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

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: 
Facebook
GOOGLE
https://www.ejiltalk.org/category/international-tribunals/international-court-of-justice
LINKEDIN

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…

Print Friendly, PDF & Email
 

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

Published on January 17, 2018        Author: 
Facebook
GOOGLE
https://www.ejiltalk.org/category/international-tribunals/international-court-of-justice
LINKEDIN

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…

Print Friendly, PDF & Email
 

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

Published on January 16, 2018        Author: 
Facebook
GOOGLE
https://www.ejiltalk.org/category/international-tribunals/international-court-of-justice
LINKEDIN

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…

Print Friendly, PDF & Email
 

EJIL Debate: A whale or a weasel? The Antarctic Whaling case, and a reply to Professor d’Aspremont (Part II)

Published on January 16, 2018        Author: 
Facebook
GOOGLE
https://www.ejiltalk.org/category/international-tribunals/international-court-of-justice
LINKEDIN

Part II of a two-part post in the discussion of Jean d’Aspermont’s article, ‘The International Court of Justice, the Whales, and the Blurring of the Lines between Sources and Interpretation‘.

 

What did Japan say – and what did it not say? [Cont.]

[…]

What then does this single reference given tell us? What was Japan’s argument?  The text preceding the footnote states that in its Counter-Memorial Japan argues that resolutions of the kind under consideration ‘are not binding, and, therefore, irrelevant for the interpretation of Article VIII’ (d’Aspremont, p.1016). The Chapter of the Counter-Memorial quoted is however more limited: it is addressed to refutation of Australia’s argument that the resolutions rank as ‘subsequent agreement’ or ‘subsequent practice of the parties’ for purposes of Article 12 of the Vienna Convention on the Law of Treaties (an argument which was, as already noted, to be rejected by the Court). Japan’s argument on the point is in no way novel; and the question of Japan’s consent is not central, and not stressed. It is merely present in the reference to the need, under the terms of Article VI of the Whaling Convention, for consensus, if a resolution is to be anything more than a non-binding recommendation. It is hard to see any invocation of the doctrine of sources here.

Nor is there anything recognisable as reliance on sources in the oral argument of Japan, or even any emphasis on the lack of Japan’s lack of assent. In that argument the IWC resolutions were first dismissed (rather casually), not on the basis of lack of assent, but on the grounds that they were obsolete or superseded (see Boyle in CR 2013/15, pp. 54-55). Emphasis was laid on the freedom of a State to disregard resolutions of international bodies that merely recommend (see Pellet in CR 2013/16, pp.53-54, citing Judge Lauterpacht in Voting Procedure [1955] ICJ Rep 114-115), but with no reference to the lack of Japan’s consent as the reason for purely recommendatory status. Read the rest of this entry…

Print Friendly, PDF & Email
 

EJIL Debate: A whale or a weasel? The Antarctic Whaling case, and a reply to Professor d’Aspremont (Part I)

Published on January 15, 2018        Author: 
Facebook
GOOGLE
https://www.ejiltalk.org/category/international-tribunals/international-court-of-justice
LINKEDIN

Part I of a two-part post opening the discussion of Jean d’Aspermont’s article, ‘The International Court of Justice, the Whales, and the Blurring of the Lines between Sources and Interpretation‘.

The article by Professor Jean d’Aspremont, ‘The International Court of Justice, the Whales, and the Blurring of the Lines between Sources and Interpretation‘, is directed to the decision of the International Court of Justice in the case of Whaling in the Antarctic (Australia v. Japan; New Zealand intervening) but is, in a number of ways, an unexpected commentary on that decision. The author concentrates his attention on what would seem to be a rather minor aspect of the controversy between the parties, and leaves aside all other elements of the case. He then builds on that point, an analysis of the parties’ arguments, and of the Court’s conclusions on the point, which, one suspects, both the parties and the Court would have great difficulty in recognizing as their own. The result is that Professor d’Aspremont appears to be criticising a wholly suppositious thesis, a chimera of his own construction, rather than the judgment actually delivered.

This criticism centres around what in the title of the article is called a ‘blurring of the lines between sources and interpretation’. In fuller terms, the distinction is between, in the first place, the ‘doctrine of sources’, which is ‘what allows norms and standards to be formally anchored in a legal order and generate therein the highest form of legal effect – that is, bindingness’ (p.1028). Against this, Professor d’Aspremont identifies a ‘doctrine of interpretation’: ‘legal relations between subjects of an international order can also be affected by interpretative effects’, which result from ‘an act of interpretation that is constrained not by the doctrine of sources but rather a doctrine of interpretation’(ibid.). This formulation, apparently unobjectionable, subsequently proves, however, to generate unnecessary problems, to be examined below. Read the rest of this entry…

Print Friendly, PDF & Email
 

EJIL Debate: Jean d’Aspremont’s Article on the Blurring of Interpretation and Sources in the ICJ Case on Whaling in the Antarctic

Published on January 15, 2018        Author: 
Facebook
GOOGLE
https://www.ejiltalk.org/category/international-tribunals/international-court-of-justice
LINKEDIN

The blog is happy to announce that over the next few days, we will host a discussion of Jean d’Aspremont’s article, ‘The International Court of Justice, the Whales, and the Blurring of the Lines between Sources and Interpretation‘. The debate will open this afternoon with Professor Hugh Thirlway’s reaction to  d’Aspremont’s article. We will continue the discussion tomorrow with Jean d’Aspremont’s response. On Wednesday, Maiko Meguro will bring the debate to a close with her reaction to the argumentative framework of ‘logic of interpretation’ and ‘logic of sources’ put forward by Professor d’Aspremont in his EJIL article and discussed by Hugh Thirlway in his rebuttal.

d’Aspremont’s article, which was published in the European Journal of International Law in November 2017, argues that the idea that the doctrine of sources enjoys a monopoly on the tracing of bindingness and does not directly constrain the interpretation of those standards and norms that it validates has been seriously eroded by the International Court of Justice in its 31 March 2014 judgment concerning Whaling in the Antarctic. d’Aspremont contends that the Court comes very close to calibrating the interpretive effects of the resolutions of the International Whaling Commission through the doctrine of sources. He explains, how this blurring between sources and interpretation is most unsettling given the efforts that the Court had invested, over the years, in consolidating two distinct doctrines – the doctrine of sources and the doctrine of interpretation.

We are grateful to all of the participants for agreeing to have this discussion here. Readers are invited to join in- comments will of course be open on all posts.

Print Friendly, PDF & Email
 

ICJ Elections 2017: UN General Assembly and Security Council Elect Four Judges to the ICJ But fail to Agree on a Fifth, yet again! + Trivia Question

Published on November 11, 2017        Author: 
Facebook
GOOGLE
https://www.ejiltalk.org/category/international-tribunals/international-court-of-justice
LINKEDIN

On Thursday (Nov. 9), the United Nations General Assembly and Security Council elected four judges to the International Court of Justice (see UN Press Releases here and here). Judges Ronny Abraham (France), the incumbent President; Abdulqawi Yusuf (Somalia), the incumbent Vice-President; and Antônio Augusto Cançado Trindade (Brazil) were all re-elected. Nawaf Salam who is currently the Permanent Representative of Lebanon to the United Nations was also elected to the Court for the first time. They were elected in accordance with Articles 4 and 8 of the Statute of the ICJ which stipulate that judges are to be elected by the General Assembly and the Security Council meeting separately but concurrently. For a candidate to be elected each judge has to obtain an absolute majority in each of those organs, meaning that they need 8 votes in favour in the Security Council and, in 2017, 97 votes in the General Assembly. There are regular elections to the ICJ every three years, with five vacancies each time around. In the election held on Thursday, the General Assembly (GA) and the Security Council (SC) have, thus far, been unable to agree on the fifth judge to be elected to the Court, and voting has been suspended until Monday November 13. This scenario of the GA and SC being unable to agree in a single “meeting” (a term which has a special meaning for this purpose) on the list of Judges that are elected to the Court is relatively rare in the history of elections to the ICJ. However, that scenario has now occurred for a third successive time (after the events in 2011 and 2014 which I describe in the previous posts here and here).

This 2017 election has been particularly remarkable for a number of reasons. There were only six candidates for the five positions. However, and this is rare, all five judges whose terms were expiring had been nominated for re-election. What is perhaps most remarkable about this election, at least thus far, is that Judge Christopher Greenwood, the judge of British nationality, was not re-elected in the first “meeting”. The two remaining candidates for re-election, who must now fight it out on Monday are Judge Greenwood and Judge Bhandari (India), both sitting judges on the Court. Were Judge Greenwood not to be re-elected on Monday this would be a very significant break from the past with regard to the composition of the ICJ. Read the rest of this entry…

Print Friendly, PDF & Email
 

Populist International Law? The Suspended Independence and the Normative Value of the Referendum on Catalonia

Published on October 12, 2017        Author: 
Facebook
GOOGLE
https://www.ejiltalk.org/category/international-tribunals/international-court-of-justice
LINKEDIN

In his speech before the Catalan regional parliament on 10 October 2017, the Catalan President Carles Puigdemont suspended a declaration of independence but stated that the referendum of 1st October gave the Catalans a mandate for creating a sovereign state. This post examines whether this assertion is borne out by international law. I submit that neither the Catalans and their leaders nor the central government act in an international law-free zone.

A declaration of independence would not violate international law

The International Court of Justice, in its Kosovo opinion of 2010, found that a unilateral declaration of independence does “not violate general international law” (para. 122) ─ if such a declaration is not “connected with the unlawful use of force or other egregious violations of norms of general international law, in particular those of a peremptory character (jus cogens)” (para. 81; see also paras 84, 119-121 on non-violation). The ICJ in that Opinion inverted the legal question placed before it (which had been whether the declaration of independence was “in accordance with international law” (para. 1)). The Court had also shied away from saying anything meaningful on secession (as opposed to the speech act of declaring independence). In result, the Advisory Opinion came out as a parsimonious if not meagre restatement of the law.

Disproportionate use of force (police and military) is prohibited by international law

However meek, the Kosovo Advisory Opinion is relevant for Catalonia also with regard to the prohibition on the use of force. The Court here said that “unlawful use of force” would taint a declaration of independence and make it violative of international law (para. 81), but did not say when such resort to force would indeed be “unlawful”. Also, the ICJ did not say whose use of force although it probably had the separatists themselves in mind. Read the rest of this entry…

Print Friendly, PDF & Email
 

New EJIL:Live! Interview with Niels Petersen on his Article “The International Court of Justice and the Judicial Politics of Identifying Customary International Law”

Published on September 7, 2017        Author: 
Facebook
GOOGLE
https://www.ejiltalk.org/category/international-tribunals/international-court-of-justice
LINKEDIN

In this latest episode of EJIL: Live! the Editor-in-Chief of the Journal, Professor Joseph Weiler, speaks with Professor Niels Petersen of the University of Münster, whose article, “The International Court of Justice and the Judicial Politics of Identifying Customary International Law”, appears in Volume 28, Issue 2 of the journal.

In the article, Professor Petersen explores International Court of Justice decisions confirming the existence of customary international law.  The abstract of the article states that:

It is often observed in the literature on customary international law that the identification practice of the International Court of Justice (ICJ) for customary norms deviates from the traditional definition of customary law in Article 38 (1) lit. b of the ICJ Statute. However, while there are many normative and descriptive accounts on customary law and the Court’s practice, few studies try to explain the jurisprudence of the ICJ. This study aims at closing this gap. I argue that the ICJ’s argumentation pattern is due to the institutional constraints that the Court faces. In order for its decisions to be accepted, it has to signal impartiality through its reasoning. However, the analysis of state practice necessarily entails the selection of particular instances of practice, which could tarnish the image of an impartial court. In contrast, if the Court resorts to the consent of the parties or widely accepted international documents, it signals impartiality.

The EJIL:Live! discussion focuses on the principal empirical findings of the article, and Petersen’s novel conceptualization of those arguments in terms of “judicial politics”, explicable by the institutional constraints that the Court faces. This conversation offers a reflection on how this assessment of the jurisprudence could alter scholars’ normative conceptions of the Court’s decisions, particularly in regards to customary international law.

 

Read the rest of this entry…

Print Friendly, PDF & Email
 
Comments Off on New EJIL:Live! Interview with Niels Petersen on his Article “The International Court of Justice and the Judicial Politics of Identifying Customary International Law”

Reopening Proceedings for Reparations and Abuse of Process at the International Court of Justice

Published on August 16, 2017        Author: 
Facebook
GOOGLE
https://www.ejiltalk.org/category/international-tribunals/international-court-of-justice
LINKEDIN

On 28 July 2017, Nicaragua made the rather surprising announcement that it would revive its claim for US$17 billion in compensation against the United States. To recall, in its 1986 Merits Judgment in Nicaragua v. United States, the International Court of Justice declared that the United States was “under an obligation to make reparation to the Republic of Nicaragua for all injury caused to Nicaragua” arising from “breaches of obligations under customary international law” [Dispositif, para. 292(13)] and for “breaches of the Treaty of Friendship, Commerce and Navigation between the parties…on 21 January 1956” [Dispositif, para. 292 (14)]. The Court further decided that “the form and amount of reparation, failing agreement between the Parties, will be settled by the Court, and reserves for this purpose the subsequent procedure in the case”. [Dispositif, para. 292(15)]. After the Court issued an Order fixing time limits for the filing of pleadings on the matter and form of reparation, Nicaragua thereafter informed the Court in 1991 that it did not wish to continue the proceedings. One would have thought that Nicaragua’s discontinuance of the proceedings somehow ensured the finality of the Court’s Judgment on the Merits and left the matter of reparations to political negotiations between the parties. However, as Nicaragua’s recently stated position appears to suggest, there is no time limit for reviving a judicial determination of the form and amount of reparations claims, even if it does not appear that Nicaragua took any steps to pursue its compensation claim against the United States for over thirty years.  The Court’s recent practice likewise appears to lend support to the view that reparations claims can feasibly reopen ICJ proceedings at any point in time, if the Court does not itself fix a time limit to determine when parties’ negotiations on reparations have failed. In its Order of 1 July 2015, the Court in Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v. Uganda), the Court observed that since the parties therein had been unable to reach a political settlement since its Judgment of 19 December 2005, it would reopen proceedings as requested by the Democratic Republic of Congo.

Read the rest of this entry…

Print Friendly, PDF & Email