11 Contribution of ICJ Part – 1

Prof. Nitin Gomber

Introduction

Article 38(1)(d) of the Statute of the International Court of Justice also establishes ‘judicial decisions’ as one of the sources of law. At the same time, the said article very clearly refers to judicial decisions as being merely ‘a subsidiary means for the determination of rules of law.’ The reason for the foregoing has already been discussed earlier: a rule stated in a judicial decision will not assert itself as a law because the judge stated it, but because the judge considers that it derives from one of the principal sources of law viz. treaties, customs and general principles of law. From the foregoing it could be concluded that judges do not make law, however, at the same time, their contribution to the corpus of law by way of derivation from the major sources of law cannot be questioned either. Nevertheless, this Judge made law is considered a subsidiary source of law.

Having said that, States involved in the dispute, or their counsel, often cite judicial precedents and judges’ opinions to support their cause. At the same time, arbitrators and individual judges of the ICJ also do not hesitate to refer to its own judicial opinions. However, the Court itself usually avoids referring its own judicial pronouncements as a solid foundation for its own decision and reasons out each case on its own.

Development of Human Rights Law through Judicial Decisions

From the phraseology used in Article 38(1)(d), it is clear that judicial decisions are not confined to international decisions only. Decisions of national courts may also be looked at as a subsidiary source of law. In this module, we will first look at the jurisprudence of the International Court of Justice. In later modules, however, we will look at judicial decisions from the International Criminal Court and individual nations that have helped in the evolution of international human rights law.

Role of the ICJ

Before analysing the role of ICJ in contributing the international human rights regime, it must be borne in mind the inherent limitations the ICJ faces in making a significant contribution to international human rights law. According to Article 34 of the Statute of the ICJ, “only states may be parties in cases before the Court.” Given that only states may institute a proceeding in the ICJ, it represents an obvious obstacle for the Court towards contributing and developing international human rights regime as by their very nature such rights are concerned with the individual.

In addition, since the majority of the human rights treaties have their own dispute settlement mechanism, the situations in which the Court has a deal with human rights issues have arisen mainly in the context of general international law and non-human rights specific treaties or provisions, which nevertheless have raised such issues. The cases decided by the ICJ, whether through its contentious jurisdiction or through advisory jurisdiction, are based on various themes of human rights, namely right of self-determination, genocide, right to asylum, diplomatic protection, consular relations and treatment of the human rights rapporteurs. The discussion on these cases is spread over three modules. Let us look at some of these cases which have shaped the international human rights regime as it exists today:

Reservations to the Convention on the Prevention and Punishment of the Crime of Genocide (Advisory Opinion of 28 May 1951)

The General Assembly was concerned with the fact that some States had made certain reservations to the Convention on the Prevention and Punishment of the Crime of Genocide, which was objected to by other States. Accordingly, the General Assembly asked the ICJ for an advisory opinion on the legal effects of reservations to the Genocide Convention. The said request contained four questions, primarily dealing with the effect on the membership of a State that put in a reservation to some provisions of the Genocide Convention at the time of expressing consent to be bound by it.

Before we move on to the observations made by the ICJ in this matter, it is important to note that the ICJ being wary of the interpretations that could be given to its decisions, itself limited the application of its findings in this opinion by stating, “The questions thus having a clearly defined object, the replies which the Court is called upon to give them are necessarily and strictly limited to that Convention.” Therefore, even though the ICJ exclusively limited its observations to the Genocide Convention, the impact of these over the regime of international human rights regime has been phenomenal.

First, the Court observed that “The object and purpose of the Convention imply that it was the intention of the General Assembly and of the States which adopted it that as many States as possible should participate… The object and purpose of the convention thus limit both the freedom of making reservations and that of objecting to them.1” Now, by focussing on the very object and purpose of the Convention, the ICJ paid attention to the very raison d’être of a human rights treaty, namely that of protecting the human rights of individuals or groups of individuals vis-à-vis the State. Moreover, this implies that the preamble of all treaties could possibly be looked at to derive a universal recognition of an international norm.

Second, the Court went on to observe that, “The origins of the Convention show that it was the intention of the United Nations to condemn and punish genocide as a crime under international law involving a denial of the right of existence of entire human groups, a denial which shocks the conscience of mankind and results in great losses to humanity, and which is contrary to moral law and to the spirit and aims of the United Nations. The first consequence arising from this conception is that the principles underlying the Convention are principles which are recognized by civilized nations as binding on States, even without any conventional obligation… The Genocide Convention was therefore intended by the General Assembly and by the contracting parties to be definitely universal in scope…”

The Court thus introduces new concepts to protect the international human rights regime viz. “shocks the conscience of mankind,” “results in great losses to humanity,” “contrary to moral law,” “contrary to the spirit and aims of the United Nations,” among others. The Court then goes on to assess the consequence of these conceptions and concludes that the principles underlying the Genocide Convention are principles which are recognized by civilised nations as binding on States, even without any conventional obligation. In a way, the ICJ pointed out that if any reservation is made by a State which is contrary to the customary nature of the principles enshrined in the Convention, then such a reservation would be held to be null and void. In effect, the Court widened the possible effect of a Convention concerned with the protection of mankind.

Asylum Case (Columbia v. Peru, Judgment of 20 November 1950)

Criminal proceedings were initiated on charges of military rebellion against Mr de la Torre, the leader of the American People’s Revolutionary Alliance party, for the instigation and direction of that failed rebellion in Peru. On January 3, 1949 while being sought by the Peruvian authorities, diplomatic asylum was granted to Mr de la Torre by the Colombian ambassador in Lima who requested for a safe custody for Mr de la Torre to leave the country but was rejected by the Peruvian authorities who had charged Mr de la Torre for committing common crimes and therefore not entitled to the benefits of asylum. On being unsuccessful in deciding the matter, both the Peruvian and the Colombian government decided to take the matter to ICJ.

The court while deciding the question of ‘granting asylum’ first attempted to explain the term in following words:

The grant of asylum is not an instantaneous act which terminates with the admission, at a given moment, of a refugee to an embassy or legation. Any grant of asylum results in, and in consequence logically implies, a state of protection; the asylum is granted as long as the continued presence of the refugee in the embassy prolongs this protection. This view, which results from the very nature of the institution of asylum, is further confirmed by the attitude of the Parties during this case.

With respect to Peru’s claim that that the diplomatic asylum had been granted to Mr de la Torre in violation of the Havana Convention because he was accused not of political offence but of a common crime, the Court held that Peru failed to establish that military rebellion in itself constituted a common crime which could have possibly made Mr de la Torre an accused. On Peru’s second claim that urgency required to justify asylum under the Havana Convention was absent in the given situation, the Court ruled that the substantial justification behind granting asylum is the imminence or persistence of a danger to the person of the refugee. In analyzing what could be a dangerous situation as given under the Havana Convention that can justify the asylum, the court held that:

In principle, it is inconceivable that the Havana Convention could have intended term ‘urgent cases’ to include the danger of regular prosecution to which the citizens of any country lay themselves open by attacking the institutions of that country; nor can it be admitted that in referring to ‘the period of time strictly indispensable for the person who has sought asylum to ensure in some other way his safety’, the Convention envisaged protection from the operation of regular legal proceedings.

…

In principle, therefore, asylum cannot be opposed to the operation of justice. An exception to this rule can occur only if, in the guise of justice, the arbitrary action is substituted for the rule of law. Such would be the case if the administration of justice were corrupted by measures clearly prompted by political aims.

Protection here cannot be constructed as protection against the regular application of the law. Therefore, Havana Convention cannot be said to justify granting of asylum to any person prosecuted for political offenses, either in the course of revolutionary events or in the more or less troubled times that follow, for the sole reason that it must be assumed that such events interfere with the administration of justice.

Therefore, grant of asylum by the Colombian ambassador in Lima to Mr de la Torre was incorrect and not justified as ‘urgency’ according to the provisions of the Havana Convention.

Haya de la Torre Case (Columbia v. Peru, Judgment of 13 June 1951)

When the judgment in the above-mentioned case, Asylum Case (Columbia v. Peru) was granted by the ICJ on November 20, 1950, the dispute arose between Columbia and Peru with respect to its execution. The dispute arose, as Peru demanded Columbia to surrender Mr de la Torre according to the ICJ decision, but the latter refused stating that such surrender would be contrary to the provisions of the Havana Convention and decision of ICJ given on November 20, 1950. So now that matter was again before ICJ to interpret its judgment of November 20, 1950. The parties questioned the court on the manner in which asylum could be terminated.

The court stated that such question does not require judicial consideration; rather it requires the parties to make a choice amongst various options depending upon grounds of practicability or political expediency. There was no provision in the Havana Convention providing the manner in which an asylum could be terminated for cases in which the asylum had not been regularly granted and where the territorial State had not requested the departure of the refugee. This silence in the Convention was held to convey that such matters should be decided by the parties themselves according to their convenience and political exigency.

In the given situation the court held that Mr la de Torre was a political offender, and the asylum had to end, but that the Government of Colombia was under no obligation to bring this about by surrendering the refugee to the Peruvian authorities as surrender was not the only manner to terminate the asylum. The court will not divert from its judicial function and suggest any mode termination. The parties have to solve this dispute peacefully through negotiations.

Western Sahara (Advisory Opinion of 16 October 1975)

General Assembly vide its resolution 3292 requested the ICJ to give an advisory opinion on the issue of Western Sahara. The advisory opinion was sought by the General Assembly to plan out its steps towards supporting decolonization of Western Sahara from conflicting claims by the Kingdom of Morocco and Mauritania. The two questions raised by GA for consideration by ICJ are:

• 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 negative, then the second question was:

• What were the legal ties of this territory with the Kingdom of Morocco and the Mauritanian entity?

In giving its legal opinion, the Court considered the Decolonization Declaration of 1960 which contemplated three possibilities for the decolonization process of non-self-governing territories, namely (a) emergence as a sovereign independent State; (b) free association with an independent State; or (c) integration with an independent State.

In court’s opinion, the two questions proposed by the General Assembly were based on the premise of ‘self-determination.’

The court answered the first question in negative. It reached this conclusion on applying the principle of terra nullius to the current fact situation. It stated that terra nullius means:

The expression ‘terra nullius’ was a legal term of art employed in connection with ‘occupation’ as one of the accepted legal methods of acquiring sovereignty over the territory. ‘Occupation’ being legally an original means of peaceably acquiring sovereignty over territory otherwise than by cession or succession, it was a cardinal condition of a valid ‘occupation’ that the territory should be terra nullius

– a territory belonging to no-one – at the time of the act alleged to constitute the occupation.

In this case, before Spain colonized Western Sahara, it was occupied by people who were socially and politically organized in tribes and were represented by heads. Therefore, when Spain proceeded with the colonization, it was not over a terra nullius.

In answering the second question, the Court looked into the meaning of the term ‘legal ties.’ The court held that since the term is not defined anywhere, it has be understood in relation to the people as opposed to the territory and as referring to such ‘legal ties’ as may affect the policy to be followed in the decolonization of Western Sahara. At the time of colonization by Spain, it was found that there were some legal ties of allegiance between the Sultan of Morocco and some of the tribes living in the territory of Western Sahara and also there were some legal ties, relating to rights to the land, between Mauritanian and the territory of Western Sahara. But these legal ties were not of a nature that could now affect the application of the Decolonization Declaration of 1960 through the free and genuine expression of the will of the people of the Territory. As per the Declaration, subjecting people to alien subjugation, domination and exploitation constituted a denial of fundamental human rights and was against the UN Charter’s objective of promoting peace and cooperation.

Legality of the Construction of a Wall in the Occupied Palestinian Territory (Advisory Opinion of 9 July 2004)

The question raised before the ICJ by the General Assembly for its advisory jurisdiction was:

“What are the legal consequences arising from the construction of the wall being built by Israel, the occupying Power, in the Occupied Palestinian Territory, including in and around East Jerusalem, as described in the report of the Secretary-General, considering the rules and principles of international law, including the Fourth Geneva Convention of 1949, and relevant Security Council and General Assembly resolutions?”

The court here emphasized on the right of the Palestinian people to self-determination. ICJ explained that right to self-determination has been enshrined in the UN Charter, Article 1 of the International Covenant on Economic, Social and Cultural Rights and Article 1 of the International Covenant on Civil and Political Rights and in the General Assembly resolution 2625. This right puts an obligation on the States to promote the realization of that right and to respect it, and the duty to refrain from any forcible action which deprives peoples of their right to self-determination. The court emphasized that right to self-determination is now erga omnes. ICJ stated that the existence of the right of self-determination of Palestinian people is no longer in dispute as its existence has been recognized in a correspondence between the Israeli Prime Minister and President of the Palestine Liberation

Organization whereby the former recognized the latter as the representative of the people of Palestine and the latter acknowledged the right of Israel to exist in peace and security. Reference has been made to the rights of the Palestinian people in the Israeli-Palestinian Interim Agreement on the West Bank and the Gaza Strip of 28 September 1995 and General Assembly resolutions.

Analysing the route of construction of the wall, the Court found that it covers 80 per cent of the settlers living in the Occupied Palestinian Territory and includes within that area the great majority of the Israeli settlements in the occupied Palestinian Territory (including East Jerusalem). The court found that the construction, along with severely impeded the exercise by the Palestinian people of their right to self-determination, and was, therefore, a breach of Israel’s obligation to respect that right. Israel’s violations include certain obligations erga omnes which by their nature are concerns of all the States. The Court emphasized the duty of every State to promote, through joint and separate action, the realization of the principle of equal rights and self-determination of people.

Reference

1. Politics and the Emergence of an Activist International Court of Justice By Thomas J. Bodie
2. The International Court of Justice at 60: Performance and Prospects
3. By Taft, William Howard, IV; Gowlland-Debbas, Vera; Bethlehem, Daniel; Simma, Bruno
4. Schnetter, M., “Remedies at the International Court of Justice” (June 30, 2017), Bucerius Law Journal, 2017, No. 1.