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The 2009 Judicial Activity of the International Court of Justice

Published online by Cambridge University Press:  27 February 2017

Jacob Katz Cogan
Jacob Katz Cogan*
Affiliation:
University of Cincinnati College of Law
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Extract

The International Court of Justice issued three judgments in 2009: a final decision, of January 19, in Request for an Interpretation of the Judgment of 31 March 2004 in the Case Concerning Avena and Other Mexican Nationals (Mexico v. United States of America) (Mexico v. United States); a final decision on the merits, of February 3, in Maritime Delimitation in the Black Sea (Romania v. Ukraine); and a final decision on the merits, of July 13, in Dispute Regarding Navigational and Related Rights (Costa Rica v. Nicaragua). In addition, the Court, on May 28, rejected a request by Belgium for the indication of provisional measures directed at Senegal in Questions Relating to the Obligation to Prosecute or Extradite (Belgium v. Senegal). The Court also issued orders fixing the time limits in several other pending cases.

Type
Current Developments
Information
American Journal of International Law , Volume 104 , Issue 4 , October 2010 , pp. 605 - 619
Copyright
Copyright © American Society of International Law 2010

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References

1 Request for Interpretation of the Judgment of 31 March 2004 in the Case Concerning Avena and Other Mexican Nationals (Mexico v. United States of America) (Mex. v. U.S.) (Int’l Ct. Justice Jan. 19, 2009). All the materials of the Court cited in this report are available on its Web site, http://www.icj-cij.org/, with the exception of the Yearbooks cited in note 81 infra.

2 Maritime Delimitation in the Black Sea (Rom. v. Ukr.) (Int’l Ct. Justice Feb. 3, 2009); see Lathrop, Coalter G., Case Report: Maritime Delimitation in the Black Sea (Romania v. Ukraine), 103 AJIL 543 (2009)Google Scholar.

3 Dispute Regarding Navigational and Related Rights (Costa Rica v. Nicar.) (Int’l Ct. Justice July 13,2009); see Lathrop, Coalter G., Case Report: Dispute Regarding Navigational and Related Rights (Costa Rica v. Nicaragua), 104 AJIL 454 (2010)Google Scholar.

4 Questions Relating to the Obligation to Prosecute or Extradite (Belg. v. Sen.), Provisional Measures (Int’l Ct. Justice May 28, 2009).

5 These include the limits for filing the initial proceedings in Application of the Interim Accord of 13 September 1995 (the former Yugoslav Republic of Macedonia v. Greece), for filing the countermemorial in Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Croatia v. Serbia), for filing the initial proceedings in Obligation to Prosecute or Extradite (Belgium v. Senegal), for filing additional pleadings in Certain Criminal Proceedings in France (Republic of the Congo v. France), and for filing a written statement by Georgia in Application of the Convention on the Elimination of All Forms of Racial Discrimination (Georgia v. Russian Federation).

6 The judgment was issued the day before the change of presidential administrations in the United States. While the specific timing of the Court’s decision could have been coincidental, outgoing U.S. legal adviser Bellinger, John B. III traveled to The Hague and back to hear the Court’s judgment, having received a six-hour extension of his tenure in that position to be present for the reading of the decisionGoogle Scholar. See Bellinger, John B. III, The Bush (43rd) Administration Google Scholar— Bellinger, John B. III (2005-2009), in Shaping Foreign Policy in Times of Crisis: The Role of International Law and the State Department Legal Adviser 135, 142 (Michael, P. Scharf & Paul, R. Williams eds., 2010)Google Scholar.

7 Request for Interpretation of the Judgment of 31 March 2004 in the Case Concerning Avena and Other Mexican Nationals (Mexico v. United States of America) (Mex. v. U.S.), para. 61(1) (Int’l Ct. Justice Jan. 19,2009). Note that under Article 60 of the ICJ Statute, any party may request that the Court construe a judgment if its meaning or scope is disputed.

8 Judges Parra-Aranguren, Shi, and Simma did not participate at any stage of the case. Judge Simma was the German co-agent and counsel in Germany’s LaGrand case against the United States and had not sat in Avena.

9 Request for Interpretation of the Judgment of 31 March 2004 in the Case Concerning Avena and Other Mexican Nationals (Mexico v. United States of America), para. 61(2), (3).

10 See Crook, John R., Contemporary Practice of the United States Relating to International Law, 102 AJIL 860 (2008)Google Scholar; Crook, John R., Contemporary Practice of the United States Relating to International Law, 103 AJIL 362 (2009)Google Scholar; Stephen Mathias, D., The 2008 Judicial Activity of the International Court of Justice , 103 AJIL 527, 535 – 36 (2009)Google Scholar.

11 Request for Interpretation of the Judgment of 31 March 2004 in the Case Concerning Avena and Other Mexican Nationals (Mexico v. United States of America) (Mex. v. U.S.), Provisional Measures, 2008 ICJ REP. 311, 326, para. 55 (July 16).

12 Id. at 325, para. 53.

13 Id. at 326, para. 55.

14 Id. at 334, 340, paras. 7, 25 (Buergenthal, J., diss. op.).

15 The Court noted that the provisional measures decision recognized that it “in no way prejudges any question that the Court may have to deal with relating to the Request for interpretation.” Request for Interpretation of the Judgment of 31 March 2004 in the Case Concerning Avena and Other Mexican Nationals (Mexico v. United States of America), para. 19 (quoting id., Provisional Measures, at 331, para. 79). The Court then stated that “in the present procedure it is appropriate for the Court to review again whether there does exist a dispute over whether the obligation in paragraph 153(9) of the Avena Judgment is an obligation of result” and also for it “to consider whether there is indeed a difference of opinion between the Parties as to whether the obligation in paragraph 153(9). . . falls upon all United States federal and state authorities.” Id., para. 20.

16 Id., para. 38.

17 Id. After the provisional measures order, both parties made written, but no further oral, statements.

18 Id., para. 44.

19 Id., para. 27; see also id., para. 47 (“ [F] ailing success within a reasonable period of time through the means chosen, [the United States] must rapidly turn to alternative and effective means of attaining that result.”).

20 Relatedly, the basis for paragraph 3 of the dispositif is unclear. It “[r]eaffirm[ed] the continuing binding character of the obligations of the United States of America under paragraph 153(9) of the Avena Judgment and t[ook] note of the undertakings given by the United States of America in these proceedings.” Id., para. 61(3). Only Judge Abraham voted against this paragraph. In his declaration, he explained that, in his view, this paragraph went beyond the Court’s Article 60 jurisdiction. Interestingly, he distinguished between language in the judgment’s reasoning and that in its dispositif:

Une chose est de faire figurer dans les motif d’un arrêt des remarques, constatations ou propositions juridiquement superfétatoires et pouvant apparaître comme dépassant les strictes limites de la compétence qu’exerce la Cour. Ce n’est jamais de très bonne méthode, mais il se peut que la Cour trouve parfois des raisons d’ordre pédagogique de procéder ainsi. . . .

. . . Par suite, tout ce qui figure au dispositif doit se tenir strictement dans les limites de la compétence de la Cour.

Id., Déclaration de M. le juge Abraham at 2; cf. Jean, d’Aspremont, The Recommendations Made by the International Court of Justice, 56 Int’l & Comp. L.Q. 185 (2007)Google Scholar (arguing that recommendations made by the Court to the parties reminding them of their obligations under human rights law, humanitarian law, and in the field of peace and security or suggesting that they engage in negotiations are not at odds with relevant rules, even in the absence of jurisdiction regarding the subject of the recommendations, and are appropriate unless they morph into definitive rulings); Hugh, Thirlway, The Recommendations Made by the International Court of Justice: A Sceptical View, 58 Int’l & Comp. L.Q. 151 (2009)Google Scholar (contesting this view).

21 Compare Anglo-Iranian Oil Co. (UK v. Iran), Interim Measures, 1951 ICJ Rep. 89 (July 5), with Anglo-Iranian Oil Co. (UK v. Iran), Preliminary Objection, 1952 ICJ Rep. 93 (July 22) (finding no jurisdiction); Nuclear Tests (Austl. v. Fr.; N.Z. v. Fr.), Interim Measures, 1973 ICJ Rep. 99, 135 (June 22), with Nuclear Tests (Austl. v. Fr.; N.Z. v. Fr.), 1974 ICJ Rep. 253, 457 (Dec. 20) (finding that the claim no longer had any object).

22 Request for Interpretation of the Judgment of 31 March 2004 in the Case Concerning Avena and Other Mexican Nationals (Mexico v. United States of America), paras. 15, 51.

23 Lathrop, supra note 2.

24 Jean-Pierre Cot (France) and Bernard H. Oxman (United States) were chosen by Romania and Ukraine, respectively. Judges Parra-Aranguren and Simma did not participate in the judgment.

25 As far as can be determined, until the Black Sea case the Court had never issued a unanimous judgment on the merits without at least one judge writing separately. Indeed, unanimous final judgments themselves are exceedingly rare, having occurred only in the following cases and advisory opinions: Minquiers and Ecrehos (Fr./UK), 1953ICJ REP. 47 (Nov. 17); South-West Africa—Voting Procedure, Advisory Opinion, 1955 ICJ Rep. 67 (June 7); Application for Revision and Interpretation of the Judgment of 24 February 1982 in the Case Concerning the Continental Shelf (Tunisia/Libyan Arab Jamahiriya) (Tunis./Libya), 1985 ICJ Rep. 192 (Dec. 10); Frontier Dispute (Burk. Faso/Mali), 1986 ICJ Rep. 554 (Dec. 22); Applicability of the Obligation to Arbitrate Under Section 21 of the United Nations Headquarters Agreement of 26 June 1947, Advisory Opinion, 1988 ICJ Rep. 12 (Apr. 26); Applicability of Article VI, Section 22, of the Convention on the Privileges and Immunities of the United Nations, Advisory Opinion, 1989 ICJ Rep. 177 (Dec. 15). In each of those instances, however, there were separate opinions. Unanimous decisions are somewhat less rare in the context of decisions on jurisdiction, admissibility, provisional measures, and intervention, having occurred approximately a dozen times (or close to twenty instances if each of the decisions in 2004 on preliminary objections in Serbia’s Legality of Use of Force cases is counted separately); but such rulings have almost always had separate opinions. Only three times before this case, it appears, have decisions been unanimous and issued without individual opinions. These pertained to orders made at the provisional measures stage or on applications to intervene. See United States Diplomatic and Consular Staff in Tehran (U.S. v. Iran), Provisional Measures, 1979 ICJ Rep. 7 (Dec. 15); Frontier Dispute (Burk. Faso/Mali), Provisional Measures, 1986 ICJ Rep. 3 (Jan. 10) ; Land and Maritime Boundary Between Cameroon and Nigeria (Cameroon v. Nigeria), Application to Intervene, 1999 ICJ Rep. 1029 (Oct. 21). There may have been a fourth instance, but we do not know whether the Court was unanimous in its limited decision granting Cuba’s application to intervene in Haya de la Torre, as the Court’s ruling on that issue was incorporated into the judgment’s reasoning and not noted in the dispositif. See Haya de la Torre (Colom./Peru), 1951 ICJ Rep. 71, 77 (June 13).

26 There have been and continue to be non-ICJ maritime boundary proceedings, including arbitrations. Indeed, in November and December 2009, Myanmar and Bangladesh filed declarations accepting the jurisdiction of the International Tribunal for the Law of the Sea to resolve their dispute concerning delimitation of their maritime boundary in the Bay of Bengal. Delimitation of the Maritime Boundary Between Bangladesh and Myanmar in the Bay of Bengal (Bangl./Myan.), Case No. 16 (ITLOS filed Dec. 14, 2009).

27 Jurisdiction could not be founded on the Law of the Sea Convention, as Ukraine had lodged an Article 298 declaration that opted out of the UNCLOS dispute resolution mechanism in cases, inter alia, of maritime delimitation. Interestingly, Ukraine, in its declaration under Article 287, did not choose the Court as its preferred forum in other categories of disputes concerning the Convention. Romania did not make a declaration in accordance with Article 287; hence, in the event of a dispute covered by the Convention, it is deemed to accept a form of arbitration.

28 Gilbert Guillaume served as judge ad hoc, appointed by Nicaragua. Costa Rica appointed Antônio Cançado Trindade as judge ad hoc; he was subsequently elected as a member of the Court and Costa Rica decided not to choose a new judge ad hoc. Vice President Tomka and Judge Simma did not participate in the oral proceedings or the Court’s judgment.

29 Dispute Regarding Navigational and Related Rights (Costa Rica v. Nicar.), para. 43 (Int’l Ct. Justice July 13, 2009).

30 Id, para. 156(1)(a).

31 Id., para. 156(l)(f).

32 Id., para. 156(3). Judge Sepúlveda-Amor’s separate opinion is of particular interest regarding what he describes as the “weak legal foundation” of the Court’s reasoning relating to the customary right to subsistence fishing. Id., Sep. Op. Sepülveda-Amor, J., at 1.

33 Id., para. 156(l)(d) (majority opinion).

34 Id., para. 156(l)(g).

35 Lathrop, supra note 3.

36 In the case of Nicaragua, the declaration accepted the jurisdiction of the Permanent Court of International Justice. Per Article 36(5) of the present Court’s Statute, that declaration is deemed to apply to the current court.

37 Dispute Regarding Navigational and Related Rights, para. 27.

38 Id., para. 28.

39 Haya de la Torre (Colom./Peru), 1951 ICJ REP. 71, 78 (June 13).

40 Corfu Channel (UK v. Alb.), Preliminary Objection, 1948 ICJ Rep. 15, 27 (Mar. 25).

41 Dispute Regarding Navigational and Related Rights, paras. 63–64.

42 Id., para. 64.

43 Id., para. 66.

44 Id., para. 70.

45 Other international tribunals also apply the concept in the context of treaty interpretation. See, e.g., WTO Appellate Body Report, United States—Import Prohibition of Certain Shrimp and Shrimp Products, para. 130, WT/DS58/AB/R (adopted Nov. 6, 1998).

46 Aegean Sea Continental Shelf (Gr. v. Turkey), 1978 ICJ Rep. 3, 32, para. 77 (Dec. 19). Generic terms are therefore treated like the substantive provisions of human rights treaties, which are typically considered living instruments. See Higgins, Rosalyn, Time and the Law: International Perspectives on an Old Problem, 46 Int’l & Comp. L.Q. 501, 517 – 18 (1997)Google Scholar. For another approach, see Fragmentation of International Law: Difficulties Arising from the Diversification and Expansion of International Law: Report of the Study Group of the International Law Commission, Finalized by Manti Koskenniemi, para. 478, UN Doc. A/CN.4/L.682 & Corr. 1 (Apr. 13 & Aug. 11, 2006), available at http://www.un.org/law/ilc/. See generally Gardiner, Richard K., Treaty Interpretation 172-73 (2008)Google Scholar.

47 Dispute Regarding Navigational and Related Rights, para. 67.

48 Id., Sep. Op. Skotnikov, J., paras. 2–10; see also Kasikili/Sedudu Island (Bots./Namib.), 1999 ICJ Rep. 1045, 1113, para. 2 (Dec. 13) ( Higgins, J., declaration) (defining a generic term as “a known legal term, whose content the parties expected would change through time”) (emphasis added)Google Scholar.

49 E.g., WTO Appellate Body Report, China—Measures Affecting Trading Rights and Distribution Services for Certain Publications and Audiovisual Entertainment Products, para. 396 n.705, WT/DS363/AB/R (adopted Jan. 19, 2010).

50 Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, opened for signature Dec. 10, 1984, 1465 UNTS 85 [hereinafter Convention Against Torture].

51 Questions Relating to the Obligation to Prosecute or Extradite (Belg. v. Sen.), Request for the Indication of Provisional Measures Submitted by the Government of the Kingdom of Belgium (Feb. 17, 2009).

52 Convention Against Torture, supra note 50, Art. 30(1); Declaration of Belgium (June 17, 1958); Declaration of Senegal (Dec. 2, 1985). The declarations are available at http://treaties.un.org/.

53 Not discussing the customary international law claim also allowed the Court to avoid examining Senegal’s Article 36(2) declaration.

54 Questions Relating to the Obligation to Prosecute or Extradite (Belg. v. Sen.), Provisional Measures, para. 40 (Int’l Ct. Justice May 28, 2009).

55 Id., para. 24.

56 Id., para. 64.

57 Id., paras. 38, 68.

58 Id., para. 68 (quoting ICJ Public Sitting at 16, CR 2009/11 (Eng. trans. Apr. 8, 2009)).

59 ICJ Public Sitting at 20, CR 2009/10 (Eng. trans. Apr. 7, 2009).

60 Questions Relating to the Obligation to Prosecute or Extradite, para. 73.

61 Id., para. 76. Judge Cançado Trindade was the lone dissenter. Two judges, Vice President Tomka and Judge Keith, did not participate in the proceedings. Belgium designated Philippe Kirsch (Canada) and Senegal designated Serge Sur (France) as judges ad hoc.

62 Id., para. 48.

63 In response to a question from Judge Simma, Belgium hinted at its thinking on these matters, invoking General Assembly Resolution 3074 (XXVIII) (Dec. 3,1973), on extradition and punishment of persons guilty of war crimes and crimes against humanity; the International Law Commission’s Draft Code of Crimes Against the Peace and Security of Mankind, [1996] 2 Y.B. Int’l L. Comm’n 17, UN GAOR, 51st Sess., Supp. No. 10, UN Doc. A/51/10 (1996); and numerous Security Council resolutions. See ICJ Public Sitting, supra note 59, at 7.

64 See, e.g., Decision on the Hissène Habré Case and the African Union, AU Doc. Assembly/AU/Dec. 127 (VII) (July 1 – 2, 2006); Committee Against Torture, Communication No. 181/2001, UN Doc. CAT/C/36/D/181/ 2001 (May 19, 2006) (decision on Senegal).

65 The Commission is currently considering the topic “The Obligation to Extradite or Prosecute (aut dedere aut judicare).” See Report of the International Law Commission, Sixty-first Session, at 342, UN GAOR, 64th Sess., Supp. No. 10, UN Doc. A/64/10 (2009).

66 ICJ Practice Directions, as amended Jan. 20, 2009; ICJ Press Release 2009/8 (Jan. 30, 2009).

67 Report of the International Court of Justice 12, para. 26 (2009), UN GAOR, 64th Sess., Supp. No. 4, UN Doc. A/64/4 (2009); see abo id. at 63, para. 232.

68 ICJ Press Release 2009/12 (Feb. 10, 2009).

69 ICJ Press Release 2009/11 (Feb. 6, 2009).

70 For an assessment of Judge Higgins’s term on the Court, including her service as president, see Thomas, Buergenthal, Rosalyn Higgins: Judge and President of the International Court of Justice (1995–2009), 22 Leiden J. Int’l L. 703 (2009)Google Scholar.

71 Hisashi, Owada, ICJ President, Speech to the UN General Assembly 1 (Oct. 29, 2009)Google Scholar. For the General Assembly’s debate on the Court’s annual report, which followed President Owada’s speech, see UN Doc. A/64/PV.30 (Oct. 29, 2009).

72 Speech, supra note 71, at 6.

73 Hisashi, Owada, ICJ President, Speech to the Sixth (Legal) Committee 1 (Oct. 30, 2009)Google Scholar.

74 Id. at 2.

75 Id. at 6.

76 Hisashi, Owada, ICJ President, Statement to the Security Council 4 (Oct. 29, 2009)Google Scholar.

77 Id. at 5.

78 Id. at 9.

79 Id. at 10.

80 See, e.g., Official communiqué of the 6002nd (Closed) Meeting of the Security Council, UN Doc. S/PV.6002 (Oct. 28, 2008); Official communiqué of the 5557th (Closed) Meeting of the Security Council, UN Doc. S/PV.5557 (Oct. 27, 2006); Official Communiqué of the 4212th Meeting of the Security Council, UN Doc. S/PV.4212 (Oct. 31, 2000) (held in private).

81 See ICJ Press Release 2000/37 (Nov. 1, 2000); ICJ Press Release 2001/30 (Oct. 30, 2001); ICJ Press Release 2002/30 (Oct. 30, 2002); 2000-2001 ICJ Y.B. 335; 2001-2002 ICJ Y.B. 322.

82 See Official Communiqué of the 6208th (Closed) Meeting of the Security Council, UN Doc. S/PV.6208 (Oct. 29, 2009).

83 The Court did not issue a press release or a media advisory concerning President Owada’s briefing of the Security Council.

84 See Report of the International Court of Justice, supra note 67, at 32, 33, paras. 106, 113.