Statehood

IV. ICJ Cases Relating to Sovereignty, Sovereign Equality, Non-Intervention, Statehood, and Consular and Diplomatic Relations (1984 – 2017)

This is the fourth in a series of blog posts, categorizing ICJ decisions as it relates to a particular theme, using the summaries provided in the ICJ website. Other themes will include, decisions on maritime time and territorial boundaries, on the use of force, cases where the ICJ refused to exercise its jurisdiction, or where proceedings were discontinued by parties. These summaries are not intended to be comprehensive. It is intended to give an overview on the ICJ’s deliberations in that case, as it relates to the topic. The list is not yet comprehensive, and other cases will continue to be added.

1. Questions relating to the Seizure and Detention of Certain Documents and Data (Timor-Leste v. Australia) Summary of Order 3 March 2014

Excerpts of the summary provided in the ICJ website:

On 17 December 2013 Timor-Leste instituted proceedings against Australia with regard to the seizure and subsequent detention “by Agents of Australia of documents, data and other property which belongs to Timor-Leste and/or which Timor-Leste has the right to protect under international law”. Timor-Leste contends that these items were seized in the offices of one of its legal advisers… allegedly under a warrant (…)

Timor-Leste claims that the items seized include documents and data containing correspondence between the Government of Timor-Leste and its legal advisers relating to a pending arbitration under the 2002 Timor Sea Treaty between Timor-Leste and Australia (…)

On 17 December 2013 Timor-Leste also filed a request for the indication of provisions measures in order to protect its rights and to prevent the use of the seized documents and data by Australia against its interests and rights in the pending arbitration and with regard to other matters relating to the Timor Sea and its resources (…)

Those hearings did not take place, however, the Parties having requested the Court, by a joint letter of 1 September 2014, “to adjourn the hearing . . . in order to enable them to seek an amicable settlement”.

Several months later, in a letter of 25 March 2015, Australia indicated that it “wished to return the materials removed from the premises of Collaery Lawyers on 3 December 2013, which are the subject of the present proceedings”….

By an Order of 22 April 2015, the Court authorized the return of the documents and data in question, and any copies thereof.

(NB: In this Order, the held that: “the right to communicate with its counsel and lawyers in a confidential manner with regard to issues forming the subject matter of pending arbitral proceedings or negotiations is derived from the principle of sovereign equality of States, reflected in article 2(1) of the UN Charter and must be preserved when States are involved in a peaceful settlement of a dispute.)

By a letter of 2 June 2015…Timor-Leste informed the Court that it wished to discontinue the proceedings (following the return of the documents and data) (…)”

2.  Territorial and Maritime Dispute (Nicaragua v. Colombia) Judgment of 19 November 2012

Excerpts of the summary provided in the ICJ website:

On 6 December 2001, the Republic of Nicaragua filed an Application instituting proceedings against the Republic of Colombia in respect of a dispute concerning “a group of related legal issues subsisting” between the two States “concerning title to territory and maritime delimitation” (…)

The Court then observed that, under the terms of the 1928 Treaty concerning Territorial Questions at Issue between Colombia and Nicaragua, Colombia not only had sovereignty over the islands of San Andrés, Providencia and Santa Catalina, but also over other islands, islets and reefs “forming part” of the San Andrés Archipelago. Thus, in order to address the question of sovereignty, the Court first needed to ascertain what constituted the San Andrés Archipelago.

It concluded, however, that neither the 1928 Treaty nor the historical documents conclusively established the composition of that Archipelago. The Court therefore examined the arguments and evidence not based on the composition of the Archipelago under the 1928 Treaty.

It found that neither Nicaragua nor Colombia had established that it had title to the disputed maritime features by virtue of uti possidetis juris (the principle that, upon independence, new States inherit the territories and boundaries of the former colonial provinces), because nothing clearly indicated whether these features were attributed to the colonial provinces of Nicaragua or of Colombia. The Court then considered whether sovereignty could be established on the basis of State acts manifesting a display of authority on a given territory (effectivités).

It regarded it as having been established that for many decades Colombia had continuously and consistently acted à titre de souverain in respect of the maritime features in dispute. This exercise of sovereign authority had been public and there was no evidence that it had met with any protest from Nicaragua prior to 1969, when the dispute had crystallized.

Moreover, the evidence of Colombia’s acts of administration with respect to the islands was in contrast to the absence of any evidence of acts à titre de souverain on the part of Nicaragua. The Court also noted that, while not being evidence of sovereignty, Nicaragua’s conduct with regard to the maritime features in dispute, the practice of third States and maps afforded some support to Colombia’s claim.

The Court concluded that Colombia, and not Nicaragua, had sovereignty over the islands at Alburquerque, Bajo Nuevo, East-Southeast Cays, Quitasueño, Roncador, Serrana and Serranilla (….)

3. Jurisdictional Immunities of the State (Germany v. Italy: Greece intervening) Judgement 03 February 2012

Italian Courts permitted civil claims to be brought against Germany based on violations of international humanitarian law committed by Germany from 1943 – 1945 against Italian citizens. Italian courts also permitted the enforcement of a judgement of the Greek courts in Italy against Germany and took measures of constraint against a German property in Italy. The question before the Court was whether Italy’s actions violated the customary international law right of jurisdictional immunity of Germany. The Court held that Italy violated its obligation to respect Germany’s immunity under international law by allowing civil claims to be brought against Germany based on violations of international humanitarian law committed by the German Reich between 1943 and 1945, by declaring enforceable in Italy decisions of Greek courts and by taking measures of constraint against German property in Italy. The Court requested Italy to enact  legislation, or resort to other methods of its choosing, to ensure that the decisions of its courts and those of other judicial authorities infringing the immunity which Germany enjoys under international law cease to have effect. For summary see blog post in this website here.

For summary provided in the ICJ website click here.

4. Accordance with international law of the unilateral declaration of independence in respect of Kosovo – Request for Advisory Opinion  Advisory Opinion 22 July 2010

Excerpts of the summary provided in the ICJ website:

On 8 October 2008, the General Assembly decided to ask the Court to render an advisory opinion on the following question : “Is the unilateral declaration of independence by the Provisional Institutions of Self-Government of Kosovo in accordance with international law ?

(…) In its Advisory Opinion delivered on 22 July 2010, the Court concluded that “the declaration of independence of Kosovo adopted on 17 February 2008 did not violate international law” (…) It also concluded that it was not required by the question posed to decide whether international law conferred a positive entitlement upon Kosovo to declare independence ; rather, it had to determine whether a rule of international law prohibited such a declaration.

The Court first sought to determine whether the declaration of independence was in accordance with general international law. It noted that State practice during the eighteenth, nineteenth and early twentieth centuries “points clearly to the conclusion that international law contained no prohibition of declarations of independence”. In particular, the Court concluded that “the scope of the principle of territorial integrity is confined to the sphere of relations between States”. It also determined that no general prohibition of declarations of independence could be deduced from Security Council resolutions condemning other declarations of independence, because those declarations of independence had been made in the context of an unlawful use of force or a violation of a jus cogens norm. The Court thus concluded that the declaration of independence in respect of Kosovo had not violated general international law.

The Court then considered whether the declaration of independence was in accordance with Security Council resolution 1244 of 10 June 1999. It concluded that the object and purpose of that resolution was to establish “a temporary, exceptional legal régime which . . . superseded the Serbian legal order . . . on an interim basis”. It then examined the identity of the authors of the declaration of independence. An analysis of the content and form of the declaration, and of the context in which it was made, led the Court to conclude that its authors were not the Provisional Institutions of Self-Government, but rather “persons who acted together in their capacity as representatives of the people of Kosovo outside the framework of the interim administration”.

The Court concluded that the declaration of independence did not violate resolution 1244 for two reasons. First, it emphasized the fact that the two instruments “operate on a different level” : resolution 1244 was silent on the final status of Kosovo, whereas the declaration of independence was an attempt to finally determine that status.

Second, it noted that resolution 1244 imposed only very limited obligations on non-State actors, none of which entailed any prohibition of a declaration of independence.

Finally, in view of its conclusion that the declaration of independence did not emanate from the Provisional Institutions of Self-Government of Kosovo, the Court held that its authors were not bound by the Constitutional Framework established under resolution 1244, and thus that the declaration of independence did not violate that framework (the Court had previously found that “the reference to the “Provisional Institutions of Self-Government of Kosovo” in the question put by the General Assembly did not prevent it from deciding for itself whether the declaration of independence had been promulgated by that body or another entity.”)

Consequently, the Court concluded that the adoption of the declaration of independence had not violated any applicable rule of international law.

On 9 September 2010, the General Assembly adopted a resolution in which it acknowledged the content of the advisory opinion of the Court (…).”

5. Sovereignty over Pedra Branca/Pulau Batu Puteh, Middle Rocks and South Ledge (Malaysia/Singapore) Judgment of 23 May 2008

Excerpts of the summary provided in the ICJ website:

“On 24 July 2003, Malaysia and Singapore jointly seised the Court of a dispute between them by notification of a Special Agreement signed on 6 February 2003 and which entered into force on 9 May 2003. Under the terms of that Special Agreement, the Parties requested the Court to “determine whether sovereignty over : (a) Pedra Branca/Pulau Batu Puteh ; (b) Middle Rocks ; and (c) South Ledge belongs to Malaysia or the Republic of Singapore”. They agreed in advance “to accept the Judgment of the Court . . . as final and binding upon them”.

In that Judgment, the Court first indicated that the Sultanate of Johor (predecessor of Malaysia) had original title to Pedra Branca/Pulau Batu Puteh, a granite island on which Horsburgh lighthouse stands. It concluded, however, that, when the dispute crystallized (1980), title had passed to Singapore, as attested to by the conduct of the Parties (in particular certain acts performed by Singapore à titre de souverain and the failure of Malaysia to react to the conduct of Singapore). The Court consequently awarded sovereignty over Pedra Branca/Pulau Batu Puteh to Singapore. As for Middle Rocks, a maritime feature consisting of several rocks permanently above water, the Court observed that the particular circumstances which had led it to find that sovereignty over Pedra Branca/Pulau Batu Puteh rested with Singapore clearly did not apply to Middle Rocks. It therefore found that Malaysia, as the successor to the Sultan of Johor, should be considered to have retained original title to Middle Rocks. Finally, with respect to the low-tide elevation South Ledge, the Court noted that it fell within the apparently overlapping territorial waters generated by Pedra Branca/Pulau Batu Puteh and by Middle Rocks. Recalling that it had not been mandated by the Parties to delimit their territorial waters, the Court concluded that sovereignty over South Ledge belongs to the State in whose territorial waters it lies.”

6. Frontier Dispute (Benin/Niger) Judgment, 12 July 2005

Excerpts of the summary provided in the ICJ website:

“On 3 May 2002, Benin and Niger, by joint notification of a Special Agreement signed on 15 June 2001 at Cotonou and which entered into force on 11 April 2002, seised the Court of a dispute concerning “the definitive delimitation of the whole boundary between them”. Under the terms of Article 1 of that Special Agreement, the Parties agreed to submit their frontier dispute to a Chamber of the Court, formed pursuant to Article 26, paragraph 2, of the Statute (…)

(…The Camber) stated that this (the applicable law) included the principle of the intangibility of the boundaries inherited from colonization, or the principle of uti possidetis juris, whose “primary aim is . . . securing respect for the territorial boundaries at the moment when independence is achieved”. The Chamber found that, on the basis of this principle, it had to determine in the case the boundary that had been inherited from the French administration. It noted that “the Parties agreed that the dates to be taken into account for this purpose were those of their respective independence, namely 1 and 3 August 1960”.

The Chamber then considered the course of the boundary in the River Niger sector. It first examined the various regulative or administrative acts invoked by the Parties in support of their respective claims and concluded that “neither of the Parties has succeeded in providing evidence of title on the basis of [those] acts during the colonial period”. In accordance with the principle that, where no legal title exists, the effectivités “must invariably be taken into consideration”, the Chamber then proceeded to examine the evidence presented by the Parties regarding the effective exercise of authority on the ground during the colonial period, in order to determine the course of the boundary in the River Niger sector and to indicate to which of the two States each of the islands in the river belonged, in particular the island of Lété. (…)”

(On more information relating to the boundary determination, click here.)

7. Avena and Other Mexican Nationals (Mexico v. United States of America) Judgment, 31 March 2004

Excerpts of the summary provided in the ICJ website:

” On 9 January 2003, Mexico brought a case against the United States of America in a dispute concerning alleged violations of Articles 5 and 36 of the Vienna Convention on Consular Relations of 24 April 1963 with respect to 54 Mexican nationals (which was later amended to 52) who had been sentenced to death in certain states of the United States. At the same time as its Application, Mexico also submitted a request for the indication of provisional measures, among other things so that the United States would take all measures necessary to ensure that no Mexican national was executed and no action was taken that might prejudice the rights of Mexico or its nationals with regard to any decision the Court might render on the merits of the case. (The Court held that the United States should take all measures to ensure that the three individuals were not executed pending final judgement).

Ruling on the merits of the case, (…) the Court held that the United States was under an obligation to provide consular information pursuant to Article 36, paragraph 1 (b), of the Vienna Convention in respect of all 52 Mexican nationals. Regarding the meaning to be given to the phrase “without delay” in Article 36 (1) (b), the Court further held that there is an obligation to provide consular information as soon as it is realized that the arrested person is a foreign national, or that there are grounds for thinking that he is probably a foreign national.

The Court found that, in all of the cases except one, the United States had violated its obligation to provide the required consular information. Taking note of the interrelated nature of the three subparagraphs (a), (b) and (c) of paragraph 1 of Article 36 of the Vienna Convention, the Court then went on to find that the United States had, in 49 cases, also violated the obligation to enable Mexican consular officers to communicate with, have access to and visit their nationals and, in 34 cases, to arrange for their legal representation.

In relation to Mexico’s arguments concerning paragraph 2 of Article 36 and the right of its nationals to effective review and reconsideration of convictions and sentences impaired by a violation of Article 36 (1), the Court found that, in view of its failure to revise the procedural default rule since the Court’s decision in the LaGrand case, the United States had in three cases violated paragraph 2 of Article 36, although the possibility of judicial re-examination was still open in the 49 other cases.

In regard to the legal consequences of the proven violations of Article 36 and to Mexico’s requests for restitutio in integrum, through the partial or total annulment of convictions and sentences, the Court pointed out that what international law required was reparation in an adequate form, which in this case meant review and reconsideration by United States courts of the Mexican nationals’ convictions and sentences. The Court considered that the choice of means for review and reconsideration should be left to the United States, but that it was to be carried out by taking account of the violation of rights under the Vienna Convention. After recalling that the process of review and reconsideration should occur in the context of judicial proceedings, the Court stated that the executive clemency process was not sufficient in itself to serve that purpose, although appropriate clemency procedures could supplement judicial review and reconsideration. Contrary to Mexico’s claims, the Court found no evidence of a regular and continuing pattern of breaches of Article 36 by the United States. The Court moreover recognized the efforts of the United States to encourage compliance with the Vienna Convention, and took the view that that commitment provided a sufficient guarantee and assurance of non-repetition as requested by Mexico.

The Court further observed that, while the present case concerned only Mexican nationals, that should not be taken to imply that its conclusions did not apply to other foreign nationals finding themselves in similar situations in the United States. Finally, the Court recalled that the United States had violated paragraphs 1 and 2 of Article 36 in the case of the three Mexican nationals concerned by the Order of 5 February 2003 indicating provisional measures, and that no review and reconsideration of conviction and sentence had been carried out in those cases. The Court considered that it was therefore for the United States to find an appropriate remedy having the nature of review and reconsideration according to the criteria indicated in the Judgment.”

8. Sovereignty over Pulau Ligitan and Pulau Sipadan (Indonesia/Malaysia) Judgment, 17 December 2002

Excerpts of the summary provided in the ICJ website:

“On 2 November 1998, the Republic of Indonesia and Malaysia jointly notified the Court of a Special Agreement between the two States (…under which) they requested the Court to determine (…) to which of the two States sovereignty over Pulau Ligitan and Pulau Sipadan belonged (…)”

(NB: In its judgment, the Court sought to determine whether Indonesia or Malaysia had a treaty-based title, obtained title by way of  succession, by way of transfer, or by virtue of the effectivités cited by them (i.e. whether claims to sovereignty were based on activities evidencing an actual, continued exercise of authority over the islands, i.e., the intention and will to act as sovereign). The Court held that title could not be established by means other than effectivités.)

“The Court noted that: “the activities relied upon by Malaysia . . . [we]re modest in number but . . . they [we]re diverse in character and include[d] legislative, administrative and quasi-judicial acts. They cover[ed] a considerable period of time and show[ed] a pattern revealing an intention to exercise State functions in respect of the two islands in the context of the administration of a wider range of islands.” The Court further stated that “at the time when these activities were carried out, neither Indonesia nor its predecessor, the Netherlands, [had] ever expressed its disagreement or protest”. The Court concluded, on the basis of the above-mentioned effectivités, that sovereignty over Pulau Ligitan and Pulau Sipadan belonged to Malaysia.”

Related articles can be found here (AMJIL)and here (ICLQ).

9. Land and Maritime Boundary between Cameroon and Nigeria (Cameroon v. Nigeria: Equatorial Guinea intervening) Judgment, 10 October 2002

On 29 March 1994, Cameroon initiated proceedings against Nigeria with respect to the question of sovereignty over the Bakassi Peninsula, and requested the Court to determine the land and maritime frontier between the two States. The Court’s jurisdiction was established based on compulsory jurisdiction.

Excerpts of the summary provided in the ICJ website:

“(…) In its Application, Cameroon referred to “an aggression by the Federal Republic of Nigeria, whose troops are occupying several Cameroonian localities on the Bakassi Peninsula”, and asked the Court, inter alia, to adjudge and declare that sovereignty over the Peninsula of Bakassi was Cameroonian, by virtue of international law, and that Nigeria had violated and was violating the fundamental principle of respect for frontiers inherited from colonization (uti possidetis juris), as well as other rules of conventional and customary international law, and that Nigeria’s international responsibility was involved. Cameroon also requested the Court to proceed to prolong the course of its maritime boundary with Nigeria up to the limit of the maritime zone which international law placed under their respective jurisdictions.

On 6 June 1994, Cameroon filed in the Registry an Additional Application “for the purpose of extending the subject of the dispute” to a further dispute described as relating essentially “to the question of sovereignty over part of the territory of Cameroon in the area of Lake Chad”, while also requesting the Court to specify definitively the frontier between Cameroon and Nigeria from Lake Chad to the sea. That Application was treated as an amendment to the initial Application. After Nigeria had raised certain preliminary objections, Cameroon presented, on 1 May 1996, a written statement of its observations and submissions relating thereto, in accordance with an Order of the President dated 10 January 1996. Moreover, on 12 February 1996, Cameroon, referring to the “grave incidents which [had] taken place between the . . . forces [of the Parties] in the Bakassi Peninsula since . . . 3 February 1996”, asked the Court to indicate provisional measures. By an Order dated 15 March 1996, the Court indicated a number of provisional measures aimed principally at putting an end to the hostilities (…).

( By its Judgment of 11 June 1998, the decided on the preliminary objections of parties. In October 1998, Nicaragua initiated a request for the interpretation of this judgement, which was rejected by the Court.)

On 30 June 1999, the Republic of Equatorial Guinea filed an Application for permission to intervene in the case (which the Court allowed) (…_

In its Judgment of 10 October 2002, the Court determined the course of the boundary,between Cameroon and Nigeria. (See here for a summary) (…)

In its Judgment the Court requested Nigeria, expeditiously and without condition, to withdraw its administration and military or police forces from the area of Lake Chad falling within Cameroonian sovereignty and from the Bakassi Peninsula. It also requested Cameroon expeditiously and without condition to withdraw any administration or military or police forces which might be present along the land boundary from Lake Chad to the Bakassi Peninsula on territories which, pursuant to the Judgment, fell within the sovereignty of Nigeria. The latter had the same obligation in regard to territories in that area which fell within the sovereignty of Cameroon. The Court took note of Cameroon’s undertaking, given at the hearings, to “continue to afford protection to Nigerians living in the [Bakassi] peninsula and in the Lake Chad area”. Finally, the Court rejected Cameroon’s submissions regarding the State responsibility of Nigeria, as well as Nigeria’s counter-claims.”

10. LaGrand (Germany v. United States of America) Judgment, 27 June 2001

On 2 March 1999, Germany initiated proceedings against the United States of America in a dispute concerning alleged violations of the Vienna Convention on Consular Relations of 24 April 1963.

Summary provided in the ICJ website:

” (…) Germany stated that, in 1982, the authorities of the State of Arizona had detained two German nationals, Karl and Walter LaGrand, who were tried and sentenced to death without having been informed of their rights, as is required under Article 36, paragraph 1 (b), of the Vienna Convention. Germany also alleged that the failure to provide the required notification precluded Germany from protecting its nationals’ interest provided for by Articles 5 and 36 of the Vienna Convention at both the trial and the appeal level in the United States courts. Germany asserted that although the two nationals, finally with the assistance of German consular officers, did claim violations of the Vienna Convention before the federal courts, the latter, applying the municipal law doctrine of “procedural default”, decided that, because the individuals in question had not asserted their rights in the previous legal proceedings at State level, they could not assert them in the federal proceedings. In its Application, Germany based the jurisdiction of the Court on Article 36, paragraph 1, of the Statute of the Court and on Article I of the Optional Protocol of the Vienna Convention on Consular Relations.

Germany accompanied its Application by an urgent request for the indication of provisional measures, requesting the Court to indicate that the United States should take “all measures at its disposal to ensure that [one of its nationals, whose date of execution had been fixed at 3 March 1999] [was] not executed pending final judgment in the case . . .”. On 3 March 1999, the Court delivered an Order for the indication of provisional measures calling upon the United States of America, among other things, to “take all measures at its disposal to ensure that [the German national] [was] not executed pending the final decision in [the] proceedings”. However, the two German nationals were executed by the United States (…)

Ruling on the merits of the case, the Court observed that the United States did not deny that, in relation to Germany, it had violated Article 36, paragraph 1 (b), of the Vienna Convention, which required the competent authorities of the United States to inform the LaGrands of their right to have the Consulate of Germany notified of their arrest. It added that, in the case concerned, that breach had led to the violation of paragraph 1 (a) and paragraph 1 (c) of that Article, which dealt respectively with mutual rights of communication and access of consular officers and their nationals, and the right of consular officers to visit their nationals in prison and to arrange for their legal representation. The Court further stated that the United States had not only breached its obligations to Germany as a State party to the Convention, but also that there had been a violation of the individual rights of the LaGrands under Article 36, paragraph 1, which rights could be relied on before the Court by their national State.

The Court then turned to Germany’s submission that the United States, by applying rules of its domestic law, in particular the doctrine of “procedural default”, had violated Article 36, paragraph 2, of the Convention. That provision required the United States to “enable full effect to be given to the purposes for which the rights accorded [under Article 36] [were] intended”. The Court stated that, in itself, the procedural default rule did not violate Article 36. The problem arose, according to the Court, when the rule in question did not allow the detained individual to challenge a conviction and sentence by invoking the failure of the competent national authorities to comply with their obligations under Article 36, paragraph 1. The Court concluded that, in the present case, the procedural default rule had the effect of preventing Germany from assisting the LaGrands in a timely fashion as provided for by the Convention. Under those circumstances, the Court held that in the present case the rule referred to violated Article 36, paragraph 2.

With regard to the alleged violation by the United States of the Court’s Order of 3 March 1999 indicating provisional measures, the Court pointed out that it was the first time it had been called upon to determine the legal effects of such orders made under Article 41 of its Statute — the interpretation of which had been the subject of extensive controversy in the literature. After interpreting Article 41, the Court found that such orders did have binding effect. In the present case, the Court concluded that its Order of 3 March 1999 “was not a mere exhortation” but “created a legal obligation for the United States”. The Court then went on to consider the measures taken by the United States to implement the Order concerned and concluded that it had not complied with it.

With respect to Germany’s request seeking an assurance that the United States would not repeat its unlawful acts, the Court took note of the fact that the latter had repeatedly stated in all phases of those proceedings that it was implementing a vast and detailed programme in order to ensure compliance, by its competent authorities, with Article 36 of the Convention and concluded that such a commitment must be regarded as meeting the request made by Germany. Nevertheless, the Court added that if the United States, notwithstanding that commitment, were to fail again in its obligation of consular notification to the detriment of German nationals, an apology would not suffice in cases where the individuals concerned had been subjected to prolonged detention or convicted and sentenced to severe penalties. In the case of such a conviction and sentence, it would be incumbent upon the United States, by whatever means it chose, to allow the review and reconsideration of the conviction and sentence taking account of the violation of the rights set forth in the Convention.

For a commentary on Article 41 of the Statute, click here.  See here for more research material on the Vienna Convention and click here for the commentaries to the Vienna Convention

11. Arrest Warrant of 11 April 2000 (Democratic Republic of the Congo v. Belgium) Judgment, 14 February 2002. 

Belgium issued and circulated internationally, an arrest warrant against the incumbent Foreign Minister of Congo, based on universal jurisdiction. Congo asked the ICJ to decide that Belgium violated international law because it did not respect the inviolability and immunities of the foreign minister from criminal process before Belgian courts.

The ICJ held that the incumbent Foreign Minister enjoys immunity (during his tenure) for acts performed, both, in an official capacity and in a private capacity. The immunity applies regardless of whether the Minister is on foreign territory in an official or private visit. The Court held that there was no exception in customary international law to the absolute immunity of an incumbent Foreign Minister, including for situations where he has committed war crimes and crimes against humanity. Immunity does not mean impunity. The person continues to be individually responsible for the crime he committed and identified four situations where such a person may be prosecuted.

The ICJ concluded that the issuance and circulation of the arrest warrant violated Belgium’s international obligations towards the Congo. Belgium failed to respect, and infringed, Yerodia’s immunity and the inviolability enjoyed by him under international law.

For a summary of this case in this blog, see here.

For the ICJ summary, see here.

12. Kasikili/Sedudu Island (Botswana/Namibia) Judgment, 13 December 1999

On 29 May 1996, the Government of Botswana and the Government of Namibia by joint agreement submitted to the Court of the dispute concerning the boundary around Kasikili/Sedudu Island and the legal status of that island.

Excerpts of the summary provided in the ICJ website:

“In its Judgment of 13 December 1999, the Court began by stating that the island in question, which in Namibia is known as “Kasikili”, and in Botswana as “Sedudu”, is approximately 3.5 sq km in area, that it is located in the Chobe River, which divides around it to the north and south, and that it is subject to flooding of several months’ duration, beginning around March. It briefly outlined the historical context of the dispute, then examined the text of the 1890 Treaty, which, in respect of the region concerned, located the dividing line between the spheres of influence of Great Britain and Germany in the “main channel” of the River Chobe. In the Court’s opinion, the real dispute between the Parties concerned the location of that main channel, Botswana contending that it was the channel running north of Kasikili/Sedudu Island and Namibia the channel running south of the island. Since the Treaty did not define the notion of “main channel”, the Court itself proceeded to determine which was the main channel of the Chobe River around the Island. In order to do so, it took into consideration, inter alia, the depth and the width of the channel, the flow (i.e., the volume of water carried), the bed profile configuration and the navigability of the channel. After considering the figures submitted by the Parties, as well as surveys carried out on the ground at different periods, the Court concluded that “the northern channel of the River Chobe around Kasikili/Sedudu Island must be regarded as its main channel”. Having invoked the object and purpose of the 1890 Treaty and its travaux préparatoires, the Court examined at length the subsequent practice of the parties to the Treaty. The Court found that that practice did not result in any agreement between them regarding the interpretation of the Treaty or the application of its provisions. The Court further stated that it could not draw conclusions from the cartographic material “in view of the absence of any map officially reflecting the intentions of the parties to the 1890 Treaty” and in the light of “the uncertainty and inconsistency” of the maps submitted by the Parties to the dispute. It finally considered Namibia’s alternative argument that it and its predecessors had prescriptive titles to Kasikili/Sedudu Island by virtue of the exercise of sovereign jurisdiction over it since the beginning of the century, with the full knowledge and acceptance of the authorities of Botswana and its predecessors. The Court found that, while the Masubia of the Caprivi Strip (territory belonging to Namibia) did indeed use the island for many years, they did so intermittently, according to the seasons and for exclusively agricultural purposes, without it being established that they occupied the island à titre de souverain, i.e., that they were exercising functions of State authority there on behalf of the Caprivi authorities. The Court therefore rejected that argument. After concluding that the boundary between Botswana and Namibia around Kasikili/Sedudu Island followed the line of deepest soundings in the northern channel of the Chobe and that the island formed part of the territory of Botswana, the Court recalled that, under the terms of an agreement concluded in May 1992 (the “Kasane Communiqué”), the Parties had undertaken to one another that there should be unimpeded navigation for craft of their nationals and flags in the channels around the Island.”

13. Difference Relating to Immunity from Legal Process of a Special Rapporteur of the Commission on Human Rights (Advisory Opinion) Advisory Opinion, 29 April 1999

Excerpts of the summary provided in the ICJ website:

(The) Economic and Social Council requested the Court for an advisory opinion on the legal question of the applicability of Article VI, Section 22, of the Convention on the Privileges and Immunities of the United Nations to a Special Rapporteur of the Commission on Human Rights, and on the legal obligations of Malaysia in that case. The Special Rapporteur, Mr. Cumaraswamy, was facing several lawsuits filed in Malaysian courts by plaintiffs who asserted that he had used defamatory language in an interview published in a specialist journal and who were seeking damages for a total amount of US$112 million. However, according to the United Nations Secretary-General, Mr. Cumaraswamy had been speaking in his official capacity as Special Rapporteur and was thus immune from legal process by virtue of the above-mentioned Convention (…)

In its Advisory Opinion of 29 April 1999, having concluded that it had jurisdiction to render such an opinion, the Court noted that a Special Rapporteur entrusted with a mission for the United Nations must be regarded as an expert on mission within the meaning of Article VI, Section 22, of the Convention on the Privileges and Immunities of the United Nations. It observed that Malaysia had acknowledged that Mr. Cumaraswamy was an expert on mission and that such experts enjoyed the privileges and immunities provided for under the Convention in their relations with States parties, including those of which they were nationals. The Court then considered whether the immunity applied to Mr. Cumaraswamy in the specific circumstances of the case. It emphasized that it was the Secretary-General, as the chief administrative officer of the Organization, who had the primary responsibility and authority to assess whether its agents had acted within the scope of their functions and, where he so concluded, to protect those agents by asserting their immunity. The Court observed that, in the case concerned, the Secretary-General had been reinforced in his view that Mr. Cumaraswamy had spoken in his official capacity by the fact that the contentious Article several times explicitly referred to his capacity as Special Rapporteur, and that in 1997 the Commission on Human Rights had extended his mandate, thereby acknowledging that he had not acted outside his functions by giving the interview. Considering the legal obligations of Malaysia, the Court indicated that, when national courts are seised of a case in which the immunity of a United Nations agent is in issue, they must immediately be notified of any finding by the Secretary-General concerning that immunity and that they must give it the greatest weight. Questions of immunity are preliminary issues which must be expeditiously decided by national courts in limine litis. As the conduct of an organ of a State, including its courts, must be regarded as an act of that State, the Court concluded that the Government of Malaysia had not acted in accordance with its obligations under international law in the case concerned.”

14. Applicability of Article VI, Section 22, of the Convention on the Privileges and Immunities of the United Nations Advisory Opinion, 15 December 1989

Excerpts of the summary provided in the ICJ website:

On 24 May 1989, the Economic and Social Council of the United Nations (ECOSOC) adopted a resolution whereby it requested the Court to give, on a priority basis, an advisory opinion on the question of the applicability of Article VI, Section 22, of the Convention on the Privileges and Immunities of the United Nations in the case of Mr. Dumitru Mazilu, Rapporteur of the Sub-Commission on the Prevention of Discrimination and Protection of Minorities of the Commission on Human Rights.

Mr. Mazilu, a Romanian national, had been entrusted, by a resolution of the Sub-Commission, with the task of drawing up a report on “Human Rights and Youth” in connection with which the Secretary-General was asked to provide him with all the assistance he might need.

Mr. Mazilu was absent from the 1987 session of the Sub-Commission, during which he was to have filed his report, and Romania let it be known that he had been taken into hospital. Mr. Mazilu’s mandate finally expired on 31 December 1987, but without his being relieved of the task of Rapporteur that had been assigned to him.

Mr. Mazilu was able to get various messages through to the United Nations, in which he complained that the Romanian authorities were refusing him a travel permit.

Moreover, those authorities, further to contacts initiated by the Under-Secretary-General for Human Rights at the request of the Sub-Commission, had let it be known that any intervention of the United Nations Secretariat would be considered as interference in Romania’s internal affairs.

Those authorities subsequently informed the United Nations of their position with regard to the applicability to Mr. Mazilu of the Convention on the Privileges and Immunities of the United Nations, asserting, inter alia, that the Convention did not equate Rapporteurs, whose activities were only occasional, with experts on missions for the United Nations ; that they could not, even if granted some of that status, enjoy anything more than functional immunities and privileges ; that those privileges and immunities began to apply only at the moment when the expert left on a journey connected with the performance of his mission ; and that in the country of which he was a national an expert enjoyed privileges and immunities only in respect of actual activities relating to his mission.

The Court rendered its Advisory Opinion on 15 December 1989, and began by rejecting Romania’s contention that the Court lacked jurisdiction to entertain the Request. Moreover, the Court did not find any compelling reasons that might have led it to consider it inappropriate to render an opinion.

It then engaged in a detailed analysis of Article VI, Section 22, of the Convention, which relates to “Experts on missions for the United Nations”. It reached the conclusion, inter alia, that Section 22 of the Convention was applicable to persons (other than United Nations officials) to whom a mission had been entrusted by the Organization and who were therefore entitled to enjoy the privileges and immunities provided for in that Section with a view to the independent exercise of their functions ; that during the whole period of such missions, experts enjoyed these functional privileges and immunities whether or not they travelled ; and that those privileges and immunities might be invoked against the State of nationality or of residence unless a reservation to Section 22 of the Convention had been validly made by that State.

Turning to the specific case of Mr. Mazilu, the Court expressed the view that he continued to have the status of Special Rapporteur, that as a consequence he should be regarded as an expert on mission within the meaning of Section 22 of the Convention and that that Section was accordingly applicable in his case.

15. United States Diplomatic and Consular Staff in Tehran (United States of America v. Iran) Judgment, 24 May 1980

Excerpts of the summary provided in the ICJ website:

The case was brought before the Court by Application by the United States following the occupation of its Embassy in Tehran by Iranian militants on 4 November 1979, and the capture and holding as hostages of its diplomatic and consular staff.

On a request by the United States for the indication of provisional measures, the Court held that there was no more fundamental prerequisite for relations between States than the inviolability of diplomatic envoys and embassies, and it indicated provisional measures for ensuring the immediate restoration to the United States of the Embassy premises and the release of the hostages.

In its decision on the merits of the case, at a time when the situation complained of still persisted, the Court, in its Judgment of 24 May 1980, found that Iran had violated and was still violating obligations owed by it to the United States under conventions in force between the two countries and rules of general international law, that the violation of these obligations engaged its responsibility, and that the Iranian Government was bound to secure the immediate release of the hostages, to restore the Embassy premises, and to make reparation for the injury caused to the United States Government.

The Court reaffirmed the cardinal importance of the principles of international law governing diplomatic and consular relations. It pointed out that while, during the events of 4 November 1979, the conduct of militants could not be directly attributed to the Iranian State — for lack of sufficient information — that State had however done nothing to prevent the attack, stop it before it reached its completion or oblige the militants to withdraw from the premises and release the hostages. The Court noted that, after 4 November 1979, certain organs of the Iranian State had endorsed the acts complained of and decided to perpetuate them, so that those acts were transformed into acts of the Iranian State.

The Court gave judgment, notwithstanding the absence of the Iranian Government and after rejecting the reasons put forward by Iran in two communications addressed to the Court in support of its assertion that the Court could not and should not entertain the case.

The Court was not called upon to deliver a further judgment on the reparation for the injury caused to the United States Government since, by Order of 12 May 1981, the case was removed from the List following discontinuance.

Western Sahara Advisory Opinion of 16 October 1975

On 13 December 1974, the General Assembly requested an advisory opinion on the following questions: “I. Was Western Sahara (Rio de Oro and Sakiet El Hamra) at the time of colonization by Spain a territory belonging to no one (terra nullius) ?” If the answer to the first question is in the negative, “II. What were the legal ties between this territory and the Kingdom of Morocco and the Mauritanian entity ?”

See the summary provided in the ICJ website:

In its Advisory Opinion, delivered on 16 October 1975, the Court replied to Question I in the negative. (It held that “(t)he information furnished the court shows (a)that at the time of colonization western Sahara was inhabited by peoples which, if nomadic, were socially and politically organized in tribes and under chiefs competent to represent them; (b) that Spain did not proceed upon the basis that it was establishing its sovereignty over terra nullius.“)

In reply to Question II, it expressed the opinion that the materials and information presented to it showed the existence, at the time of Spanish colonization, of legal ties of allegiance between the Sultan of Morocco and some of the tribes living in the territory of Western Sahara. (The Court founds that materials show “that the Sultan displayed, and was recognized by other States to possess, some authority or influence with respect to those tribes.”)

They equally showed the existence of rights, including some rights relating to the land, which constituted legal ties between the Mauritanian entity, as understood by the Court, and the territory of Western Sahara.

On the other hand, the Court’s conclusion was that the materials and information presented to it did not establish any tie of territorial sovereignty between the territory of Western Sahara and the Kingdom of Morocco or the Mauritanian entity.

Thus the Court did not find any legal ties of such a nature as might affect the application of the General Assembly’s 1960 resolution 1514 (XV) — containing the Declaration on the Granting of Independence to Colonial Countries and Peoples — in the decolonization of Western Sahara and, in particular, of the principle of self-determination through the free and genuine expression of the will of the peoples of the territory.

 

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Documents: Palestine Bid for Statehood: Report of the Committee on the Admission of New Members (Palestine)

 © Ruwanthika Gunaratne and Public International Law at https://ruwanthikagunaratne.wordpress.com, 2008 – present. Unauthorized use and/or duplication of this material without express and written permission from this blog’s author and/or owner is strictly prohibited. Excerpts and links may be used, provided that full and clear credit is given to Ruwanthika Gunaratne and Public International Law with appropriate and specific direction to the original content.

Background:

On 23 September 2011, the President of the Palestinian Authority applied for full membership of the UN. The Secretary General transmitted this to the Security Council who sought the views of the Admissions Committee under  Rule 59 of the Provisional Rules of Procedure of the Security Council.The Committee reverted to the Security Council with its Report (reproduced in full below), which said that given the divergent views of its members, the Committee was unable to make an unanimous recommendation on Palestine’s admission. The Report summarizes the discussions had in the Committee.

REPORT OF THE COMMITTEE ON THE ADMISSION OF NEW MEMBERS CONCERNING THE APPLICATION OF PALESTINE FOR MEMBERSHIP IN THE UNITED NATIONS

1.  At its 6624th meeting on 28 September 2011, the Security Council had before it the application of Palestine for admission to membership in the United Nations(S/2011/592). In accordance with rule 59 of the provisional rules of procedure and in the absence of a proposal to the contrary, the President of the Council (Lebanon) referred the application to the Committee for examination and report.

2.  At the 109th and 110th meetings of the Security Council Committee on the Admission of New Members, held on 30 September and 3 November 2011, respectively, the Committee considered the application.

3.  Following the 109th meeting of the Committee, the Presidency of the Security Council for the month of October (Nigeria) convened five informal meetings of the Committee, four of which took place at the expert level, to carefully consider whether Palestine met the specific criteria for admission to membership contained in Article 4 of the Charter of the United Nations. Experts considered whether Palestine met the criteria for statehood, was a peace-loving State, and was willing and able to carry out the obligations contained in the Charter.

4.  In the course of the meetings of the Committee on the Admission of New Members, differing views were expressed. The view was expressed that the applicant fulfils all the criteria set out in the Charter. Questions were raised as to whether the applicant meets all of the Charter membership requirements. The view was also expressed that deliberations should take into account the broader political context of the matter at hand.

5.  It was stated that the criteria set out in Article 4 of the Charter were the only factors that could be taken into consideration in the Committee’s deliberations. In support of this position, reference was made to the Advisory Opinion of 28 May 1948 of the International Court of Justice (ICJ), on the Conditions of Admission of a State to Membership in the United Nations (Article 4 of the Charter).

6.  It was also asserted that the Committee’s work, whatever its outcome, should be mindful of the broader political context. The view was expressed that a negotiated solution remained the only option for a long-term sustainable peace and that final status issues had to be resolved through negotiations. Support was expressed for a two-State solution based on pre-1967 borders, resulting from political negotiations, leading to an independent State of Palestine with East Jerusalem as its capital. It was stressed that the granting of Palestine’s right to self-determination and recognition must not be seen as contrary to Israel’s inalienable right to exist.

7.  It was stated that the Committee’s work should not harm the prospects of the resumption of peace talks, particularly in light of the Quartet statement on 23 September 2011 that had set out a clear timetable for the resumption of negotiations. Similarly, it was also stated that the prospect of negotiations should not delay the Security Council’s consideration of Palestine’s application. In addition, It was stated that Palestine’s application was neither detrimental to the political process nor an alternative to negotiations. Concerns were raised in relation to Israel’s continued settlement activities, which were considered illegal under international law and were an obstacle to a comprehensive peace.

8.  In relation to the application of Palestine (S/2011/592), attention was drawn to the letter received by the Secretary-General from the President of Palestine on 23 September 2011, which contained a declaration – made in a formal instrument – stating that the State of Palestine was a peace-loving nation; that it accepted the obligations contained in the Charter of the United Nations; and that it solemnly undertook to fulfil them.

9.  On the criterion of statehood, reference was made to the 1933 Montevideo Convention on the Rights and Duties of States, which declares that a State as a person of international law should possess a permanent population, a defined territory, a government and the capacity to enter into relations with other States.

10.  With regard to the requirements of a permanent population and a defined territory, the view was expressed that Palestine fulfilled these criteria. It was stressed that the lack of precisely settled borders was not an obstacle to statehood.

11.  Questions were raised, however, regarding Palestine’s control over its territory, in light of the fact that Hamas was the de facto authority in the Gaza Strip. It was affirmed that the Israeli occupation was a factor preventing the Palestinian government from exercising full control over its territory. However, the view was expressed that occupation by a foreign power did not imply that the sovereignty of an occupied territory was to be transferred to the occupying power.

12.  With regard to the requirement of a government, the view was expressed that Palestine fulfilled this criterion. However, it was stated that Hamas was in control of 40 percent of the population of Palestine; therefore the Palestinian Authority (PA) could not be considered an effective government. However, it was stressed that the PLO, and not Hamas, was the legitimate representative of the Palestinian people.

13.  Reference was made to reports of the World Bank, the International Monetary Fund and the Ad Hoc Liaison Committee for the Coordination of the International Assistance to Palestinians, which had concluded that Palestine’s governmental functions were now sufficient for the functioning of a State.

14.  With regard to the requirement that a State have the capacity to enter into relations with other States, the view was expressed that Palestine fulfilled this criterion. It was recalled that Palestine had been accepted into membership in the Non-Aligned Movement, the Organization of the Islamic Conference, the United Nations Economic and Social Commission for Western Asia, the Group of 77 and UNESCO. In addition, over 130 States had recognized Palestine as an independent sovereign State. Questions were raised, however, regarding the authority of the PA to engage in relations with other States, since under the Oslo Accords the PA could not engage in foreign relations.

15.  With regard to the requirement that an applicant be “peace-loving”, the view was expressed that Palestine fulfilled this criterion in light of its commitment to the achievement of a just, lasting and comprehensive resolution of the Israeli-Palestinian conflict. It was further stated that Palestine’s fulfilment of this criterion was also evident in its commitment to resuming negotiations on all final status issues on the basis of the internationally endorsed terms of reference, relevant United Nations resolutions, the Madrid principles, the Arab Peace Initiative and the Quartet road map.

16. Questions were raised as to whether Palestine was indeed a peace-loving state, since Hamas refused to renounce terrorism and violence, and had the stated aim of destroying Israel. Reference was made, on the other hand, to the Advisory Opinion of the ICJ on Namibia of 1971, which stated that the only acts that could be attributable to a State were those of the State’s recognized authority.

17.  With regard to the requirement that an applicant accept the obligations contained in the Charter and be able and willing to carry out these obligations, the view was expressed that Palestine fulfilled these criteria, as was evident, inter alia, from the solemn declaration to this effect contained in its application. It was recalled that in 1946, when considering the application of Israel for membership, it had been argued that Israel’s solemn pledge to carry out its obligations under the Charter was sufficient to meet this criterion.

18.  The view was also expressed that the Charter required more than a verbal commitment by an applicant to carry out its Charter obligations; an applicant had to show a commitment to the peaceful settlement of disputes and to refrain from the threat or the use of force in the conduct of its international relations. In this connection, it was stressed that Hamas had not accepted these obligations.

19.  The view was expressed that the Committee should recommend to the Council that Palestine be admitted to membership in the United Nations. A different view was expressed that the membership application could not be supported at this time and an abstention was envisaged in the event of a vote. Yet another view expressed was that the applicant did not meet the requirements for membership and a favourable recommendation to the General Assembly would not be supported.

20.  Further, it was suggested that, as an intermediate step, the General Assembly should adopt a resolution by which Palestine would be made an Observer State.

21.  In summing up the debate at the 110th meeting of the Committee on the Admission of New members, the Chairman stated that the Committee was unable to make a unanimous recommendation to the Security Council.

22.  The Security Council Committee on the Admission of New Members concluded its consideration of the application of Palestine for admission to membership in the United Nations.

23.  At its 111th meeting, the Committee approved the present report on its consideration of the application of Palestine for membership in the United Nations.

More on the Admissions Committee

This Committee is a sub-Committee of the Security Council and consists of 15 representatives who, as far as possible, make decisions through consensus. The role of the Committee is to “…examine any application referred to it (by the President of the Security Council) and report its conclusions thereon to the Council” (Rule 59 of the Provisional Rules of Procedure)

Based on its conclusions, it is the Security Council that finally decides “…whether in its judgement the applicant is a peace-loving State and is able and willing to carry out the obligations contained in the Charter and, accordingly, whether to recommend the applicant State for membership.” (Rule 60 of the Provisional Rules of Procedure). According to the UN Situation Report on Palestine:

If   the   Committee   recommends   admission  it  usually  presents  the  Council   with  a  draft  resolution  recommending   admission  of  the  new  member  for  con-­ sideration   by   the   General   Assembly.   In  recent  years,  if  there  is  no  disagreement   over   the   Committee’s   recom-­ mendation,  the  Council  has  chosen  to   adopt   this   resolution   “in   accordance   with  the  understanding  reached  in  prior  consultations”  and  without  either  a   debate  or  a  vote.

The  Council  could  also  choose  not  to   refer  the  application  to  the  Committee. Over   the   years   the   practice   of   referring   membership   applications varied. For example, the Council recommended the admission of Pakistan  (1947),  Finland   (1947)  and  Indonesia  (1950),  directly, without going through the Admissions Committee.  Between   1952  and  1968  the  Council  did  not  refer  any  applications  to  the  Committee.   However,   since   1969,  the Security Council referred applications  to   the   Committee (See SC Situation Report on Palestine).

 © Ruwanthika Gunaratne and Public International Law at https://ruwanthikagunaratne.wordpress.com, 2008 – present. Unauthorized use and/or duplication of this material without express and written permission from this blog’s author and/or owner is strictly prohibited. Excerpts and links may be used, provided that full and clear credit is given to Ruwanthika Gunaratne and Public International Law with appropriate and specific direction to the original content.