12 Contribution of ICJ Part – 2

Prof. Nitin Gomber

In this Chapter , we will first discuss the Corfu Channel Case and the Case concerning the Barcelona Traction, Light and Power Company, Limited (famously called the Barcelona Traction case) which are based on the contributions of the ICJ in the development of the fundamental principles of international human rights law. The two fundamental concepts that developed through these cases are ‘elementary considerations of humanity’ and ‘obligations erga omnes.’

Corfu Channel Case (The United Kingdom v. Albania, Judgment of 9 April 1949, Merits) 

This case arose out of an incident that occurred in the Albanian territorial waters of the Corfu Channel where two British warships were struck by mines and incurred heavy damage and loss to human life.

In the relevant passage from this judgment, the ICJ stated

The obligations incumbent upon the Albanian authorities consisted of notifying, for the benefit of shipping in general, the existence of a minefield in Albanian territorial waters and in warning the approaching British warships of the imminent danger to which the minefield exposed them. Such obligations… are based on certain general and well-recognized principles, namely, elementary considerations of humanity, even more exacting in peace than in war.

The use of the phrase ‘elementary considerations of humanity’ possibly indicates to the tenets of natural law, whereby the ICJ insists that these rules need not be written down anywhere and that they are self evident. It is also to be noted here that in the ICJ has never attempted to identify the contents or underlying norms of this phrase. This concept in the Court’s opinion seems to be grounded on moral ethics rather than a legal principle and places upon States an obligation to behave in a manner which takes into account basic human rights of people across the board.

The Court after coining this term in fact utilized this principle in several of its decisions later on. In the Advisory Opinion on the Legality of Threat or Use of Nuclear Weapons, the Court held, “It is undoubtedly because a great many rules of humanitarian law applicable in armed conflict are so fundamental to the respect of the human person and elementary considerations of humanity as the Court put in its Judgement of 9 April 1949 in the Corfu Channel case… these fundamental rules are to be observed by all States whether or not they have ratified the conventions that contain them because they constitute intransgressible principles of international customary law.” In the Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory case, the ICJ recalled the elementary considerations of humanity and held that “these rules incorporate obligations which are essentially of an erga omnes character.” Thereafter, in the Case concerning Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America), the Court held that the rules of ‘elementary considerations of humanity’ consist of elaborate rules which are also to apply to international conflicts.

The Case concerning the Barcelona Traction, Light and Power Company, Limited (Belgium v. Spain, 1958-1961 and 1962-1970, Judgment of 5 February 1970 (Merits))

Barcelona Traction, Light and Power Company, Limited (the “Company” from here on) was a corporation incorporated in Canada that had set up a power production and distribution system in Spain. The majority of its shares were owned by Belgian nationals. Sometime prior to the Spanish Civil War in 1936, the Company had issued bonds to non-Spanish investors. However, during the Spanish Civil War, the Spanish government refused to allow the Company to transfer currency to pay its bondholders the interest they were due. The bondholders sued the Company for default, and this led to the selling off of the business of the Company. To protect the interest of the shareholders of the Company, Belgium sued Spain.

While noting that when a State admits into its territory foreign investments or foreign nationals, whether natural or juristic persons, it is bound to extend to them the protection of the law and assumes obligations concerning the treatment to be afforded them, the Court observed,

“In particular, an essential distinction should be drawn between obligations of a State towards the international community as a whole, and those arising vis-à-vis another State in the sphere of diplomatic protection. By their very nature [the obligations of a State towards the international community as a whole] are the concern of all States. In view of the importance of the rights involved, all States can be held to have a legal interest in their protection; they are obligations erga omnes2. Such obligations derive, for example, in contemporary international law, from the outlawing of acts of aggression, and of genocide, as also from the principles and rules concerning the basic rights of the human person, including protection from slavery and racial discrimination. Some of the corresponding rights of protection have entered into the body of general international law…; others are conferred by international instruments of a universal or quasi-universal character.”

This observation by the ICJ is of supreme importance, for it found that erga omnes obligations of States towards the international community as a whole derives from the principles and rules concerning the basic rights of the human person. Moreover, it also observed that such erga omnes obligations are a concern of all States, essentially implying that any State has the right to complain of a breach. Thus, a State could be called to account for other States if acts of aggression, genocide, or other grave and widespread infringements upon basic rights of the human person were occurring or stemming from a State’s territory.

It is also to be noted that even though the list of erga omnes obligations listed out by the ICJ is by no means an exhaustive one, however, three out of these four points listed by the Court deal with human rights law viz. genocide, protection from slavery and racial discrimination. This shows the recognition by the ICJ to increased importance of human rights in the international arena and how erga omnes obligations will possibly be utilized to further expand the scope human rights protection.

Now we shall first discuss a case which led to the internationalization of the protection of individual human rights. In the beginning, any international effort to protect the human rights of an individual was considered to be an interference with the domestic affairs of the state. However, with the changing time, a need was felt to extend internationalize the protection of an individual’s rights in certain situations. It became more important when human rights became an international concern from being a national issue and protection of international peace and order was an obligation that required interdependence of the States. In its advisory opinion in the Interpretation of Peace Treaties, ICJ stated that human rights were not solely a domestic affair shielded from the eyes and the interest of the outside world.

Interpretation of Peace Treaties with Bulgaria, Hungary and Romania Advisory Opinion of 30 March 1950 (First Phase)

The questions concerning the Interpretation of Peace Treaties with Bulgaria, Hungary, and Romania were referred to the International Court of Justice for an advisory opinion by a resolution of the General Assembly. The General Assembly did so after the Allied, and Associated Powers accused Bulgaria, Hungary and Romania (the “three States” from here on) of violating the Peace Treaties and in particular, those articles of the Treaties which have to do with the security of human rights and fundamental freedoms. In fact, the three States were also accused of non-cooperation on behalf of the Allied and Associated Powers in appointing commissions to resolve disputes peacefully as per the Peace Treaties.

There were four questions put before the Court by means of this resolution. The first question in the said resolution was, “Do the diplomatic exchanges between the three States and certain Allied and Associated Powers disclose disputes subject to the provisions for the settlement of disputes contained in the Treaties?

Now, the first argument of the three States was that in dealing with the question of the observance of human rights and fundamental freedoms in these three States, the General Assembly was ‘interfering’ or ‘intervening’ in matters essentially within the domestic jurisdiction of States. The alleged non-competence of the GA to request such an opinion was deduced from Article 2, paragraph 7 of the UN Charter, which essentially barred the United Nations for intervening in matters of domestic jurisdiction of any state.

The Court noted that the General Assembly justified the adoption of its resolution by stating that ‘the UN, pursuant to Article 55 of the Charter, shall promote universal respect for and observance of human rights and fundamental freedoms, for all without distinction as to race, sex, language or religion’. The Court also noted that the request was directed solely at obtaining certain clarifications of a legal nature concerning the interpretation of the terms of a treaty and thus, must not to be considered as a question essentially within the domestic jurisdiction of a State. Here, although the Court clarified that the object of the request was limited to legal clarifications, it implicitly departed from the view that the question of the observance of human rights is a domestic issue.

This implicit shift in the 1950s was truly remarkable, and at the very least, the proceedings before the ICJ further increased awareness about the human rights violations that were taking place in the States concerned, thereby giving an international dimension to this issue. Moreover, even though the issue led to a dead-end in view of the stubborn attitude of the governments of the three States, the Court pointed to the international responsibility incurred by these governments because of their refusal to appoint their Commission members.

Now we will discuss three judgments of the ICJ on consular relations disputes. This topic is an important part of the international human rights law as it concerns the actions of the State to extend protection to their citizens beyond their territorial jurisdictions, i.e., in situations where allegedly the citizens of one State have committed a crime under the national laws of another State and he is being tried without extending adequate protection under the law. All three cases mentioned below have been filed against the United States of America by Paraguay, Germany, and Mexico, respectively on the basis of the Optional Protocol to the Vienna Convention on Consular Relations of 24 April 1963 (Consular Relations Convention or Convention). These cases were brought before the ICJ by States exercising their right to diplomatic protection under the Vienna Convention on Diplomatic Relations of 18 April 1961 and/or the Vienna Convention on Consular Relations of 24 April 1963.

Case Concerning the Vienna Convention on Consular Relations (Paraguay v. United States, Application of 3 April 1998 and Order of 9 April 1998)

This case was brought before ICJ by Paraguay against the United States concerning alleged violations of the Consular Relations Convention of 1963 with respect to the case of Mr. Angel Francisco Breard, a Paraguayan national convicted of murder in Virginia, US. The authorities in Virginia had arrested Mr. Breard, who was consequently charged, tried and convicted of culpable homicide and finally sentenced to death by a court in Virginia in 1993 and executed. Paraguay alleged that this execution took place in violation of Article 5 and 36 of the Consular Relations Convention, 1963. Article 36 that states:

1.      With a view to facilitating the exercise of consular functions relating to nationals of the sending State:

• Consular officers shall be free to communicate with nationals of the sending State and to have access to them. Nationals of the sending State shall have the same freedom with respect to communication with and access to consular officers of the sending State;
• If he so requests, the competent authorities of the receiving State shall, without delay, inform the consular post of the sending State if, within its consular district, a national of that State is arrested or committed to prison or custody pending trial or is detained in any other manner. Any communication addressed to the consular post by the person arrested, in prison, custody or detention shall also be forwarded by the said authorities without delay. The said authorities shall inform the person concerned without delay of his rights under this sub-paragraph;
• Consular officers shall have the right to visit a national of the sending State who is in prison, custody or detention, to converse and correspond with him and to arrange for his legal representation. They shall also have the right to visit any national of the sending State who is in prison, custody or detention in their district in pursuance of judgment. Nevertheless, consular officers shall refrain from taking action on behalf of a national who is in prison, custody or detention if he expressly opposes such action.

2. The rights referred to in paragraph 1 of this Article shall be exercised in conformity with the laws and regulations of the receiving State, subject to the proviso, however, that the said laws and regulations must enable full effect to be given to the purposes for which the rights accorded under this Article are intended.

In this case, it was alleged by Paraguay that authorities in Virginia did not inform them of Mr. Breard’s arrest and didn’t allow him to invoke the provisions of the Convention. Mr. Breard was not informed of his rights, and the proceedings were conducted for him without translation. Paraguay government approached the US Supreme Court, US government and the Department of State against the verdict of execution but its efforts went into vain. It finally raised the matter before ICJ on April 3, 1998 as the execution was due on April 14, 1998.

In its request for provisional measures in the situation, Paraguay emphasized on the inherent right to life of every individual provided for in Article 6 of the International Covenant on Civil and Political Rights and requested the Court to order the US to not execute Mr. Breard until the Court gives its decision.

Taking into consideration the urgency in the matter, the court ordered that US should not execute Mr. Breard pending the final decision in the matter of ICJ. However, the Court clarified that its decision will only concern the resolution of international dispute between the States, Paraguay, and US, and not comment on the existence of death penalty in the US for heinous crimes.

Despite the binding nature of the orders of the ICJ, unfortunately, this Order couldn’t prevent the execution of Mr. Breard who was executed on 14 April 1998. At that point, an out of Court settlement had been reached between the government of Paraguay and the US government.

LaGrand (Germany v. United States, Order on Provisional Measures of 3 March 1999 and Judgment of 27 June 2001)

Two German nationals in the State of Arizona were tried and sentenced to death without being advised of their rights to consular assistance as guaranteed to them by Article 36 (1)(b) of the Vienna Convention on Consular Relations. This provision of the said Convention provides that when a national of a foreign country is arrested or detained on criminal or immigration charges, the detainee must be advised of the right to have the detainee’s consulate notified and that the detainee has the right to regular consultation with consular officials during detention and any trial. This failure on the part of the United State precluded Germany from protecting its nationals’ interests. Accordingly, Germany brought this matter before the ICJ. It is interesting to note that Germany brought this matter to the ICJ on March 02, 1999, just one day prior to the execution.

Given the urgency in the matter, Germany requested the ICJ to take recourse to ‘provisional measures’ under Article 41 of the Statute of the ICJ, read with Articles 73-75 of the Rules of the Court and issue orders halting the execution of the convict so that a final decision on merits could be taken. The Court agreed with Germany and issued an order within hours that ordered the United States to halt the execution of Walter LeGrand. However, Walter LeGrand was executed, nonetheless.

Now, two important contributions were made to the international human rights corpus by this judgment. First, the court held that Article 36, paragraph 1 of the Vienna Convention on Consular Relations creates individual rights, which may be invoked by the national State of the detained person.

This observation is important as the said convention is essentially an inter-State agreement and was not clear if the consular access provisions would prima facie apply to individuals.

Secondly, the Court held, that by failing to take all measures at its disposal to ensure that Walter LeGrand was not executed pending the final decision of the ICJ, the United States breached the obligation incumbent upon it under the Order indicating provisional measures issued by the Court on 3 March 1999. This in fact is a bold measure taken by the ICJ clarifying that such orders are binding upon States, especially in light of the various questions being raised for the efficacy of any international court.

Avena and other Mexican Nationals (Mexico v. United States, Order on Provisional Measures of 5 February 2003 and Judgment of 31 March 2004)

Like the previous cases, this case was filed against the United States by Mexico on violation of Consular Relations Convention in relation to the treatment of a number of Mexican nationals who had been tried, convicted and sentenced to death in criminal proceedings in different states of the US between 1979 and the time when the Application was filed. When Mexico brought this case in the ICJ, a few of its nationals were a week away from the execution of their death sentence. With the provisional orders from the Court, US did not execute the sentence until the matter was decided by the Court on merits.

The US raised certain preliminary objections to the jurisdiction of the court and admissibility of the case, which was rejected by the court. With respect to the rights of the affected Mexican citizens, the court held that the US had violated Article 36 paragraph 1 (c), of the Convention by depriving Mexico of the right to arrange for legal representation in a timely fashion. It has violated Article 36, paragraph 2 by refusing the re-consider the execution of three Mexicans after the establishment of the violations in the legal process as under Article 36(1) (b). While considering the appropriate reparation, in this case, the Court found that it consisted of the obligation of the US to provide, by means of its own choosing, a review and reconsideration of the convictions and sentences of the Mexican nationals and abiding by Article 36 of the Convention.

Reference

1. Nesheva, R., “100 Years of International Justice: Time to Consider a Reform of the International Court of Justice” (June 3, 2015), IALS Student Law Review, 2 (2015), No. 2, pp. 12-25.
2. Maksymov, M., “Is the International Court of Justice an Option for Ukraine in Light of the Conflict with Russia?” (October 1, 2015), Current Affairs, Cambridge Journal of International and Comparative Law.
3. Madsen, M.R., “The New Sociology of International Courts” (December 15, 2015), ESIL Reflections, 4, No. 10.