INTERNATIONAL COURT OF JUSTICE

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1 INTERNATIONAL COURT OF JUSTICE Appendix and Updates BY SABRINA FORTE AND MEGAN SRINIVAS Introduction International law is a complex and multifaceted issue that requires thorough research and application of its concepts. Often, legal principles between States or between written law and customary law collide, and the ICJ must step in amidst all of the clamor to make a legally sound decision based on its interpretation of these principles. This document provides both updates on the two current cases with information about recent developments, and an appendix which identifies and expounds upon the most important and pertinent issues of international law. These are issues and terms that advocates must manipulate in their favor and that judges must address in their questions and written opinions. For additional references, see the links that have been posted on the ICJ page of the HMCE website. Many of them expound upon these legal principles and offer commentary on the pending ICJ cases. REPUBLIC OF CONGO V. FRANCE Recent Developments Republic of Congo v. France is a complicated case that can set important precedents for the future. Since it entered the ICJ docket, a plethora of literature has been published regarding the legal issues involved in this case. This literature deals primarily with the fact that almost no court has ever entered the realm of applying the UN Torture Convention to nationals of States that are non-parties to the Convention. Currently, only 138 States have ratified the Convention, leaving numerous States (including the Republic of Congo) unbound by its provisions, including Article 5, Section 2, which is one of the primary sources of international law that France cites in this case. Thus, it currently remains an open question whether international law authorizes States to exercise universal jurisdiction over nationals of states who did not ratify the Convention. This case places in the Court s hands this important decision. As of now, treaties do not bind third parties without their consent, as a means of respecting state sovereignty. If there is a norm of customary international law that authorizes States to bind these parties, the legal basis for it will most likely come from the doctrine of universal jurisdiction, which maintains that the extraordinary nature of crimes against humanity render them susceptible to prosecution by and in States not directly connected to the crimes (see below for more on universal jurisdiction). As of now the case s proceedings are at a halt until the filing of Congo s reply occurs, followed by the filing of France s rejoinder. Originally, these filings were to be completed by the middle of However, on December 13, 2004, the time limits were extended, followed by another extension on June 11, Even with the seminal importance of Congo v. France, it seems that the proceedings before the International Court of Justice may just come to an end. This will occur if France and Congo reach an out-ofcourt settlement, which would take away the opportunity for the ICJ to authoritatively rule on the nature and scope of universal jurisdiction over torture. While a permanent cessation of the proceedings in the ICJ is feared, there currently isn t any substantiating proof that such a move will occur. Useful Terms from International Law Universal Jurisdiction The principle of universal criminal jurisdiction has been invoked, with varying degrees of success, to justify the prosecution of heinous crimes (i.e. torture, genocide, and crimes 1

2 against humanity) by any State, regardless of the location of the crimes or the nationalities of the perpetrators and victims. The prosecuting State need not identify a direct connection with the offending persons or States, as the crimes in question are regarded as offenses to the global community as a whole because of their severity. Universal jurisdiction entered mainstream international legal discourse long ago, when piracy posed an international threat in which the perpetrators often eluded arrest and prosecution. The principle has evolved to include crimes perpetrated by States and their high-ranking officials, who often avoid legal consequences due to legal protections such as diplomatic immunity and the principle of sovereignty, or due to the inability of their own local judiciaries to hold efficient and fair trials. Universal jurisdiction has been applied most effectively in various ad hoc war crimes tribunals (most notable are those that took place in Nuremburg and Tokyo following World War II, as well as Yugoslavia and Rwanda in response to genocide and crimes against humanity within national borders). The International Criminal Court (ICC), a fledgling judicial organ of the UN meant specifically to facilitate the prosecution of foreign criminals by any complainant, has been thought to provide the best forum for establishing concrete standards for universal jurisdiction. However, the ICC is still in its nascent stages and has not acquired sufficient international support to issue such important statements. Many States, including the United States, have not accepted ICC jurisdiction, and over those States in which it does have jurisdiction, the Court may only address a limited scope of crimes (genocide, war crimes, and crimes against humanity; torture and terrorism have been discussed but have yet to fall under ICC jurisdiction). Perhaps the most famous example of the use of universal jurisdiction against government officials is that of Augusto Pinochet, the former Chilean dictator who in 1998 was extradited to Spain and placed on trial for murder, torture, and hostage-taking. This landmark ruling was made by a British court, not by an international court like the ICJ. Nonetheless, it was a signficant ruling that declared foreign officials susceptible to international jurisdiction. Another well-known case is from 1960, when former Nazi official Adolf Eichmann was seized in Argentina and taken to Israel under charges of genocide and crimes against the Jewish people and humanity as a whole. It is worth looking into some of the similarities between these cases and France s claim to universal jurisdiction. The Principle of Sovereignty The principle of sovereignty is one of the most important facets of the UN and all of its organs, including the ICJ. The concept is at once very straightforward and extremely complex. The international community consists of individual, sovereign States that cannot infringe upon one another s rights, especially in matters that the States can conduct domestically (i.e. criminal trials). This principle is often cited from Article 2, Section 1, of the UN Charter, which states that [t]he Organization is based on the principle of the sovereign equality of all its Members. In this case, the Congo argues that its ability to conduct its own investigations into the crimes against humanity allegedly committed by President Nguesso and his administration precludes French inquiry into these criminal acts. However, the increasing importance of universal jurisdiction and human rights law has modified State rights to sovereignty. For example, States with poor human rights records are more liable to inquiry because their judiciaries are assumed to be more vulnerable to corruption and injustice. According to the principle of complementarity, if domestic courts cannot fairly and effectively adjudicate, then foreign and international courts may assume that responsibility. The Court must decide which modifications are acceptable in the realm of international law or if customary international law has gone too far in departing from the original meaning of sovereignty. Diplomatic Immunity This long-held principle is used to ensure the safety of a State s diplomats from frivolous, irrational, or illegal lawsuits when traveling through other States. It stems from the principle of sovereignty. Article 31 of the Vienna Convention on Diplomatic Relations (1961) states the following: 1. A diplomatic agent shall enjoy immunity from the criminal jurisdiction of the receiving State. He shall also enjoy immunity from its civil and administrative jurisdiction, except in the case of: (a) a real action relating to private immovable property situated in the territory of the receiving State, unless he holds it on behalf of the sending State for the purposes of the mission; (b) an action relating to succession in which the diplomatic agent is involved as executor, administrator, heir or legatee as a private person and not on behalf of the sending State; 2

3 (c) an action relating to any professional or commercial activity exercised by the diplomatic agent in the receiving State outside his official functions. 2. A diplomatic agent is not obliged to give evidence as a witness. 3. No measures of execution may be taken in respect of a diplomatic agent except in the cases coming under sub-paragraphs (a), (b) and (c) of paragraph 1 of this Article, and provided that the measures concerned can be taken without infringing the inviolability of his person or of his residence. 4. The immunity of a diplomatic agent from the jurisdiction of the receiving State does not exempt him from the jurisdiction of the sending State. France claims that the diplomatic immunity privileges of President Nguesso, et al., are not applicable to the inquiries and investigations that Congo is contesting, but that those privileges would have been invoked had it decided to take any further legal action. Per the case s briefing, France also cites the Convention of Torture, which enables a State to investigate the actions of foreign officials suspected to have committed torture or crimes against humanity. MALAYSIA V. SINGAPORE Recent Developments The ICJ is not the only forum to which Malaysia and Singapore have brought disputing claims. On September 5, 2003, Malaysia transmitted a request for provisional measures in accordance with the United Nations Convention on the Law of the Sea (UNCLOS) to the International Tribunal for the Law of the Sea (ITLOS). On October 10, 2003, the ITLOS tribunal designated the Permanent Court of Arbitration (PCA) as its registry for the arbitration Case Concerning Land Reclamation By Singapore in and around the Straits of Johor. On April 26, 2005, Malaysia and Singapore signed a settlement agreement. The parties agreed that the maritime boundaries issues would be resolved through amicable negotiations. The settlement agreement provides that Singapore shall modify the final design of the shoreline of its land reclamation in a certain area at Pulau Tekong, that Singapore will carry out maintenance drudging as is necessary to ensure a limit on the depth of a certain dredged area, and that Singapore shall pay a lump sum of 374,400 Malaysian Ringgit to compensate Malaysian fishermen for losses as a result of the reclamation works. Following this settlement, the Permanent Court of Arbitration officially authorized and released the Award on Agreed Terms and ended its proceedings of Malaysia v. Singapore on September 1, The ICJ case, which specifically addresses the region of Pedra Branca/Pulau Batu Puteh, is still awaiting the submission of the parties written memorials and subsequent oral hearings. The text of PCA s decision gives some insight into the legal and political issues surrounding Malaysian-Singaporean relations in general and their pending ICJ case in particular. The Award reads as follows: 1. Unanimously, Prescribes, pending a decision by the Annex VII arbitral tribunal, the following provisional measures under article 290, paragraph 5, of the Convention: Malaysia and Singapore shall cooperate and shall, for this purpose, enter into consultations forthwith in order to: (a) establish promptly a group of independent experts with the mandate (i) to conduct a study, on terms of reference to be agreed by Malaysia and Singapore, to determine, within a period not exceeding one year from the date of this Order, the effects of Singapore s land reclamation and to propose, as appropriate, measures to deal with any adverse effects of such land reclamation; (ii) to prepare, as soon as possible, an interim report on the subject of infilling works in Area D at Pulau Tekong; (b) exchange, on a regular basis, information on, and assess risks or effects of, Singapore s land reclamation works; (c) implement the commitments noted in this Order and avoid any action incompatible with their effective implementation, and, without prejudice to their positions on any issue before the Annex VII arbitral tribunal, consult with a view to reaching a prompt agreement on such temporary measures with respect to Area D at Pulau Tekong, including suspension or adjustment, as may be found necessary to ensure that the infilling operations pending completion of the study referred to in subparagraph (a)(i) with respect to that area do not prejudice 3

4 Singapore s ability to implement the commitments referred to in paragraphs 85 to Unanimously, Directs Singapore not to conduct its land reclamation in ways that might cause irreparable prejudice to the rights of Malaysia or serious harm to the marine environment, taking especially into account the reports of the group of independent experts. 3. Unanimously, Decides that Malaysia and Singapore shall each submit the initial report referred to in article 95, paragraph 1 of the Rules, not later than 9 January 2004 to this Tribunal and to the Annex VII arbitral tribunal, unless the arbitral tribunal decides otherwise. 4. Unanimously, Decides that each party shall bear its own costs. NOW THEREFORE the Tribunal 1. Decides in light of the joint request by the Parties referred to in preambular paragraph 24, that it has jurisdiction to render this Award in the Case Concerning Land Reclamation by Singapore In and Around the Straits of Johor (Malaysia v. Singapore); 2. Decides to accede to the said joint request by the Parties and deliver a final Award binding upon the Parties in the terms set out in the Settlement Agreement, and does so by attaching the text of the said Settlement Agreement as the Annex to this Award which is issued pursuant to article 18 of the Rules of Procedure; 3. Decides, pursuant to article 19 of the Rules of Procedure, that each Party shall bear its own costs in presenting their respective cases; 4. Decides in accordance with article 20 of the Rules of Procedure that the expenses of this Tribunal shall be borne by the Parties in equal shares; 5. Decides that these proceedings are terminated. Useful Terms from International Law Sovereignty v. Occupation The case of Malaysia v. Singapore is a struggle between the purported sovereign over the disputed territories (Malaysia) and the State currently occupying the territories (Singapore). This tension arises because, according to international law, simply occupying a territory does not mean that a State can exercise sovereignty over it. This holds true even if the State operates businesses or conducts trade from the territory something that Singapore has done for over a century. Malaysia draws a distinction between Singapore being an appointed administrator over the contested islands rather than an owner. What rights and privileges exist, then, when a State occupies a territory? The 1907 Hague Regulation, the Fourth Geneva Convention, and customary international law delineate several rules to the law of occupation. Many of these rules directly address occupation by hostile forces (which is not the case here), but the more general precepts include: 1.) The occupant does not acquire sovereignty over the territory. 2.) Occupation is only a temporary situation, and the rights of the occupant are limited to the extent of that period. 3.) The occupying power must respect the laws in force in the occupied territory, unless they constitute a threat to its security or an obstacle to the application of the international law of occupation. 4.) The confiscation of private property by the occupant is prohibited. This would imply that Malaysia s claims are legally justified: Singapore s term as an administrator can come to an end at any given time, and sovereignty is by no means guaranteed. However, precedents that favor the status quo argument complicate that claim. The status quo argument, brought forth by Singapore, maintains that the best way to grant sovereignty is to concede it to the State that currently holds authority over the contested territory. Malaysia used this same argument in Indonesia v. Malaysia ( Sovereignty over Pulau Ligitan and Pulau Sipadan ), and the Court ruled in its favor. This precedent may compel the Court to rule in favor of the State currently situated within territorial borders. Prima Facie Evidence The outcome of this case may depend upon whether the Court decides to accept occupation as prima facie evidence for sovereignty. Prima facie is Latin for at first sight, and is used to describe evidence that is good enough at face value to constitute fact (unless disproved by the opposing party). For example, many states in the US have passed laws designating the display of crosses, swastikas, and other symbols with a history of violence as prima facie evidence to prosecute an individual for the intent to intimidate or a race-based hate crime. You are encouraged to research any precedents by foreign or in- 4

5 ternational courts, as well as any other sources of international law, to find when prima facie evidence can be applied. PORTUGAL V. AUSTRALIA (HISTORICAL CASE) Useful Terms from International Law Non-Self-Governing Territories The General Assembly (GA) of the United Nations maintains and issues a list of currently occupied territories and/or former colonies that do not govern themselves. The Special Committee on Decolonization prepares the list, which was last updated in This list is somewhat controversial because it often excludes decolonized territories in need of protection while including territories with established democratic processes and little administrative intervention. Article 73 of the UN Charter delineates the rules regarding non-self-governing territories, especially as the duties of administering powers (like Portugal in this case) are concerned: Members of the United Nations which have or assume responsibilities for the administration of territories whose peoples have not yet attained a full measure of self-government recognize the principle that the interests of the inhabitants of these territories are paramount, and accept as a sacred trust the obligation to promote to the utmost, within the system of international peace and security established by the present Charter, the well-being of the inhabitants of these territories, and, to this end: a. to ensure, with due respect for the culture of the peoples concerned, their political, economic, social, and educational advancement, their just treatment, and their protection against abuses; b. to develop self-government, to take due account of the political aspirations of the peoples, and to assist them in the progressive development of their free political institutions, according to the particular circumstances of each territory and its peoples and their varying stages of advancement; c. to further international peace and security; d. to promote constructive measures of development, to encourage research, and to co-operate with one another and, when and where appropriate, with specialized international bodies with a view to the practical achievement of the social, economic, and scientific purposes set forth in this Article; and e. to transmit regularly to the Secretary-General, for informational purposes, subject to such limitation as security and constitutional considerations may require, statistical and other information of a technical nature relating to economic, social, and educational conditions in the territories for which they are respectively responsible other than those territories to which Chapters XII and XIII apply. The protection of non-self-governing territories is meant to facilitate a smooth transition into a sovereign, democratic state. However, the designated administering powers must recognize the territory s rights to voice and enact ideas reflective of its population and beneficial to its people. Right to Self-Determination A General Recommendation by the UN Office of the High Commissioner for Human Rights defines the right to self-determination in this way: In respect of the self-determination of peoples, two aspects have to be distinguished. The right to self-determination of peoples has an internal aspect, that is to say, the rights of all peoples to pursue freely their economic, social and cultural development without outside interference. In that respect there exists a link with the right of every citizen to take part in the conduct of public affairs at any level, as referred to in article 5 (c) of the International Convention on the Elimination of All Forms of Racial Discrimination. In consequence, Governments are to represent the whole population without distinction as to race, colour, descent or national or ethnic origin. The external aspect of self-determination implies that all peoples have the right to determine freely their political status and their place in the international community based upon the principle of equal rights and exemplified by the liberation of peoples from colonialism 5

6 and by the prohibition to subject peoples to alien subjugation, domination and exploitation. While the internal aspect of self-determination has become increasingly important in the international community, this case deals mainly with the external aspect of self-determination; that is, the right for a people to determine their political status. This means that East Timor had the right to voice their concerns for any potential threats to its development as a state. The primary threat to East Timor in Portugal v. Australia is the 1972 agreement between Australia and Indonesia, which establishes a Zone of Cooperation that Portugal claims will exploit and deplete East Timor s hydrocarbon resources. In response, Australia argues that Portugal s grievance lies not with Australia but with Indonesia, and that Portugal s failure to implicate Indonesia in this case necessitates that the Court throw the grievance out. Be sure to consult the map located in Appendix A of the case briefing to get some insight as to whether or not Australia and Indonesia are, in fact, infringing upon East Timor s right to self-determination. Vienna Convention on Diplomatic Relations (1961). UN official text. < diplomat.htm> Malaysia v. Singapore Occupation and international humanitarian law: questions and answers. The International Committee of the Red Cross. < siteeng0.nsf/iwplist594/ AE4C5F11BA20DDB0C1256ED > Prima-facie, evidence, case. The Lectric Law Library s Lexicon. < Sovereignty over Pedra Branca/ Pulau Batu Puteh, Middle Rocks and South Ledge (Malaysia/Singapore). ICJ Webpage. < imasi/imasiframe.htm> Portugal v. Australia East Timor (Portugal v. Australia). ICJ Webpage. < Congo v. France Bibliography General Comment No. 12:The right to selfdetermination of peoples (Art. 1): 13 March Office of the High Commissioner for Human Rights. < f3c99406d528f37fc12563ed004960b4?opendocument> Cassel, Douglass. Universal Criminal Jurisdiction. Section of Individual Rights and Responsibilities, American Bar Association. < hr/winter04/universal.html> Certain Criminal Proceedings in France (Republic of the Congo v. France). ICJ Webpage. < Non-Self-Governing Territories Listed by General Assembly in < trust3.htm> UN Charter. < Diplomatic immunity [definition]. ediplomat New Diplomat. < diplomatic_immunity.htm> Popovski, Vesselin. Sovereignty as Duty to Protect Human Rights. UN Chronicle Online Edition, < 0404p16.html.> Universal Jurisdiction. Global Policy Forum. < univindex.htm.> 6