Dispute Concerning Honduran Government Crisis Heads to the International Court of Justice (UPDATED)

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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

and Honduras

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!The Court already has before it the Kosovo Advisory Opinion which deals with questions of statehood and it may now be called on to decide on questions of what constitutes a government for international law purposes. This is excellent for those of us who teach these issues as there is little case law from international tribunals to guide thinking on these topics.

I find it interesting that the ICJ Press Release in this case does not, as would accord with usual practice,  say “Honduras institutes proceedings against Brazil” (see previous recent examples here and here). Instead, it says that Honduras has filed an “Application instituting proceedings . . . ” but then does not refer to that document an application but rather keeps referring to it simply as “the document”. Does this indicate some scepticism on the part of the court as to whether the document should be treated as an application? I think so. Brazil has already indicated  (see BBC report here) that it does not consider the interim government in Honduras as competent to bring the case and this may well indicate why the Court has been tentative in treating the document filed as an actual Application.

This would not be the first case where the ICJ was called upon to decide on whether an authority claiming to be the government of a State authorises the institution of proceedings in the ICJ and where the other side questions the authority of that “government” to represent the applicant State and to bring proceedings. A similar issue was raised in at the Jurisdiction and Admissibility state of the Genocide Convention Case (Bosnia Herzegovina v. Fed Rep. of Yugoslavia) 1996. In that case Yugoslavia argued at the Application was inadmissible because the person who claimed to be the  Bosnia President, and who granted the authorization to initiate the proceedings,  Mr. Alija Izetbegović, did not have the authority to do so. The Court stated (see here) that

The Court does not, in order to rule on that objection, have to consider the provisions of domestic law which were invoked in the course of the proceedings either in support of or in opposition to that objection. According to international law, there is no doubt that every Head of State is presumed to be able to act on behalf of the State in its international relations (see for example the Vienna Convention on the Law of Treaties, Art. 7, para. 2 (a)). As the Court found in its Order of 8 April 1993 (I.C.J. Reports 1993,  p. 11, para. 13), at the time of the filing of the Application, Mr. Izetbegović was recognized, in particular by the United Nations, as the Head of State of Bosnia and Herzegovina. Moreover, his status as Head of State continued subsequently to be recognized in many international bodies and several international agreements – including the Dayton-Paris Agreement – bear his signature. It follows that the second preliminary objection of Yugoslavia must also be rejected. (para. 44)

 So the Court appears to have answered the question whether the Bosnian President was indeed the President by reference to the recognition of him as such by the international community. If the Court were to follow this approach in the Honduran case, this would spell bad news for the current authorities in Honduras and would make their application to the ICJ self-defeating. This approach would also confirm the trend that Brad Roth points out in his posts.

Related EJIL:Talk! Links:

http://www.ejiltalk.org/the-honduran-crisis-and-the-turn-to-constitutional-legitimism-part-i-the-place-of-domestic-constitutional-orders-in-the-international-legal-framework/

http://www.ejiltalk.org/the-honduran-crisis-and-the-turn-to-constitutional-legitimism-part-ii-the-pitfalls-of-constitutional-legitimism/

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    Marko Milanovic says

    October 30, 2009

    Great post Dapo! I'd just like to add two further comments:

    First, if the case does advance to the merits, i.e. if the Court dismisses the eventual Brazilian preliminary objection that the current government of Honduras was not competent to lodge an application, the substantive issues that the Court will have to address will bear some resemblance to one of its earliest cases, Asylum (Colombia v. Peru).

    Second, an examination of the merits may again require the Court to examine the lawfulness of Zelaya's deposal. One could agree in principle with the current Honduran government that international law requires the state which has granted certain persons diplomatic asylum to prevent these persons from conducting 'manifestly illegal activities' from its diplomatic premises. But the question then is precisely whether Zelaya's activities are 'manifestly illegal', which again raises the issue of the lawfulness of his removal.

    All in all, this will really be a nice case to watch. And if Honduras actually requests interim measures, as it said it might, then we'll know the Court's answer to some of these questions sooner rather than later.

    Matthias Sant'Ana says

    October 30, 2009

    Thanks Dapo for the instructive remarks.

    I believe that if the political agreement that seems to have been signed really comes into effect, we might not see the case go any further.

    However, even if no political solution is found in the short term, I wonder whether the 1948 Pact of Bogotá can really ground the Court's jurisdiction in the present case. Although Article XXXI does indeed involve an acceptance of the compulsory jurisdiction, Article XXXII seems to suggest that the jurisdiction of the Court can only be exercised if, and when, all previous methods of peaceful settlement of disputes have failed. This, I suppose, would require that Honduras show that it attempted to negotiate, and failing that, that it attempted to establish an arbitration. Honduras not only failed to do both, but actually threatened to 'remove the embassy status' from the building and issued threats and ultimatums to the Brazilian government.

    I wonder whether the ICJ could override this procedural requirement and declare itself competent nonetheless.

    Tobias Thienel says

    October 30, 2009

    Dapo,

    Great post, thank you. I have amended my post at the Invisible College to take account of some of your statements (and of events).

    I have to say I'm a little less enthusiastic about the idea that the present government of Honduras had no right to act for the State and bring the case. Nor do I really think it probable that the Court will be eager to plunge into Honduran constitutional law. I imagine, however, that the constitutional crisis and international furore may well have some relevance to the substantive law of the case.

    Above all, however, I rather suspect - without making any predictions and with some regret - that today's events at Tegucigalpa have put a very early end to the case. We'll see.

    Matthias,

    Thank you for your point. I thought it had a lot going for it, but then I found, to my surprise, what the ICJ has made of Article XXXII. Your question, more or less precisely, came up for decision in Border and Transborder Armed Actions (Nicaragua v Honduras), ICJ Reports (1988) 69. Somewhat ironically, it was Honduras which relied on Article XXXII as imposing conditions on the grant of jurisdiction by Article XXXI.

    Here's what the Court said on the relationship between Articles XXXI and XXXII (in its conclusion on the point, at pp 89-90, para 47):

    "In short, Articles XXXI and XXXII provide for two distinct ways by which access may be had to the Court. The first relates to cases in which the Court can be seised directly and the second to those in which the parties initially resort to conciliation.
    In the present case, Nicaragua has relied upon Article XXXI, not Article XXXII. It is accordingly not pertinent whether the dispute submitted to the Court has previously been the subject of an attempted conciliation, nor what interpretation is given to Article XXXII in other respects, in particular as regards the nature and the subject-matter of the disputes to which that text applies. It is sufficient for the Court to find that the second objection put forward by Honduras is based upon an incorrect interpretation of that Article and, for that reason, cannot be accepted."

    Article XXXII, in other words, is (apparently) not a condition applicable to jurisdiction under Article XXXI, but establishes a separate title of jurisdiction. I admit I would have found this more credible if the Court had deigned to explain to which different categories of cases the two articles apply. But however that may be, the Court has put Article XXXII out of the picture for our present purposes.

    I think you are right to describe this as the Court 'overriding' a procedural requirement. That, of course, is what the Court has also, by different means, done to similar clauses (which it has treated as conditions to the grant of jurisdiction) in the Tehran Hostages and Oil Platforms cases and in the recent (provisional measures phase of the) case of Georgia v Russia.

    Matthias Sant'Ana says

    October 31, 2009

    Thank you, Tobias, for clarifying the point on Article XXXII of the Pact of Bogotá. I found Judge Oda's separate opinion very useful too, as it raises interesting questions as to the overall soundness of the Court's conclusion on the point. The 1988 Nicaragua vs. Honduras case still strikes me as a counter-intuitive reading of the Pact of Bogotá: there seems little need to draft and ratify a regional treaty that authorizes states to either use mediation and arbitration, or submit the case to the ICJ. This is -- and already was in 1948 -- the case under general international law. If Article XXXII sets no 'procedural requirement' for the seisin of the Court, then I don't really see its usefulness

    Regardless, it seems that other states have appealled to Article XXXI with little consideration of Article XXXII: the other recent case is the 2008 Aerial Herbicide Spraying Case (Ecuador vs. Colombia), still in its initial stages. Here, Ecuador makes no attempt to prove that it has used any other means of peaceful dispute settlement, prior to referring the case to the ICJ.