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Home International Tribunals Archive for category "International Court of Justice"

Part I: The Partition of the Chagos Archipelago and the Haunting Spectre of the South West Africa Cases

Published on September 20, 2018        Author: 
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[Part I of a two-part post] 

The advisory proceedings concerning the Legal Consequences of the Separation of the Chagos Archipelago from Mauritius in 1965 are over, but an opinion that answers the legal questions raised in the request could have consequences well beyond the Indian Ocean.

Earlier this month, Stephen Allen contributed a post on the self-determination arguments made in relation to the first question asked of the court. Like Allen, I have taken sides in my scholarly work, although unlike Allen, I have argued that self-determination emerged as a customary norm of international law before 1970. As I argued in my article on the arbitration (2010-2015) between the UK and Mauritius (published in volume 19 of The Max Planck Yearbook of United Nations Law, 2016, pp. 419-468), the emergence of a norm prohibiting partition in the decolonization context would have outlawed the division of the archipelago before independence in 1968, unless it could be shown that Mauritius consented to the separation.

In this post, I argue that the legal arguments raised by the Applicants in the South West Africa Cases could be of direct relevance to the opinion, because although the ICJ refused to address the merits, the cases spanned a period of time (1960-1966) that is germane to any contemporary assessment of the legality of the decision to partition the Chagos Archipelago in 1965. While the Applicants did not reference the Colonial Declaration (GAR 1514 (XV) (1960) in their pleadings, they nevertheless argued that international law in the 1960s prohibited partition, demonstrating that there were principles of law at stake that proscribed the non-consensual division of territory.

What remains missing is an authoritative opinion from the world court. Read the rest of this entry…

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The Oral Hearings in ‘Legal Consequences of the Separation of the Chagos Archipelago from Mauritius in 1965’

Published on September 11, 2018        Author: 
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The oral hearings in the advisory proceedings concerning the Legal Consequences of the Separation of the Chagos Archipelago from Mauritius in 1965 took place at the ICJ last week. Readers will recall the two questions posed by the General Assembly in its request for an Advisory Opinion (Resolution 71/292) and the procedural and propriety issues raised by this case, as discussed by Marko, Dapo and Antonios – here, here and here. A host of States – and the African Union – participated in the proceedings and their voluminous written and oral statements/comments will surely keep interested scholars busy for a long time to come. In this post, I will try to restrict myself to the task of offering a few initial comments on the self-determination arguments made in relation to the first question (essentially, was the decolonization of Mauritius lawfully completed when it acceded to independence in 1968, following the detachment of the Chagos Archipelago?). For this purpose, I will focus on the claims made by the UK and Mauritius for the sake of brevity, and not because I agree with the UK’s contention that Mauritius is the ‘de facto claimant’ in this case (Transcript p. 36).

When approaching the claims and counter-claims concerning the Chagos Archipelago – or the British Indian Ocean Territory (‘BIOT’) – it is worth bearing in mind at least two important considerations. First, the UK is clearly on the wrong side of history as far as both the creation and maintenance of the BIOT are concerned. Secondly, the closest comparable case in the ICJ’s jurisprudence, the Western Sahara Advisory Opinion, is different in one key respect. The Western Sahara Opinion was sought while the General Assembly was actively engaged in a fraught and flawed attempt at decolonization and it was delivered when the crisis was still unfolding. In contrast, in the present proceedings, the ICJ has been invited to answer questions which not only require it to establish the legal significance of events which occurred largely between 1965-1968 but also to assess their present consequences. Undoubtedly, this is a difficult task and we shall have to wait and see whether the Court responds positively to the Request or whether it adopts a more non-committal approach, as it did in its Kosovo Advisory Opinion.

Self-determination and Customary International Law

The UK argued that the right of self-determination had not crystallized as a norm of customary international law (CIL) by either 1965 or 1968 (e.g. Transcript, p. 48). Specifically, it denied that the Colonial Declaration (GAR 1514 (XV)(1960)) generated any binding legal obligations as far as Mauritius’ decolonization was concerned. The 1960 Declaration proclaimed the core right – that ‘all peoples have the right to self-determination’ (para. 2) – while stating that: ‘Any attempt aimed at the partial or total disruption of the national unity and the territorial integrity of a country is incompatible with the purposes and principles of the [UN] Charter’ (para. 6). The UK claimed that the right of self-determination only acquired CIL status with the adoption of the Declaration on Friendly Relations (GAR 2625 (XXV)(1970). It relied on voting records, and the statements made, by State representatives, in the context of the development and adoption of these, and other, resolutions (and contemporaneous academic opinions) in support of its preferred interpretation. Read the rest of this entry…

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The Iranian Suit against the US Sanctions and the 1955 Treaty of Amity: Brilliant Plan or Aberration?

Published on September 7, 2018        Author: 
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The Iranian economy is already feeling the effects of the United States economic sanctions that are successively being reinstated following the US withdrawal from the Joint Comprehensive Plan of Action (JCPOA) on 8 May 2018. In an attempt to save what can be saved, Iran seized the International Court of Justice in July requesting the latter to order and declare that the 8 May and subsequent sanctions are unlawful; that the United States shall stop its threats with respect to the further announced sanctions and that it shall compensate Iran. The claim is accompanied by a request for provisional measures by which Iran seeks to obtain, in particular, the immediate suspension of the sanctions and the non-implementation of the sanctions announced. Last week, both parties met in court for the hearings on the provisional measures request.

Iran has not claimed a violation of the JCPOA but alleges breaches of the Treaty of Amity, Economic Relations, and Consular Rights signed by Iran and the United States in 1955. The reason is simple: neither Iran nor the United States accepts the compulsory jurisdiction of the ICJ, both states having withdrawn their optional clause declarations. A compromis not being in sight, Iran can only ground the ICJ’s jurisdiction on a compromissory clause. While the JCPOA does not contain such a clause, the Treaty of Amity stipulates in its Article XXI (2) that “[a]ny dispute between the High Contracting Parties as to the interpretation or application of the present Treaty, not satisfactorily adjusted by diplomacy, shall be submitted to the International Court of Justice, unless the High Contracting Parties agree to settlement by some other pacific means.”

The case, and the provisional measures request, raises many interesting questions, including  for example, whether the mainly economic damages alleged by Iran are irreparable as is required for the indication of such measures, and whether the request could possibly pre-empt the decision on the merits. However, this post is uniquely concerned with whether the idea to rely on the Treaty of Amity helps overcome the hurdle of jurisdiction. While the existence of jurisdiction need only be proved prima facie in the provisional measures phase, the Court will at a later stage have to take a definite decision (assuming the case is not dismissed for manifest lack of jurisdiction at the provisional measures stage). One of the most problematic issues is whether the dispute is about the interpretation or application of the Treaty of Amity despite the existence of the JCPOA. If this is the case, invoking the Treaty of Amity was a smart move by Iran.

The Iranian idea can potentially be attacked in two places: the actual scope of the application and the request, as well as the potential inapplicability of the Treaty of Amity. Read the rest of this entry…

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

Published on June 29, 2018        Author: 
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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: 
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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…

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The Dispute between Guyana and Venezuela over the Essequibo Region

Published on April 11, 2018        Author:  and
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Introduction

On 29 March 2018, Guyana filed an Application against Venezuela before the International Court of Justice (‘ICJ’) concerning the two States’ long-standing dispute over the Essequibo region. This Application was filed after the UN Secretary General decided on 30 January 2018 that the dispute between Guyana and Venezuela should be submitted to the Court. The Secretary General’s decision was welcomed in Guyana and received support from Caribbean countries. But it was received with some hostility in Venezuela. A decision by the ICJ could be the final act in a dispute which has, sometimes bitterly, divided the neighbouring countries for over a century. The dispute between the two States includes both procedural and substantive elements.

Procedurally, the parties disagree (and have disagreed for some time) as to whether the ICJ has jurisdiction to hear the dispute. As will be discussed below, the Secretary General’s role in the dispute is based on the provisions of the Geneva Agreement of 1966 between the UK (the colonial power in Guyana at that time) and Venezuela. Under this agreement, in the event that bilateral efforts to solve the dispute fail, the Secretary General is empowered to choose ‘…another of the means stipulated in Article 33 of the Charter of the United Nations…’. However, questions arise as to whether the Secretary General may submit the dispute to the ICJ in a manner which is binding on both parties. As for the substantive aspect of the dispute, the parties disagree as to the alleged nullity and invalidity of an arbitral award handed down in 1899 which found that the Essequibo region lies on British Guiana’s side of the border with Venezuela.

The resolution of the dispute is of significant economic interest to the parties, as the area is rich in natural resources: the world’s largest untouched oil reserves lay in the east of Venezuela, around the Orinoco river delta, close to the disputed border with Guyana. Natural resources are also present in the (as yet undelimited) coastal waters, and Guyana’s exploratory activities in the area have been protested by the Venezuelan government. In 2015, a Venezuelan Presidential Decree (1787, as amended by Decree 1859) laid claim to Atlantic waters off the Essequibo coast, and Venezuela’s navy has intervened in the disputed area on numerous occasions. The Decree met with protest from Guyana. As is common in these disputes, nationalist sentiment rides high as sovereignty over the area is seen as a matter of national honour and pride, and the rhetoric concerning the dispute has intensified on both sides. Venezuelan officials and civil society (see here and here) have decried the UNSG’s decision to submit the dispute to adjudication by the ICJ as a ‘hostile’ act against Venezuela. In Guyana, where Venezuela’s conduct is often perceived as a form of bullying by its more powerful neighbour, the Government is organising a public awareness campaign, including educating schoolchildren about the controversy. Read the rest of this entry…

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African Union v International Criminal Court: episode MLXIII (?)

Published on March 23, 2018        Author: 
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It never gets boring. At the latest African Union (AU) summit, which wrapped up recently in Addis Ababa, the AU-ICC controversy went into its next round; this time, however, with a rather constructive proposal for easing the tensions that had built up over the past decade or so as a result of the uneven application of international criminal justice. In this post I will reflect upon the implications of the recent summit decision for the future of international criminal justice, including the debate about immunities, the consequences of potential arrest warrants for high-ranking Burundian officials, as well as the debate about an African mass withdrawal. 

Previous AU responses to what was being perceived as neo-colonial interference on the part of the International Criminal Court had not been very constructive – ranging from issuing shrill statements calling the Court “a political instrument targeting Africa and Africans“, threatening mass withdrawal, blocking the opening of the ICC Liaison Office in Addis, and announcing non-cooperation in the arrest of suspects. This time, by contrast, the AU opted for a more constructive, de-escalatory approach, using the tools of international law – instead of international politics – to make its voice heard: It announced that it would seek, through the UN General Assembly, an advisory opinion from the International Court of Justice (ICJ) on the question of immunity. The AU also decided that it would seek an interpretative declaration from the Assembly of States Parties (ASP) on how Article 27 of the Rome Statute of the ICC, which removes immunity for state officials, and Article 98, which addresses cooperation with respect to a waiver of immunity and consent to surrender relate to one another, and the related question of how a Security Council referral affects the enjoyment of immunities of officials of non-state parties. The proposal to seek an advisory opinion from the ICJ was first made several years ago. It is not clear why this proposal was shelved in the meantime. Perhaps the AU feared the ICJ would find in favor of the ICC’s position. Read the rest of this entry…

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Environmental Damages, Environmental Reparations, and the Right to a Healthy Environment: The ICJ Compensation Judgment in Costa Rica v. Nicaragua and the IACtHR Advisory Opinion on Marine Protection for the Greater Caribbean

Published on February 14, 2018        Author: 
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On 2 February 2018, the International Court of Justice issued a landmark judgment on compensation for environmental damages in Certain Activities Carried Out By Nicaragua in the Border Area (Costa Rica v. Nicaragua), Compensation Owed by the Republic of Nicaragua to the Republic of Costa RicaThe ICJ’s decision was followed shortly thereafter on 9 February 2018 by a significant Advisory Opinion of the Inter-American Court of Human Rights (IACtHR), declaring the fundamental importance of the right to a healthy environment to human existence and States’ corollary obligations to protect human rights through marine environmental protection in the Greater Caribbean region (summary report of the Advisory Opinion in English found here, while the full text of Colombia’s request for advisory opinion on this question can be found here). The 2 February 2018 ICJ Compensation Judgment follows its 16 December 2015 Judgment declaring Nicaragua liable for activities in Costa Rican territory, such as the excavation of three caños and establishment of military presence in said territory (see my previous comments on evidentiary approaches in this 2015 Merits Judgment here.)

While both the 2 February 2018 ICJ judgment on compensation and the 9 February 2018 IACtHR Advisory Opinion signify the central importance of international environmental norms to international human rights law, the methodological approaches taken by the World Court and the regional human rights court for Latin America reveal some sharp differences between these tribunals.  In adjudging compensation for environmental damages caused by Nicaragua to Costa Rica, the ICJ took a rather ‘incrementalist’ approach to quantification and empirical proof for every head of damage asserted – a methodologically ambiguous and context-sensitive approach which is not easily replicable for future environmental cases, given the complex nature of environmental damages in any given dispute.  The ICJ did not adopt Costa Rica’s theory of an “ecosystem approach” to damage assessment, and neither did it adopt Nicaragua’s position that “replacement costs” be used to estimate environmental damages.  Unlike the IACtHR Advisory Opinion’s broad acceptance of States’ continuing individual obligations towards preventing transboundary harm that could ensue from infrastructure projects in the Greater Caribbean, the ICJ Judgment carefully reduced Costa Rica’s claim of compensation by delineating between Nicaragua’s compensatory duties as part of environmental reparations, and Costa Rica’s own environmental mitigation duties in the presence of foreseeable environmental damage.  These recent developments suggest that, while it is recognized that all States share responsibilities towards environmental protection especially under the precautionary principle, the precise allocation of environmental reparations owed through compensation will not always lie strictly on the side of the State that is the environmental tortfeasor, at least where the ICJ is concerned.

The following subsections summarize the 2 February 2018 ICJ Judgment reasoning on compensation, the 9 February 2018 IACtHR Advisory Opinion, and conclude with some comments on methodologies used for damages assessment and environmental reparations, especially in the thorny form of lump-sum upfront compensation for environmental damage impacting present and future generations.

Read the rest of this entry…

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EJIL Debate. The Whaling case and the Duty to Cooperate: Responding to Professors Thirlway and d’Aspremont

Published on January 17, 2018        Author: 
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I am puzzled by the very terms of the debate between Professors Thirlway and d’Aspremont for several reasons. First, there is a considerable ambiguity in both Japan’s argument and the Court’s position as to the legal effects yielded by the IWC resolutions. Hence, it is inevitable to have a variation of interpretations. Second, I believe that the determination of the implications of the judgment should not be made dependent on an “objectivised” subjective intention of the Parties or the Court — a task which is no work for legal scholars anyway.

Yet, my main source of puzzlement lies elsewhere. While the focus of Thirlway and d’Aspremont’s debate is on the Court’s position on Article 31 of the VCLT with regards to Japan’s non-assertion to the resolution, I submit that the most ground-breaking part of the judgment is that the Court brought back the legal effect of the resolutions from the backdoor, that is via the concept of ‘the duty to cooperate’. In this post, I would like to draw the attention of the readers to the unique characteristic of the duty to cooperate referred to in the Whaling case, and the possible necessity for a new conceptual framework. In particular, I argue, neither the logic of sources nor the logic of interpretation can sufficiently explain what the Court did with the duty of to cooperate. Read the rest of this entry…

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EJIL Debate. A Reply to Thirlway: I am not Thinking From the Bench

Published on January 16, 2018        Author: 
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Being the object of a public rebuttal in an highly visible on-line blog platform by a prominent author like Professor Thirlway probably constitutes the most generous reward one can receive for “burning the midnight oil“. This also provides a fate for one’s work that is much better than the oblivion and indifference to which most of scholarly outputs are condemned in today’s academic pathologically prolific scene. This is why I could not be more grateful to Professor Thirlway for his comments on my article. Our repeated public debates these last years (for another example, see here) remind me that we share many areas of interest (sources, international dispute settlement, responsibility, etc) but also confirm that our views are simply — and thankfully — irreconcilable. In this short reaction, I want to respectfully show that our views diverge on the structure of legal argumentation related to sources and interpretation (1) as well as on the purpose of international legal scholarship (2).

Saving the Court through opposability

The reading of the judgment of the International Court of Justice (hereafter ICJ or the Court) in the Whaling in the Antarctic case which I have articulated in the European Journal of International Law and with which Professor Thirlway takes issue can be summarized as follows: the Court blurred the lines between the doctrine of sources and the doctrine of interpretation (and the modes of legal argumentation associated with each of them) by calibrating the interpretive value of IWC resolutions for the sake of interpreting the notion of ‘scientific approach’ in Article VIII of the Whaling Convention on the basis of Japan’s assent to those resolutions. Read the rest of this entry…

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