Sore Loser? Colombia’s Unpersuasive Accusations Against the Chinese ICJ Judge

by Julian Ku

ABC’s Univision reports on this op-ed by former Colombian foreign secretary and former vice justice minister, which seems to accuse shadowy Chinese business interests of influencing the recent ICJ decision in Nicaragua v. Colombia.  Here is the crux of the alleged wrongdoing (or at least shady conduct):

…in November 2012, the ICJ issued a ruling that certified that most of the contended area belonged to Colombia. Nicaragua however, was awarded an area of nearly 7,500 square kilometer.

Nicaragua needed part of the awarded area to be able to build the massive inter-oceanic canal the government is envisioning, according to Sanín and Ceballos. The canal is set to be built in 10 years at an estimated cost of nearly $30 billion.

The alleged problem is that one of the judges who delivered the ICJ’s decision is Xue Hanqin, a Chinese national who apparently knew the Nicaraguan ambassador to the court from a previous work position. The Colombians argue that Xue Hanqin probably knew about the canal and should have recused herself because her government had a major interest in the ruling’s outcome. Since she didn’t there are growing suspicions that she might have been working to advance China’s economic and geopolitical agenda.

My Spanish is even vaguer than my French, but, accepting the Univision description as accurate, than this seems like a weak attempt to discredit the ICJ decision.  To be sure, it is possible that Judge Xue knew the Nicaraguan ambassador from her time as a diplomat, and it is also quite likely that she knows about the Chinese government’s interest in a Nicaraguan canal.

But none of that seems to be close to enough to require a recusal or its equivalent.  To be sure, the ICJ’s practice on recusal is pretty lax, and could use some further development.  But even if you think that the Egyptian judge should have been recused from the Israeli Wall advisory opinion, at least the accusation there was about statements made, or views held, by the individual judge.  It was not a claim that he should recuse himself because the Egyptian government opposed the Wall.

But the Colombians are essentially saying that because the Chinese government would have favored the Nicaraguan case, and had a material interest in a favorable outcome, its judge should have recused herself.  That could not be the rule, since it would require recusals all the time.  Now, if they had evidence Judge Xue held shares in a Chinese company that was building the canal, that would be something.  But there is no such accusation, as far as I can tell. (Note: Colombia did not even request her recusal).

Is Judge Xue biased? I suppose she might have been. But she would not have been much more biased than any of the other judges on the ICJ.  With 15 judges, her bias could not have been all that important in the ICJ’s unanimous opinion anyway.

http://opiniojuris.org/2013/05/03/sore-loser-colombias-unpersuasive-accusations-against-the-chinese-icj-judge/

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