kingdom) 1 (~reliminmy Objections), lCJ Reports, 1998, p. 8 at para. 36 and Joint Declaration of Judges Guillaume and Fleischhauer at p.SO (Article 14(1) of the Montreal Convention), and Case concerning the Application 1 off the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Federal Republic of: Yugosfm,ia) (Further Provisional Measure~), ICJ Reports, 1993, p. 325, at para. 26 (Article IX of the 1 G~nocide Convention). 1 5 1 1 1 1 the Court can then deal with is limited to the matters covered by that consent.7 1 In accordance with that principle, the Court has held (most recently in the Oil Platforms 8 and Lockerbie 9 cases) that when an applicant asserts that jurisdiction 1 is based upon a dispute settlement provision in a treaty dealing with a specifie subject-matter, the Court must examine the application and the treaty provision in 1 question at the stage of prelirninary objections, in order to determine whether the dispute, as pleaded by the applicant, falls within the scope of the jurisdictional­ 1 provision ofthe treaty. 1 B. The Grounds ofJurisdiction advanced by Congo 1 2.3 In Part II of its Application, Congo advances three grounds for the jurisdiction of 1- the Court. First, Congo refers to its declaration accepting the compulsory jurisdiction of the Court under Article 36(2) of the Statute. While acknowledging 1 that Rwanda has not made such a declaration, Congo invites Rwanda, in accordance with Article 38(5) of the Rules of Court, to accept the jurisdiction of 1 the Court for the purpose of the present case. Rwanda has already made clear that it does not in tend to accept this invitation. 10 Rwanda repeats now that it does not 1 accept the jurisdiction of the Court on this basis and that nothing said or done by Rwanda is to be taken as implying such acceptance. It follows that, as Article 1 1 Case concerning the Application of the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Federal Republic ofYugoslavia) (Further Provisionai Measures), lCJ Reports, 1993, p.
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