13 Judicial Decisions of the ICJ Part -3

Prof. Nitin Gomber

The Nottebohm case discussed below deals with diplomatic protection. It is still a controversial issue if the area of diplomatic protection is covered under international human rights law. Matters of diplomatic protection are based on the principle of comity on one hand and protection of the rights of an individual by its State on the other. A State can only exercise the right of diplomatic protection over an individual if there exists real and effective tie between the two.

Nottebohm Case (Liechtenstein v. Guatemala, Judgment of 6 April 1955, Second Phase)

This case deals with the right of an individual to have a nationality. It is provided for under Article 15 of the Universal Declaration of Human Rights as:

• Everyone has the right to a nationality.
• No one shall be arbitrarily deprived of his nationality nor denied the right to change his nationality.

The right to nationality is an important right as from the nationality accrues significant human rights – civil, political, social and economic. Nationality is closely connected to the concept of State – which has the obligation of securing rights for its nationals and necessary conditions for their enjoyment. Nottebohm case, discussed below, is relevant as it discusses the central role played by naturalization, as a process of acquiring a nationality, and the concept of effective nationality as determining factors for established citizenship, a prerequisite for a State’s ability to exert diplomatic protection on behalf of an individual.

The Nottebohm case was filed in ICJ by Liechtenstein against Guatemala claiming reparation for arresting, detaining, expelling and refusing to readmit Mr. Friedrich Nottebohm (Mr. Nottebohm), a citizen of Liechtenstein, and seizing and retaining his property without compensation. The request for reparation had two parts: a claim for special and general damages owed to the Government of Liechtenstein and, the restitution by Guatemala to Mr. Nottebohm of all his property seized and retained with damages for the deterioration of that property.

Liechtenstein contended that it naturalized Mr. Nottebohm according to its national laws on October 20, 1939, and Mr. Nottebohm has exhausted all the remedies available under the Guatemala’s municipal laws. Guatemala, on the other hand, contended that Liechtenstein’s claims should be dismissed due to the absence of any prior diplomatic relations and fraudulent obtainment of nationality by naturalization by Mr. Nottebohm.

The court first considered whether the nationality conferred on Mr. Nottebohm by Liechtenstein by means of naturalization could be validly invoked against Guatemala. Commenting on the importance of nationality, ICJ stated that –

[N]ationality has its most immediate, it’s most far-reaching and, for most people, its only effects within the legal system of the State conferring it. Nationality serves above all to determine that the person upon whom it is conferred enjoys the rights and is bound by the obligations which the law of the State in question grants to or imposes on its nationals. This is implied in the wider concept that nationality is within the domestic jurisdiction of the State.

The court held that while granting nationality is a state act, governed by national laws, the question whether a State was entitled to exercise protection and whether third States were required to recognize the granting of nationality is a question under International law. In cases where two states have conferred nationality on the same person, arbitrators in international arbitrations and courts of various countries have given effect to the nationality that is based on stronger factual ties. The Court provided a list of factors that may be utilized in a situation to see whether the nationality is real and effective :

• the habitual residence of the individual concerned;
• the centre of his interests;
• his family ties;
• his participation in public life;
• attachment shown by him for a given country and inculcated in his children, and so on

Based on the legal bond between the State and the individual, the State will only exercise protective measures for the individual if there exists a genuine connection of existence, interests, and sentiments, together with the existence of reciprocal rights and duties. While looking into the process by which Mr. Nottebohm acquired nationality, the court questioned whether at the time of his naturalization Nottebohm appeared to have been more closely linked to his tradition, his establishment, his interests, his activities, his family ties, or his intentions for the near future, to Liechtenstein than to any other State.

The Court took note of the following facts to conclude that Mr. Nottebohm’s nationality of Liechtenstein lacked any real existence: Mr. Nottebohm was a German national from the time of his birth. He always retained his family and business connections with Germany, and there was nothing to indicate that his application for naturalization in Liechtenstein was motivated by any desire to dissociate himself from the Government of his country. Further, he had been settled for 34 years in Guatemala, which was the centre of his interests and his business activities, until his removal as a result of war measures in 1943. For Liechtenstein, his actual connections with were extremely insubstantial as there was no settled abode and no prolonged residence in that country at the time of his application for naturalization.

These facts clearly establish the lack of genuineness in obtaining nationality of Liechtenstein and clearly establish fraudulent intentions of escaping the belligerent state. Therefore, Guatemala had no obligation to recognize a nationality granted in such circumstances and Liechtenstein was not entitled to extend its protection to Nottebohm vis-à-vis Guatemala.

United States Diplomatic and Consular Staff in Tehran (United States v. Iran, Order of 15 December 1979)

This case was a result of a diplomatic crisis between Iran and the United States, whereby the US agreed to shelter the Shah of Iran. In retaliation, a group of Iranian students (some call them revolutionaries) attacked the US Embassy in Iran and took fifty-two American diplomats and citizens hostage for 444 days. It was alleged by the United States that no attempt was made by the Government of Iran to rescue the persons being held hostage, or to persuade the invaders and demonstrators to terminate their action. In fact, the United States alleged direct support of the Iranian government to the group.

While the Court primarily ruled on the inviolability of diplomatic envoys, it also took note of the deteriorating situation that the consular staff could possibly be in and stated, “Wrongfully to deprive human beings of their freedom and to subject them to physical constraint in conditions of hardship is in itself manifestly incompatible with the principles of the Charter of the United Nations, as well as with the fundamental principles enunciated in the Universal Declaration of Human Rights.”

The significance of this judgment is the recognition by the ICJ that binding State obligations do accrue from the Charter of the United Nations and the Universal Declaration of Human Rights. In fact, when the Court did have an option to rule specifically on the points raised by the United States in its application, it’s going out of the way to take note of the individual conditions of the hostages is notable.

Ahmadou Sadio Diallo Case (Republic of Guinea v. Democratic Republic of the Congo)

The Government of the Republic of Guinea (“Guinea” from here on) initiated proceedings against the Democratic Republic of Congo (“DRC” from here on) alleging that one of its nationals Mr. Ahmadou Sadio Diallo, was unjustly imprisoned by the authorities of DRC after being resident in that State for thirty two years. It was also alleged that Mr. Ahmadou was despoiled of his sizable investments, businesses, movable and immovable property, bank accounts and ultimately expelled. Guinea stated that this expulsion came at a time when Mr. Ahmadou was pursuing recovery of substantial debts owed to his businesses by the State and by oil companies in which the State is a shareholder.

Now, this case is remarkable from a human rights perspective. Why? Well, Guinea invoked provisions of the International Covenant on Civil and Political Rights, 1966 (“ICCPR” from here on), the Universal Declaration of Human Rights, 1948 (“UDHR” from here on), Declaration of the Rights of Man and Citizen, 1789 (“Declaration” from here on) among others and the responsibility of the ICJ was, in fact, to rule on such alleged violations only.

Some of the allegations invoked by Guinea were: From the ICCPR, Article 9 para 1 (arbitrary arrest and detention), Article 9 para 2 (informing reasons of arrest and charges), Article 10 (persons deprived of their liberty to be treated with humanity) and Article 13 (procedure for expulsion of an alien) were invoked; Detaining Mr. Ahmadou without trial or any form of charge was violative of the UDHR. From the Declaration of the Rights of Man and Citizen, 1789, Article 2 (Right to property) was invoked. DRC was in breach of peremptory norms of international human rights law.

Based on the facts of the case, the ICJ held that DRC was in violation of Article 9 para 1, para 2 and Article 13 of the ICCPR among other provisions and granted compensation in the matter, as well. This shows that human rights claims, whether civil, political, economic, cultural or social, they all fall in principle under the scrutiny of the ICJ.

In the next two advisory opinions, the ICJ has discussed the status and treatment of the human right rapporteurs under the Convention on the Privileges and Immunities of the United Nations of 1946. It is important to discuss the protections extended to the human rights rapporteurs as they play a predominant role at the grass-root level in implementing the objectives of the UN like maintaining international peace and security, promoting respect for human rights and fundamental freedoms, and acting as a centre for harmonizing the actions of nations. Without extending proper protection to the life, work and mission of these rapporteurs, achieving these ends would not be feasible.

Applicability of Article VI, Section 22, of the Convention on the Privileges and Immunities of the United Nations (Advisory Opinion of 15 December 1989)

The United Nations Economic and Social Council submitted a request to the ICJ seeking advisory opinion on “Status of Special Rapporteurs” when an issue arose between the UN and the government of Romania on the status of a UN Special Rapporteur Mr. Dumitru Mazilu who was stationed in Romania in Sub-Commission on Prevention of Discrimination and Protection of Minorities to prepare a report on the role of youth in the field of human rights. The Commission on Human Rights which had formed the Sub-Commission requested the Secretary-General to extend all assistance to Mr. Mazilu for the completion of the report.

Mr. Mazilu was a member of the Sub-Commission from March 13, 1984, to August 29, 1985; then he was both a member and a rapporteur of the Sub-Commission from August 29, 1985, to December 31, 1987; and finally after no longer being a member of the Sub-Commission he had remained a special rapporteur.

The issue arose before the ICJ over the applicability of the applicability of Article VI, Section 22, of the Convention on the Privileges and Immunities of the United Nations. Section 22 provides for the immunities available to the experts on missions for the United Nations. Before looking into the application of this Section in the given situation, the Court interpreted the words ‘experts on mission’ which is undefined in the Convention. The court said the ‘experts on mission’ covers only experts performing missions for the Organization and not officers of the organization chosen for their technical expertise in a particular field. The Section, however, did not provide any indication of the nature, duration or place of these missions. Therefore, Section 22 is meant to extend protection to those who are not officials of the UN but granted certain privileges and immunities to perform the tasks assigned under a mission. Looking at the status of the rapporteurs of the Sub-Commission the Court held that they will be considered as experts on missions under Section 22 as their status was neither that of a representative of a Member State nor that of a UN official, and since they performed independently for the Sub- Commission functions contemplated in its remit. Therefore, the rapporteurs will enjoy the privileges and immunities necessary for the exercise of their functions, and in particular for the establishment of any contacts which could be useful for the preparation, the drafting and the presentation of their reports to the Sub-Commission.

The Court held that during all the time, Mr. Mazilu was the expert on the mission covered under Section 22 and therefore entitled to all immunities and privileges. Facts like that Mr. Mazilu fell seriously ill in May 1987 and his intellectual capacity was questioned by Romania, does not affect his status of an expert on the mission under Section 22.

Difference Relating to Immunity from Legal Process of a Special Rapporteur of the Commission on Human Rights (Advisory Opinion of 29 April 1999)

The United Nations Economic and Social Council filed a request for an advisory opinion before the ICJ on August 5, 1998, questioning the applicability of Article VI, Section 22, of the Convention on the Privileges and Immunities of the United Nations specifically immunity of the Special Rapporteur from the legal process.

In this case, Dato’ Param Cumaraswamy as Special Rapporteur of the Commission on Human Rights on the independence of judges and lawyers gave an interview in his capacity as UN Special Rapporteur. The defamatory suit was then filed against him by two Malaysian companies who alleged that the said article contained defamatory words that had ‘brought them into public scandal, odium and contempt.’ The UN counsel requested the Malaysian authorities to exempt Mr. Cumaraswamy from the legal process as he is entitled to such immunity under Section 22 of the Convention, but the request was dismissed by the concerned judge in the case. On failure of an out of court settlement between the ECOSOC and Malaysian government, the request was made before the ICJ.

Relying on the Mazilu case, discussed above, the Court held that since Mr. Cumaraswamy was a special rapporteur at that time, he will be entitled to the immunities and privileges under the Convention. Now the question was, whether the ‘allegedly defamatory’ words spoken by Mr. Cumaraswamy were made during the course of the performance of his mission which will further entitle him to privileges under Section 22? For reaching the conclusion, the Court took into consideration Article VI, Section 23, of the Convention which provides that ‘[P]rivileges and immunities are granted to experts in the interests of the United Nations and not for the personal benefit of the individuals themselves.’ In the given case, the Secretary-General, or the Legal Counsel of the UN on his behalf, had on numerous occasions informed the Government of Malaysia that Mr. Cumaraswamy had spoken the words quoted in the article in International Commercial Litigation in his capacity as Special Rapporteur of the Commission and that consequently he was entitled to immunity from ‘every kind’ of legal process. Additionally, it was recognized by the UN that nowadays it is a common practice for the rapporteurs to interact with the media and share the details of their work. Therefore, when Mr. Cumaraswamy did this, he was performing his work as the UN Special Rapporteur.

The Secretary-General, being the administrative officer of the organization has the primary responsibility to safeguard the interests of the Organization, the Court held that it would be up to him to assess whether the agents of the Organization act within the scope of their functions, and, if this is so, to protect these agents, including experts on mission, by asserting their immunity and then bring his findings to the knowledge of the national courts. Also, it was the obligation of the Government of Malaysia under Article 105 of the Charter and under the Convention, to inform its courts of the position taken by the Secretary-General which it had failed at. Therefore, Mr. Cumaraswamy as an expert on the mission was entitled to immunity from legal process, and the Government of Malaysia was obligated to communicate this advisory opinion to the competent Malaysian courts, to give effect to Malaysia’s international obligations.

Conclusion:

From our discussion in the last three modules, we may see that ICJ, through its contentious and advisory jurisdiction, has dealt with a variety of issues with have contributed in various ways in the development of international human rights law. The Court has been able to progressively develop and interpret norms of the international law of human rights, hence contributing to an international legal order where human rights are given a prominent place. This development has also been possible through the initiatives of the United Nations, in the form of UN Charter and other treaties which have been regularly referred by ICJ in its opinions. The Court has at various places stated that abiding the human rights clauses in the UN Charter is the most important obligation of the States amongst others mentioned in the Charter. Through the judgments discussed, we may conclude that the Court’s contributions are following:

• The principles and rules of international law concerning the fundamental rights of human beings engender obligations erga omnes.
• The right of peoples to self-determination is a right which has an erga omnes character under international law.
• International instruments such as the Vienna Convention on Consular Relations create individual rights for natural persons which are part of international human rights law.

Reference

1. The International Court of Justice and Human Rights, Rosalyn Higgins
2. Chan, L., “The Dominance of the International Court of Justice in the Creation of Customary International Law” (September 2016), Southampton Student Law Review, 6 (2016), No. 1, pp. 44-71.
3. Venzke, I., “Public Interests in the International Court of Justice: A Comparison between Nuclear Arms Race (2016) and South West Africa (1966)” (June 2, 2017), in 111 AJIL Unbound (2017), pp. 68-74.