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Home Posts tagged "ICJ"

Abuse of Process and Abuse of Rights Before the ICJ: Ever More Popular, Ever Less Successful?

Published on October 15, 2019        Author: 

Abuse of process and abuse of rights objections seem to have become increasingly popular in cases before the ICJ. While acknowledging that the two concepts have much in common, the Court has distinguished between them by noting that ‘abuse of process’ relates to judicial proceedings and is a preliminary issue that may bar admissibility, while ‘abuse of rights’ relates to the merits, as it ‘cannot be invoked as a ground of inadmissibility when the establishment of the right in question is properly a matter for the merits’ (Equatorial Guinea v. France, paras. 146, 150-151). Simply put, as a general rule, abuse of process relates to the manner of initiating (and conducting) proceedings, while abuse of rights relates to the substance of the dispute.

This apparent trend is taking place despite the fact that the Court almost invariably denies such objections (as in Certain Phosphate Lands in Nauru, paras. 37-38 and Border and Transborder Armed Actions, para. 94). It has repeatedly noted (as in Equatorial Guinea v. France, para. 150; Certain Iranian Assets, para. 114; and Jadhav, para. 49) that an abuse of process plea could only be upheld in ‘exceptional circumstances’. In some instances, the ICJ deferred the issue to a later stage of the proceedings (as in Qatar v. UAE, para. 39 and Equatorial Guinea v. France, para. 151).

In recent ICJ case law, relying explicitly or implicitly on the principle of good faith, parties have accused each other of abuse of process or rights in a range of circumstances. For example, abuse was alleged when two proceedings in relation to the same object were started in Qatar v. UAE; when there was an alleged violation of the dispute settlement mechanisms provided for in the treaty in Qatar v. UAE and Jadhav; when the relief sought was unavailable under the treaty in Equatorial Guinea v. France and Jadhav; and when there was an alleged incompatibility between the application and the object and purpose of the treaty in Certain Iranian Assets and Jadhav. Read the rest of this entry…

 

Clarification and Conflation: Obligations Erga Omnes in the Chagos Opinion

Published on May 21, 2019        Author:  and

The recent ICJ Advisory Opinion concerning the Chagos Islands has, understandably, received a great deal of attention. The controversies surrounding the more political elements of the decision have dominated headlines. However, in this blog post, we want to focus on one particular aspect of the Court’s decision. Tucked away at the end of the opinion, paragraph 180 recognises the erga omnes character of the obligation to respect self-determination and finds that there exists an obligation, binding on all states, to cooperate with the UN to complete the decolonisation of Mauritius:

‘180. Since respect for the right to self-determination is an obligation erga omnes, all States have a legal interest in protecting that right […]. The Court considers that, while it is for the General Assembly to pronounce on the modalities required to ensure the completion of the decolonization of Mauritius, all Member States must co-operate with the United Nations to put those modalities into effect. As recalled in the Declaration on the Principles of International Law concerning Friendly Relations and Co-operation among States in accordance with the Charter of the United Nations:

“Every State has the duty to promote, through joint and separate action, realization of the principle of equal rights and self-determination of peoples, in accordance with the provisions of the Charter, and to render assistance to the United Nations in carrying out the responsibilities entrusted to it by the Charter regarding the implementation of the principle” […].’ (emphasis added).

This is followed by confirmation in paragraph 182 and in operative paragraph 5 (with only Judge Donoghue dissenting, on unrelated grounds), that ‘all Member States must co-operate with the United Nations to complete the decolonization of Mauritius.’

Since its recognition in 1970 (Barcelona Traction [33]-[34]), the concept of erga omnes has been the subject of heated academic debate and has surfaced a handful of times in ICJ judgments, opinions, and arguments before the Court (e.g. here [29], here [64], and here [15]). However, the notion of erga omnes remains surrounded by a considerable lack of conceptual clarity. There is frequent conflation, even at the level of the ICJ, between this and other international legal concepts. Paragraph 180 of the Chagos opinion provides both a well-needed clarification and a potential source of confusion in this regard. Read the rest of this entry…

 

An Analysis of the Use of ICJ Jurisprudence in Investor-State Dispute Settlement

Published on May 13, 2019        Author: 

Last October 2018, the International Court of Justice (“ICJ” or “the Court”) issued its merits judgment in Obligation to Negotiate Access to the Pacific Ocean (Bolivia v. Chile). In a brief passage, the Court summarily dismissed Bolivia’s argument that the doctrine of “legitimate expectations” exists in general international law outside the context of fair and equitable treatment clauses. Despite the brevity of the Court’s analysis – and the minor importance of the legitimate expectations issue in that case – this finding drew attention from media outlets dedicated to investor-State dispute settlement (“ISDS”), including IAReporter. That the discussion of legitimate expectations in the Bolivia v. Chilejudgment was considered newsworthy in the ISDS sphere is a reflection of the importance that ISDS practitioners place on ICJ jurisprudence. As Professor Alain Pellet observed in a 2013 lecture, “[n]ot only do … investment tribunals… refer to the jurisprudence of the World Court, but they show a particular deference to it.”

There is some evidence, discussed below, to suggest that ISDS tribunals have referred to ICJ jurisprudence with increased frequency in recent years. Moreover, as ICJ President Abdulqawi Ahmed Yusuf highlighted in his October 2018 speech to the U.N. General Assembly, the Court today is particularly busy. There may thus be even more opportunities for jurisprudential cross-pollination in the near future. Now is an opportune time to consider why, when, and how investor-State tribunals refer to ICJ jurisprudence.

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Venezuela’s Non-Participation Before the ICJ in the Dispute over the Essequibo Region

Published on June 29, 2018        Author: 

On 18 June 2018, Venezuela notified the International Court of Justice that it intends not to participate in the proceedings before the Court in the case over the Essequibo region brought by Guyana (for an excellent analysis of Guyana’s application and the complex historical and procedural background on this blog see here). Venezuela’s move is reminiscent of a long series of cases before the PCIJ and then the ICJ in which the defendant State chose not to appear. At its peak in a period in the 1970/80s this phenomenon had almost become the norm rather than the exception, a situation widely seen as symptomatic of a major crisis of confidence in the Court. The Institut de Droit International noted with concern ‘that the absence of a party is such as to hinder the regular conduct of the proceedings, and may affect the good administration of justice’. This short contribution will assess whether similar concerns are warranted now that the Court will once again be confronted with this peculiar procedural situation. It will first briefly evaluate to what extent Venezuela’s announcement may be part of a re-emerging trend of non-participation. It will then consider how Venezuela’s decision will legally impact the proceedings, highlight key challenges for the conduct of the proceedings, and suggest how and to what extent the Court can address these.  

Back to the 1970s?

Since the US ceased participating in the Nicaragua case following the decision on jurisdiction more than thirty years ago, there have only been rare incidents of (temporary) non-participation in contentious proceedings before the ICJ (Bahrain was not represented when the second judgment on jurisdiction and admissibility in Maritime Delimitation and Territorial Questions was delivered, nor at a later meeting of the Court when time limits for submissions at the next stage were fixed; note also in the different context of advisory proceedings Israel’s refusal to take part in the Wall case). Non-participation thus seemed to have gone out of fashion – France, for example, had failed to appear in the Nuclear Tests cases in 1973/74 but chose to participate when New Zealand requested the Court to resume that case in 1995.

Recently, however, Pakistan who had submitted a counter-memorial did not appear in the oral hearings in the Marshall Islands case. Croatia only partially participated in the ad hoc arbitration with Slovenia. And Venezuela’s announcement comes only relatively shortly after China and Russia did not take part in major UNCLOS proceedings (the South China Sea and the Artic Sunrise cases). Even among these States, however, participation at present seems to remain the norm: Russia, for example, is currently participating in cases brought by Ukraine, both before the ICJ and in an UNCLOS Annex VII arbitration. Read the rest of this entry…

 
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Sanctioning Qatar Continued: The United Arab Emirates is brought before the ICJ

Published on June 22, 2018        Author: 

On 11 June, Qatar initiated proceedings (“Application”) against the United Arab Emirates (“the UAE”) at the International Court of Justice under the Convention on the Elimination of all Forms of Racial Discrimination (CERD) and requested provisional measures. This step is yet another episode in the diplomatic standoff that took the world by surprise last year when Saudi Arabia, the UAE, Bahrain and Egypt (“the Quartet” or “Gulf States”) adopted a series of stringent measures against the oil-rich kingdom. When the crisis first erupted the Qatari foreign minister alluded to a violation of the principle of non-intervention when he claimed that the genuine motive behind the sanctions was “about limiting Qatar’s sovereignty, and outsourcing [its] foreign policy”. Rather than resort to retaliatory sanctions Qatar has turned to diplomacy, lobbying and various dispute settlement mechanisms. It has seized the United Nations, notably the Office of the High Commissioner for Human Rights (“OHCHR”), and the International Civil Aviation Organization (see also here and here) in search for support in condemning the coercive measures as unlawful. Qatar added pressure to the sanctioning States when it filed a request for consultation before the WTO’s dispute settlement body in August 2017 but ultimately decided to only pursue the complaint against the UAE. As noted by Johannes Fahner (see here) the proceedings before the WTO could lead to a GATT Article XXI case, which States have tended to avoid. By engaging the ICJ Qatar is taking its dispute against the UAE to the next level. Unlike the UAE, Saudi Arabia, Bahrain and Egypt adopted reservations to the ICJ’s jurisdiction under Article 22 of the Convention upon ratification.

In its Application, Qatar claims the expulsion of Qatari nationals from the UAE’s territory violates General Recommendation 30, adopted by the CERD Committee in August 2004 (para. 59), and have led to human rights violations:

“including the rights to marriage and choice of spouse, freedom of opinion and expression, public health and medical care, education and training, property, work, participation in cultural activities, and equal treatment before tribunals”

solely on the basis of their nationality contrary to CERD Article 5 (para. 63). The Application further lists the travel embargo – which closes off air, sea and land to and from Qatar – among the discriminatory measures as well as the shutting down of local Al-Jazeera offices and the blocking off of transmissions from Al-Jazeera and other Qatari-based media outlets. In addition, Qatar alleges the UAE has encouraged rather than condemned discrimination by:

“allowing, promoting, and financing an international anti-Qatar public and social media campaign; silencing Qatari media; and calling for physical attacks on Qatari entities”

in violation of CERD Articles 2 and 7 (paras 57 and 61 to 63). The UAE is also said to be responsible for breaching CERD Article 4 and inciting hate speech (para. 60). According to Qatar it has “fail[ed] to provide effective protection and remedies to Qataris to seek redress against acts of racial discrimination through UAE courts and institutions” in violation of Article 6 CERD (para. 64). Read the rest of this entry…