Ministry Statements & Speeches:
1. Madam President, members of the Court, it is an honour to appear before you today and to present New Zealand’s submissions in these critical proceedings.
2. New Zealand has chosen to intervene in these proceedings because we consider that the issues in this case go to the very heart of the international rule of law and the protection of this Court’s role in the peaceful settlement of disputes.
Support for the submissions of Ukraine and intervening States
3. Madam President, I do not intend to repeat every point put forward in New Zealand’s Written Observations. Nor will I rehearse the arguments made by Ukraine and the intervening States in their written and oral submissions. We broadly support the points they have made.
4. In particular:
a. New Zealand supports the United Kingdom’s analysis of the criteria for the establishment of a legal dispute;
b. We also endorse the points that Australia made this morning regarding the scope of the Court’s jurisdiction ratione materiae under Article IX; and
c. We agree with the arguments put forward by a number of States confirming that this Court clearly has the power to declare that an applicant State has complied with its obligations under the Convention.
5. On all three issues, the Russian Federation seeks to artificially restrict the jurisdiction of this Court – in a manner that is inconsistent with both the plain language of Article IX, and the Court’s previous decisions. In New Zealand’s view, there is nothing in the arguments put forward by the Russian Federation that warrants a departure from the jurisprudence of the Court.
Consequences of refusal to comply with provisional measures for the determination of jurisdiction
6. Madam President, I will focus the remainder of my submissions on one specific element of New Zealand’s Written Observations regarding the interpretation of Article IX.
7. That is: how a party’s outright refusal to comply with provisional measures may be relevant to the Court’s determination of jurisdiction under the Convention.
8. As Ukraine has already set out in its Written Observations, and as elaborated by Mr Gimblett yesterday, there is no question that this Court can find that a party has violated a provisional measures order, regardless of how it may ultimately rule on jurisdiction. Such a violation is both an insult to the judicial authority of the Court and a breach of the Statute itself.
9. In New Zealand’s submission however, a party’s refusal to comply with provisional measures also carries two further important legal consequences:
a. First, it can provide evidence of the existence of a legal dispute between the parties;
b. And second, it is a substantive breach of Article IX itself.
10. Madam President, as this Court recognised when applying Article IX in the Myanmar Genocide case, in order for a dispute to exist, there must be a “clear conflict of legal views” – “the claim of one party [must be] positively opposed by the other”.
11. Further, as the Court stated in the same case, the conduct of the parties after an application is filed can provide evidence of the existence of a dispute. In determining whether a dispute exists, the Court can look at what a party did – and did not do – after the application was filed.
12. A party’s refusal to comply with provisional measures is a clear example of such conduct. Where, in defiance of the Court’s direction to stop, a party:
- persists with actions that form the basis of the claim against it; and
- justifies those actions on the same basis as gave rise to the claim;
the Court may look to that as evidence. Evidence not just that the party denies the jurisdiction of this Court, but evidence also of the existence of a legal dispute.
13. It is hard to imagine any stronger indication that a party positively opposes the legal and factual claims that have been made against it – or conduct that more clearly demonstrates that there is a conflict of views between the parties on the legal issues and their consequences. Such non-compliance acts as a complete rejection of the applicant’s claims. It is conduct that speaks as loud as any words.
14. But the consequences of a party’s refusal to comply with provisional measures are more than evidential. In New Zealand’s submission, such a refusal also constitutes a substantive breach of Article IX itself – thus creating a basis for the jurisdiction of the Court.
15. Madam President, Article IX forms an integral part of the Convention. It serves the same high ideals as the rest of the Convention, which form the “foundation and measures of all its provisions”. Proper fulfilment of Article IX is essential to the fulfilment of the objects and purposes of the Convention itself.
16. Like all treaty obligations, Article IX must be performed in good faith. The centrality of that principle – codified in Articles 26 and 31 of the Vienna Convention on the Law of Treaties – is beyond doubt.
17. It is likewise established that the principle of good faith carries with it a duty to co-operate in the settlement of the dispute. That duty to co-operate – expressly confirmed by the Arbitral Tribunal in the South China Sea arbitration – mirrors the duty to co-operate in the context of negotiation, which was affirmed by this Court in the North Sea Continental Shelf cases, and has been consistently re-affirmed in the 50 years since.
18. Article IX is thus more than a merely procedural obligation. It also has substantive character. Through Article IX, the Contracting Parties have agreed to a procedure for the settlement of their disputes – that is, submission to this Court. At the same time, they have assumed a substantive duty to co-operate and comply with all aspects of that procedure reasonably and in good faith. That duty applies equally to all States – whether large or small.
19. A party to a dispute may breach its obligations under Article IX in a number of ways. It may, for example, ignore the Court’s proceedings entirely. Or it may reject the Court’s authority and refuse to comply with the provisional measures it has indicated.
20. Such actions constitute a substantive breach of Article IX itself. By failing to comply with the Court’s procedure, the party has breached the duty implicit within Article IX. And that breach may in turn give rise to a dispute as to the “application or fulfilment” of the Convention – itself providing a basis for the jurisdiction of this Court.
Conclusion
21. Madam President, the impacts of a refusal to comply with the binding Orders of this Court extend well beyond the parties to an individual dispute.
22. As the Court has consistently found – most recently in the Myanmar Genocide case – the obligations contained in the Convention are obligations erga omnes. It follows that all States Parties to the Convention have an interest in securing compliance with those obligations – including the obligations in Article IX.
23. A party’s refusal to comply with provisional measures is a breach of Article IX, one with significant and far-reaching consequences. It undermines the high ideals of the Convention, it challenges the authority of the Court, it aggravates the underlying dispute, and it threatens the maintenance of international peace and security. As this case demonstrates, those consequences are not merely theoretical – they are real – with political, economic, and humanitarian impacts that have been felt across the globe.
24. Thank you Madam President, members of the Court, that concludes the submissions of New Zealand.