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Djibouti v France

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Antea Bonito

on 16 November 2015

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Transcript of Djibouti v France

Subjects
Jurisdiction
Dissenting Opinions

Context
Rulings
Djibouti v. France (January 4th 2006)
Context
Djibouti: country located in the Horn of Africa; late 19th century -> French Colony (Colony of French Somaliland, since 1862), but obtained its independence after 1977 with a popular referendum and immediately joined NATO and the UN
Who is Bernard Borrel? French Magistrate in Djibouti who died under mysterious circumstances, probably suicide (still TBC).
Major political conspiracy? Mr Aloumekani's deposition
Witness summonses to Djibouti Head of State and officials
Arrest warrants
Subject: Legal Documents at Stake
Subject of the case as found on the Application:
"concern[ing] the refusal by the French governmental and judicial authorities to execute an international letter rogatory regarding the transmission to the judicial authorities in Djibouti of the record relating to the investigation in the Case against X for the murder of Bernard Borrel, in violation of the Convention on Mutual Assistance in Criminal Matters between the [Djiboutian] Government and the [French] Government, of 27 September 1986, and in breach of other international obligations borne by [France] to . . . Djibouti
Legal documents at stake
Convention on Mutual Assistance in Criminal Matters (1986)
Treaty of Friendship and Cooperation (June 1977):
enhance relations and cooperation between the countries
Vienna Convention on Diplomatic Relations (April 1961):
focuses on respect of diplomatic privileges and immunities
Convention on Prevention and Punishment of Crime against Internationally Protected Persons, Including Diplomatic Agents (1973):
defines IPPs
Subject
Djibouti requests the court's assistance on the basis of Art. 38 par. 5 of the Rules of the Court:




Court is dealing with a contentious case based on a
jurisdictional clause
-> Article 13 par. 1 of 1973 Convention: "
Any dispute between two or more States Parties concerning the interpretation or application of this Convention which is not settled by negotiation shall, at the request of one of them, be submitted to arbitration. If within six months from the date of the request for arbitration the parties are unable to agree on the organization of the arbitration, any one of those parties may refer the dispute to the International Court of Justice by request in conformity with the Statute of the Court”
Does the Court have jurisdiction? #1
Court's jurisdiction depends on the states' consent.
In this case,
forum prorogatum
(which stems from Art. 38 par. 5).
Forum prorogatum:
Prorogated jurisdiction, which occurs when a power is conferred – by the consent of the parties and following the initiation of proceedings – upon the International Court of Justice, which otherwise would not have adjudicated.
France had agreed expressly and
ad hoc
to the Court's jurisdiction
Parties and Claims
Applicant:
Djibouti
Claims
:
1) Refusal to execute letter rogatory: violation of Convention of Mutual Assistance in Criminal Matters and Treaty of Friendship and Cooperation
2) Witness summonses and arrests warrants to Head of State and senior officials: violation of customary international law (1973 Convention) and Vienna Convention of 1961
Requests:

1) France should submit Borrel file in its entirety (or following Court's indications)
2)France should immediately withdraw the witness summons and declare them null
Parties and Claims
Respondent
: France
Counterarguments
: The court lacks jurisdiction to rule on those claims presented by Djibouti which go beyond the subject of the dispute as stated in the Application, hence wishes to declare them inadmissible and reject all other claims made by the Republic of Djibouti
Parties'
tit-for-tat
The Application
Djibouti files an application against France concerning the
refusal
by french authorities to execute an
international letter rogatory
regarding the transmission to the Djiboutian authorities of information concerning the
investigation on Bernard Borrel's murder.


Letter rogatory:
Letters rogatory are the customary means of obtaining judicial assistance from overseas
Judge ad hoc Yusuf
Judge ad hoc Guillaume
Court's Rulings
Remedies: Court won't oblige France to publish the Borrel's file, since it has no knowledge of what's contained in it. The court determines that its finding that France has violated the obligation constitutes appropriate satisfaction.

Dissenting Opinions
Judge Tomka
: underlines contradiction between Court's assertion that the consent of the respondent must be
certain
(forum prorogatum) and the Court's determination to
"discern"
the subject-matter of the dispute from a reading of the whole Application.
Jurisdiction ratione temporis: "Je vois mal comment la France pouvait expressément accepter la compétence de la Cour pour un différend concernant un fait qui ne s'était pas encore produit" (referring to 2007 summonses to Djibouti Hos)
Judge Koroma
: the Court should have taken into account the principle of reciprocity (a principle which is inherent and comprehended within a bilateral treaty, such as the 1986 Convention). He states that a state enters into a treaty relationship expecting that the other party will perform its own treaty or conventional obligations - from his pov, Djibouti was entitled to expect that France would comply, on the basis of reciprocity, with Djibouti's request for the execution of its letter rogatory since it had earlier complied with France's requests dealing with the same subject-matter, namely the investigation into the death of Mr Borrel.
Subject of the application
Does the Court have jurisdiction #2
Jurisdiction ratione materiae
: refers to court's authority to decide over a particular case (aka subject-matter jurisdiction)
How does it apply to this case?
France: jurisdiction's extent limited to
subject of application
; no jurisdiction over summonses & arrests warrants (as Djibouti wished).
However the Court found that its consent went further than that: it was up to the Court itself "
to discern properly the extent of the consent given by the Parties
"
Court: by France's choice of words, its consent goes beyond the mere subject of the application; France had full knowledge of Djibouti's claims and didn't wish to exclude certain aspects of the dispute from its jurisdiction. Hence, determining its jurisdiction ratione materiae, the court accepts Djibouti's contention that the application also refers to France's violations of diplomatic immunities.
Summonses to Djiboutian Head of State and officials (2005 - 2004 - 2007):
Arrest warrants of 2006:
Jurisdiction #3
Jurisdiction ratione temporis
: jurisdiction of a Court over a proposed action in relation to the passage of time.
How does it apply to this case?
It applies to Djibouti's request for the Court's jurisdiction over violations of diplomatic immunities that happened after 2006. It argues that they referred to claims already existent in the application
Court: France didn't possibly consent to jurisdiction over facts that were still to happen at the moment of the application. Important: with this, the Court denies its jurisdiction over the arrest warrants of 2006
but not the witness summonses of 2007.
Bibliography
Convention on Prevention and Punishment of Crimes against Internationally Protected Persons, including Diplomatic Agents (1973):
http://legal.un.org/ilc/texts/instruments/english/conventions/9_4_1973.pdf
Vienna Convention on Diplomatic Immunities (1961):
http://legal.un.org/ilc/texts/instruments/english/conventions/9_1_1961.pdf
ICJ rules of Court:
http://www.icj-cij.org/documents/index.php?p1=4&p2=3&
How the Court works:
http://www.icj-cij.org/court/index.php?p1=1&p2=6
The Hague Justice Portal:
http://www.haguejusticeportal.net/index.php?id=6179
Forum Prorogatum Before the ICJ:
http://www.haguejusticeportal.net/Docs/Commentaries%20PDF/Vincent_Djibouti_EN_II.pdf
Basis of the Court's jurisdiction:
http://www.icj-cij.org/jurisdiction/index.php?p1=5&p2=1&p3=2
Forum Prorogatum:
http://www.law-pedia.com/forum-prorogatum.htm
Jurisdiction ratione materiae:
http://definitions.uslegal.com/j/jurisdiction-ratione-materiae/
Jurisdiction ratione temporis:
http://definitions.uslegal.com/j/jurisdiction-ratione-temporis/
Full transcript