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!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: