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Home Posts tagged "ICJ"

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…