UPDATE: Since I wrote this piece it has been announced that the rival Honduran leaders have reached agreement to resolve the crisis relating to the Presidency (see BBC report here). It is not clear what impact this will have on the ICJ case discussed below.
The new “government” of Honduras has instituted proceedings in the International Court of Justice against Brazil which has given refuge in its embassy in Honduras to “former” Honduran President José Manuel Zelaya (see ICJ Press Release). According to the Application submitted to the Court yesterday by the Honduran Ambassador in the Netherlands:
the “dispute between the Republic of Honduras and the Federative Republic of Brazil relates to legal questions concerning diplomatic relations and associated with the principle of non-intervention in matters which are essentially within the domestic jurisdiction of any State, a principle incorporated in the Charter of the United Nations”.
In particular, the document indicates that “[Mr. José Manuel Zelaya Rosales and] an indeterminate number of Honduran citizens”, who have been taking refuge in the Brazilian Embassy in Honduras since 21 September 2009, “are using [its] premises . . . as a platform for political propaganda and thereby threatening the peace and internal public order of Honduras, at a time when the Honduran Government is making preparations for the presidential elections which are due to take place on 29 November 2009”. It is stated that “[t]he Brazilian diplomatic staff stationed in Tegucigalpa are allowing Mr. Zelaya and his group to use the facilities, services, infrastructure and other resources in order to evade justice in Honduras”.
According to the document submitted by Honduras:
the primary purpose of this Application is to secure a declaration that Brazil has breached its obligations under Article 2 (7) of the Charter and those under the 1961 Vienna Convention on Diplomatic Relations
requests the Court to adjudge and declare that Brazil does not have the right to allow the premises of its Mission in Tegucigalpa to be used to promote manifestly illegal activities by Honduran citizens who have been staying within it for some time now and that it shall cease to do so.
There is no indication in the press release about the grounds on which Honduras claims that the Court has jurisdiction to consider the case. While Honduras has made a declaration under Art. 36(2) of the ICJ Statute recognising the compulsory jurisdiction of the ICJ, Brazil has not. However, both States are parties to the Pact of Bogotá 1948(The American Treaty on Pacific Settlement, see here). Under, Art. 31 of that treaty, parties accept the compulsory jurisdiction of the ICJ.
The majority of the international community and international institutions such as the UN and the OAS appear to have taken the view that removal of President Zelaya was not only unconstitutional under domestic law but also illegal as a matter of international law. In previous EJIL:Talk! posts (here and here) Brad Roth has discusssed the international reaction to the Honduran crisis and argued that the response has the potential to effect (an ill advised) shift in foundational norms governing the relationship between international and domestic legal authority. Although the ICJ proceedings instituted by the new authorities in Honduras are not framed in these terms, the case may mean that the ICJ gets to pronounce on whether the new “government” is actually the government. In fact, it may well be that it is the ICJ that has the definitive say as a matter of international law on who is the legitimate government in Honduras! Read the rest of this entry…