Does the ICJ Have Binding Jurisdiction Over the Guyana-Venezuela Border Controversy? Probably, But Maybe Not

by Julian Ku

Last month, the UN Secretary General António Guterres announced that he was referring the longstanding border dispute between Guyana and Venezuela to the International Court of Justice. This decision was made after a long period of mediation by various UN Secretaries-General dating back to 1990.  But as a ICJ jurisdiction nerd, I am curious what the basis of the Secretary-General’s power to refer the dispute to the ICJ is.

It is based on the 1966 Geneva Agreement between the United Kingdom (which was sovereign over Guyana at the time) and Venezuela. That agreement specified a long process of study via a joint commission and then noted that, if agreement on the commission’s report failed, the following process should be undertaken according to Article IV(2):

If, within three months of receiving the final report, the Government of Guyana and the Government of Venezuela should not have reached agreement regarding the choice of one of the means of settlement provided in Article 33 of the Charter of the United Nations, they shall refer the decision as to the means of settlement to an appropriate international organ upon which they both agree or, failing agreement on this point, to the Secretary-General of the United Nations. If the means so chosen do not lead to a solution of the controversy, the said organ or, as the case may be, the Secretary-General of the United Nations shall choose another of the means stipulated in Article 33 of the Charter of the United Nations, and so on until the controversy has been resolved or until all the means of peaceful settlement there contemplated have been exhausted.

There is no doubt that this provision has been invoked, and the Secretary General’s announcement indicated that he deems “the International Court of Justice as the means to be used for the solution of the controversy.”  Article 33 of the UN Charter does list “negotiation, enquiry, mediation, conciliation, arbitration, judicial settlement, resort to regional agencies or arrangements, or other peaceful means of their own choice” as options for “pacific settlement of disputes.”  The ICJ would seem to qualify as a “judicial settlement.”

The problem is that it is not clear that Article IV of the Geneva Agreement automatically makes the ICJ’s decision legally binding. Neither Guyana nor Venezuela have accepted the compulsory jurisdiction of the ICJ, so there is no independent basis for jurisdiction.  The Geneva Agreement, I suppose, should be read as delegating to the UN Secretary-General the power to refer their dispute to “judicial settlement.” But it is not clear whether this broad delegation includes any and all forms of dispute settlement, or that those settlements would be binding.

The most natural reading, I concede, is that Venezuela is indeed bound to abide by any ICJ ruling in this case. But I wouldn’t be surprised if Venezuela tries to contest the jurisdiction of the ICJ, or the binding nature of any decision it issues.

Happy Birthday to the International Court of Justice!

by Julian Ku

We would be remiss here at Opinio Juris if we did not mark today’s 70th anniversary of the opening of the International Court of Justice on 18 April 1946 at the Peace Palace in The Hague.  I have been fairly critical of the ICJ over the years. Way back in 2005, I complained about the ICJm22133338_241x164-international-court-of-justice‘s molasses-like deliberations.  (I also inadvertently declared an ICJ member dead when he was (and still is) very much alive.)  But I do think the ICJ is an important and interesting participant in the development of international law, even if it is not as important as it would like to be.

Having said all that, the ICJ is an ongoing experiment in the use of permanent international judicial institutions to resolve state-to-state disputes, and it has had its fair share of successes over the years.  So let’s take today and celebrate its 70th birthday by viewing films from its opening day and interviews with its current registrar.  We can save our grousing for tomorrow and other days.

ICJ Rules (14-2) It Has Jurisdiction to Hear Bolivia’s Claim Against Chile

by Julian Ku

So the ICJ ruled today (14-2) that the Court does have jurisdiction to hear Bolivia’s claim that Chile has violated its legal obligation to negotiate “sovereign access to the sea” despite a 1904 Treaty that had settled the borders between the two countries.  I have been super-critical of Bolivia’s claim, going so far as to suggest there was a slam-dunk case against admissibility and jurisdiction since the basis of jurisdiction, the Bogotá Treaty, excludes cases where dispute has been settled by “arrangement” between the parties.  I suggested on Tuesday that perhaps the Court would take the case after all, despite the weaknesses of Bolivia’s case, and I received some tough criticism from commenters suggesting Bolivia has a very strong case for jurisdiction.

I still think Bolivia (and the commenters) are wrong, but obviously 14 judges of the ICJ disagree with me.  I’ve said my piece, so I won’t beat a dead horse (for too much longer).  I will only excerpt below Professor Harold Koh’s pithy explanation (from his oral presentation) as to why granting jurisdiction here is going to lead to lots of bad consequences.

10. Under Bolivia’s novel theory, by clever pleading, applicants could manufacture jurisdiction in this Court regarding previously settled matters. And this Court can expect to hear many more preliminary objection sessions like the one yesterday, replete with snippets of speeches, ministerial statements, and diplomatic exchanges as reasons to avoid the jurisdictional bar of Article VI. Notwithstanding Mr. Akhavan’s effort to underplay, Bolivia’s theory would doubtless encourage unilateral attempts to re-litigate the continent’s history and borders. The careful limits established by the Pact of Bogotá would become increasingly meaningless.

11. Mr. President, Members of the Court, the stakes here are larger than the interests of just these two Parties. The two treaties relevant to jurisdiction are part of a larger treaty network that binds Bolivia and Chile. The Pact of Bogotá succeeded in barring existing territorial settlements and other settlement matters from being reopened at the sole initiative of one State. But as Sir Daniel recounted, during the nineteenth and twentieth centuries, at least 12 separate treaties Bolivia settled disputed boundaries not just with Chile, but also with all four of its other neighbours106. May Bolivia now come before this Court to seek an order directing renegotiation of all of those other borders as well? And even if Bolivia did not, could those other regional partners also come to the Court seeking an order directing renegotiation of their borders?

Bolivia’s Ridiculously Weak ICJ Case Against Chile

by Julian Ku

Last week, the government of Bolivia filed an application in the International Court of Justice against Chile arguing that Chile has breached its “obligation to negotiate in good faith and effectively with Bolivia in order to reach an agreement granting Bolivia a fully sovereign access to the Pacific Ocean.”

Is it just me, or is this the weakest case ever filed at the ICJ?   I am baffled as to how there could be compulsory jurisdiction under the Bogota Treaty, whose relevant provision reads:

“…the High Contracting Parties declare that they recognize, in relation to any other American State, the jurisdiction of the Court as compulsory ipso facto, without the necessity of any special agreement so long as the present Treaty is in force, in all disputes of a juridical nature that arise among them concerning: a) The interpretation of a treaty; b) Any question of international law; c) The existence of any fact which, if established, would constitute the breach of an international obligation; d) The nature or extent of the reparation to be made for the breach of an international obligation”.

According to Bolivia, the legal dispute exists because “Chile denies its obligation to enter into negotiations regarding Bolivia’s fully sovereign access to the Pacific Ocean.”  Ergo, there is a dispute over whether Chile has an international obligation to negotiate and whether it has breached this obligation that it denies having.

But this is circular.  Bolivia is the one claiming there is an obligation, and the mere fact that Chile denies the existence of the obligation can’t by itself create the basis for jurisdiction.  Bolivia needs to point to some source which imposes a legal obligation  on Chile an obligation to negotiate in good faith on this issue.  The following appears to be Bolivia’s best effort to find such an obligation:

17. The Bolivian note of 1 June 1950, invoking the different declarations and commitments formulated by Chile, proposed: “for the Governments of Bolivia and Chile to formally enter into a direct negotiation to satisfy Bolivia’s fundamental need for obtaining an own and sovereign access to the Pacific Ocean, thus resolving the problem of Bolivia’s confinement, on the basis of natural conveniences and the true interests of both countries”

18. The Chilean note in response, dated 20 June 1950, states that: “( … ) my Government ( … )it is willing to formally enter into a direct negotiation aiming at finding the formula which would make it possible to grant Bolivia an own and sovereign access to the Pacific Ocean and for Chile to obtain compensations that are not of a territorial nature and that effectively take into account its interests”

Apparently, those negotiations never worked out.  But there is an even more fundamental point. The 1950 Chilean note states that the government “is willing to formally enter into a direct negotiation”.  It doesn’t say that the Chilean government obligates itself to negotiate (whatever that would mean anyway).   The same non-obligatory language is true of a 1975 statement that Chile “would be prepared to negotiate with Bolivia the cession of a strip of land north of Arica up to the Linea de la Concordia” (emphasis added).  Even if there was a treaty provision that explicitly obligated the parties to negotiate in good faith, I would be skeptical.  But there isn’t even that.

Maybe I’m missing something, but this case looks like a sure loser on admissibility. It looks like it is going to be a major waste of time for the ICJ.  I admit I am not an expert on the relevant treaties here, or on this dispute, but if Bolivia’s application reflects its best arguments, then I can’t see how the ICJ could possibly allow this application to proceed.  How would they ever avoid future cases where one party asks another party to negotiate, and then complains when that party doesn’t agree to do so.  This should be a slam-dunk unanimous admissibility dismissal for the ICJ. I just hope they don’t need more than a year to figure this out. (If someone out there has a good defense of Bolivia’s case for jurisdiction, would love to hear about it.)

The ICJ’s One Clear Advantage over the U.S. Supreme Court

by Julian Ku

Longtime readers know that I have often criticized (unfairly in many readers’ eyes) the snail’s pace of dispute resolution before the International Court of Justice.  I respect the ICJ as an institution, but I have never thought it has lived up to its potential as the “principal judicial organ” of the United Nations.  On the other hand, I will give credit where credit is due.  Unlike the U.S. Supreme Court, which is still battling over whether audio recordings of its oral arguments can be distributed live, the International Court of Justice has done a nice job putting video of its oral hearings online.  Like the International Tribunal for the Law of the Sea, the ICJ is not shy about putting videos online for the world to see and gape over.

Now, like the U.S. Supreme Court oral arguments, these arguments are not exactly the stuff of thrilling drama.  I admit I did not make it through the entire six hours of video on the recent Cambodia-Thailand Temple of Preah Vrear case (I made it through about six minutes, to be honest).  But it helps everyone who studies or practices before the ICJ, or simply wants to understand the ICJ, to be able to see the various submissions, the different orders, and the oral arguments, and the final judgment online.

Indeed, the ICJ arguments (video here) in the Temple of Preah Vrear case is getting pretty good play in Thailand, if these articles in the English language Thai paper The National are any indication (all of the top articles at this hour are about the ICJ hearing).  Indeed, one of the Thai government’s attorneys, Alina Miron, an associate of Thai counsel Alain Pellet, has become a social media celebrity in Thailand due solely to her performance during the oral argument.  It was the quality of the arguments, to be sure, but I have a feeling the fact that her personal appearance may have also made her a star.

Obviously, turning our attorneys or justices into celebrities is not important, but even so, the US Supreme Court could take a lesson from the ICJ here.  Sure, it may be impressive to shroud your processes and arguments in obscurity to make it seem more mysterious, but I don’t think it serves the long term interests of the institution.  Let the cameras in!

Japan Ponders Sending Its Island Disputes to the ICJ

by Julian Ku

The Asahi Shimbun is running a couple of interesting features on the International Court of Justice and Japan’s relationship with it.  One essay features interviews with Japan’s current and former members of the ICJ: President Owada and former vice-president Oda.  The other explores what might happen if Japan were to somehow send its disputes with China and Korea to the ICJ.

“Since we are already facing such an explosive situation, it would probably be good for Japan to take action and suggest that China file a claim–and then respond in court,” said Yoshio Otani, 73, an honorary professor at Hitotsubashi University.

To date, however, the Chinese side has made no move to file a claim unilaterally.

“The stances of both countries with regard to the Diaoyu (Senkaku) Islands are too far apart to be able to bring the problem to a third party, including to the ICJ, for resolution,” said Xinjun Zhang, 45, an associate professor at Tsinghua University in Beijing. “The issue of territory, even domestically, is intertwined with ethnic pride. It is a very sensitive matter. Currently, it would be better to think about how to manage the issue rather than try to resolve it.”

I am not sure I agree with Prof. Zhang that the stances of the two countries are “too far apart” to go to a third party, since that is kind of always the case in these kinds of disputes.  But I do agree that it is hard to imagine the China-Japan dispute going to the ICJ.

Having said that, it might be smart politics for Japan to announce its willingness to take the Diaoyutai/Senkaku disputes to the ICJ, and put the onus on China to reject the offer. Japan is already becoming ICJ-savvy in the upcoming Australia Whaling case (hearing finally scheduled for June), they might feel like the ICJ is a good forum for them.   In our panel last week at ASIL, Stephanie Kleine-Ahlbrandt suggested that that Japan had already privately made such an offer, and had been turned down.  I wonder if it is now time for Japan to go public with this offer.  Then again, maybe it should sit still and wait and see how the Philippines arbitration turns out, since China has not so suffered any serious damage from their non-response to that claim.

Whale Wars Update: The ICJ Is Not Exactly Rushing to Issue a Judgment

by Julian Ku

I was struck by this line from an editorial in an Australian paper about the latest clashes between Sea Shepherd (e.g. the Ninth Circuit’s “pirates”) and Japanese whalers:

[T]hat the International Court of Justice is expected to hear Australia’s case to shut down the Antarctic hunt later this year.

Three years after the case began,  this hearing can’t come soon enough.

I agree.  The ICJ judgment will not come down anytime before the spring of 2014.  I know this is a complicated case but the timetable for this ICJ decision is really unacceptable.  The original application was filed in 2010. If everyone is lucky, a decision will be issued a year from now, four years after the original application. (It could be longer).  (I have been beating this dead horse for years, but I think I am still right about it).

No doubt part of the problem is that the parties (Australia and Japan) have not sought to expedite this process.  The original scheduling order gave each party ten months to make their written submissions.  So Australia filed their submission in May 2011, and Japan had until March 2012 to file their response.
I suppose part of the idea behind this slow process is to give the dispute time to cool and perhaps even to resolve itself.  But in this case, the dispute has really only intensified. Delay is not really serving anyone’s purpose here.

The Ever-Expanding “Provisional Measures” Authority of the ICJ

by Julian Ku

The International Court of Justice issued a “provisional measures” order today in a dispute between Thailand and Cambodia over a World Heritage temple located near or on the boundary between the two nations.  The request for provisional measures was brought by Cambodia, which sought the withdrawal of Thai troops from around the temple.  The ICJ granted this request, but went much farther.  In a somewhat remarkable order, the ICJ drew a “demilitarized zone” around the temple which excludes both Thai and Cambodian military forces.

61. Whereas the area of the Temple of Preah Vihear has been the scene of armed clashes between the Parties and whereas the Court has already found that such clashes may reoccur; whereas it is for the Court to ensure, in the context of these proceedings, that no irreparable damage is caused to persons or property in that area pending the delivery of its Judgment on the request for interpretation; whereas, moreover, in order to prevent irreparable damage from occurring, all armed forces should be provisionally excluded from a zone around the area of the Temple, without prejudice to the judgment which the Court will render on the request for interpretation submitted by Cambodia; and whereas, therefore, the Court considers it necessary, in order to protect the rights which are at issue in these proceedings, to define a zone which shall be kept provisionally free of all military personnel, without prejudice to normal administration, including the presence of non-military personnel necessary to ensure the security of persons and property;

63. Whereas both Parties, in order to comply with this Order, shall withdraw all military personnel currently present in the zone as thus defined; whereas both Parties shall refrain not only from any military presence within that provisional demilitarized zone, but also from any armed activity directed at the said zone;

As a practical matter, a provisional DMZ seems a sensible way to proceed.  But as a legal matter, there are grave doubts about the ICJ’s authority to make such an order.  The ICJ was quite seriously divided, with the ICJ’s President and its two newest members providing perhaps the most serious criticisms of the scope of the ICJ’s authority under its “provisional measures” power.  Judge Xue of China and Judge Donoghue of the United States, along with President Owada of Japan, all criticized the “DMZ” power (see here for links to all of the opinions).  What troubles all of these dissenters is the fact that the provisional DMZ actually goes beyond the disputed territories and, in essence, orders each nation to withdraw military forces from their own undisputed sovereign territory (check out the cool “sketch map” on p. 17).

I won’t go into any further depth at this point. It all turns on analysis of the ICJ’s authority to issue provisional measures that I have little expertise on. I will only note that since the ICJ only decided in 1999 that provisional measures were binding, it is somewhat remarkable that this same doubtfully binding provision also gives the ICJ the power to order states to withdraw military forces from their own territories.

Whale Wars: Is the Threatened Australia ICJ Lawsuit Just Politics?

by Julian Ku

Two different but interesting views of Australia’s threat to bring Japan to the ICJ over whaling.

Over at The Jurist, Don Rothwell of Australian National University provides some background and legal context for Australia’s lawsuit. As I understand it, Australia could claim that Japan is actually violating Australia’s 200 mile exclusive economic zone (assuming certain Australian Antarctic claims were accepted).  But it seems more likely that Australia will try to make a claim under the 1946 International Convention for the Regulation of Whaling. As I’ve suggested, this seems a very tough case to make, and Japan may get the IWC to alter its rules anyway.

Over at the Australian, Greg Sheridan points out that the Japanese government is not taking Australia very seriously on this issue, and sees it as essentially a domestic political matter for Australians.  And he goes on:

As well, observers of all stripes are dumbfounded at the Rudd government’s decision to blindside Japan’s Foreign Minister Katsuya Okada just before his visit to Australia. Canberra did this by announcing, on the eve of Okada’s arrival in Australia and without any warning to the Japanese, that it had decided to take Japan to the International Court of Justice over whaling. There is not the slightest chance of this court action succeeding. To insult Okada, the most pro-Australian member of Tokyo’s core leadership, in this manner was extremely foolish.

Emphasis added. I think Sheridan is not far wrong. Unless Australia is going to make the EEZ argument, it doesn’t seem like it has a very strong case.  And even if they somehow win, there is very little chance of Japan complying with the ICJ order.

Whale Wars: Australia Gives Japan One More Chance to Settle

by Julian Ku

I had almost forgotten about this ongoing dispute between Australia and Japan over whaling, which has been going on for years (and which I first noted on this blog way back in 2005).  The Australian Prime Minister warned Japan yesterday that if whaling doesn’t stop by November, Australia will take Japan to court, either the ICJ or the International Tribunal for the Law of the Sea.  Australia seems ready to go. It has its evidence lined up and appears to have James Crawford on board to argue its case before either the ITLOS or the ICJ.  I wouldn’t hold my breath on a quick decision on this, but it would be an interesting case nonetheless. As far as I know, Japan has never faced a case in the ICJ. I wonder what its reaction would be.