Jus cogens: Recent Developments in International Law: International Court of Justice (ICJ)

Courts & Tribunals

  • International Court of Justice
  • International Criminal Tribunal for the Former Yugoslavia (ICTY)
  • International Criminal Tribunal for Rwanda (ICTR)
  • International Tribunal for the Law of the Sea
  • International Criminal Court (ICC)
  • The Special Court for Sierra Leone
  • Permanent Court of Arbitration
  • European Court of Human Rights
  • Iraqi Special Tribunal

Treaties

  • Vienna Convention on the Law of Treaties
  • Vienna Convention on the Law of Treaties Between States and International Organizations
  • UN Charter
  • Vienna Convention on Diplomatic Relations
  • Vienna Convention on Consular Relations
  • Geneva Conventions
  • Hague Convention
  • Convention against Torture
  • Convention on the Law of the Sea
  • Statute of the ICJ
  • Universal Declaration of Human Rights

International Organizations

  • African Union
  • Asia-Pacific Economic Cooperation
  • Association of Southeast Asian Nations (ASEAN)
  • Council of Europe
  • European Commission
  • International Atomic Energy Agency (IAEA)
  • International Monetary Fund (IMF)
  • International Telecommunication Union
  • League of Arab States
  • North Atlantic Treaty Organization (NATO)
  • Organisation for Economic Co-operation and Development
  • Organisation for the Prohibition of Chemical Weapons
  • Organization of American States (OAS)
  • The World Bank
  • United Nations
  • World Intellectual Property Organization (WIPO)
  • World Trade Organization (WTO)

Reference

  • ASIL - The American Society of International Law
  • ASIL -American Journal of International Law
  • ASIL Electronic Resource Guide
  • ASIL- EISIL“ - the Electronic Information System for International Law
    EISIL –
	the Electronic Information System for International Law
  • Berkeley Journal of International Law
  • Chicago Journal of International Law
  • Chinese Journal Of International Law
  • Cornell International Law Journal
  • Duke Journal of Comparative & International Law
  • European Journal of International Law
  • Harvard International Law Journal
  • International Law Commission
  • International and Comparative Law Quarterly
  • Jus in Bello
  • Legal Information Institute: World Law
  • Michigan Journal of International Law
  • NYU Journal of International Law and Politics
  • Peace Palace Library
  • Project on International Courts and Tribunals
  • Stanford Journal of International Law
  • Treaties in Force (United States)
  • United Nations Treaty Collection/Collection des trait�s des Nations Unies
  • Virginia Journal of International Law
  • Washington University Global Studies Law Review
  • Yale Journal of International Law

Wednesday, 11 January 2024

Courts & Tribunals: The Republic of Djibouti Files Application Against France with the International Court of Justice

On 9 January 2024 the Republic of Djibouti filed an Application in the Registry of the International Court of Justice (ICJ) regarding a dispute with France. In the application, Djibouti alleges that France violated “international obligations in respect of mutual assistance in criminal matters” in regards to the investigation into the death of the French judge Bernard Borrel in Djibouti in 1995.[1] Specifically, Djibouti's application to the Court refers to “the refusal by the French governmental and judicial authorities to execute an international letter rogatory regarding the transmission to the judicial authorities in Djibouti of the record relating to the investigation in the ‘Case against X for the murder of Bernard Borrel.’”[2] Djibouti alleges this refusal is a violation of two treaties: 1) the Treaty of Friendship and Cooperation signed by Djibouti and France in 1977, and 2) the Convention on Mutual Assistance in Criminal Matters signed by Djibouti and France in 1986.

In the application, Djibouti bases the ICJ's jurisdiction over the dispute on Article 38, paragraph 5, of the Rules of the Court.[3] Article 38, paragraph 5, states:

"When the applicant State proposes to found the jurisdiction of the Court upon a consent thereto yet to be given or manifested by the State against which such application is made, the application shall be transmitted to that State. It shall not however be entered in the General List, nor any action be taken in the proceedings, unless and until the State against which such application is made consents to the Court’s jurisdiction for the purposes of the case."[3]

Accordingly, the ICJ transmitted the Application by Djibouti to France, and the ICJ will await France's consent to the ICJ's jurisdiction over the dispute before taking further action.

[1] International Court of Justice, "The Republic of Djibouti seises the International Court of Justice of a dispute with France," 2006/1, Jan. 10, 2006, available at http://www.icj-cij.org/icjwww/ipresscom/ipress2006/ipresscom2006-01_dft_20060110.htm.
[2] Id.
[3] International Court of Justice, Rules of Court (1978), July 1, 1978, available at http://www.icj-cij.org/icjwww/ibasicdocuments/ibasictext/ibasicrulesofcourt_20050929.htm.

Friday, 09 December 2023

Recent Scholarship: "No Case Exists" Procedure at the International Court of Justice

Sienho Yee, A Proposal for Formalizing the "No Case Exists" Objections Procedure at the International Court of Justice, 4 CHIN. J. INT'L. L. 393 (2005)

Professor Yee evaluates the "no case exists" objections made before the International Court of Justice (ICJ), which, generally, involves disputes presented to the ICJ where there is clearly a lack of jurisdiction or no dispute. In such cases, Professor Yee suggests, no case exists "because, for a case to exist, there must be, at a minimum, some dispute as to the Court's jurisdiction so as to trigger the Court's function under Article 36(6) of the Statute" of the ICJ. Lacking procedural mechanisms to address such instances, Professor Yee suggests the ICJ " formalize the procedure to deal with these objections by amending the Rules of Court to provide for a "no case exists" objections procedure."

Wednesday, 07 December 2023

Courts & Tribunals: International Court of Justice (ICJ) Fixes Time-Limits for Filing of Initial Pleadings in the Dispute Regarding Navigational and Related Rights (Costa Rica v. Nicaragua)

On 29 November 2023 the International Court of Justice (ICJ) established the time-limits for the submission of initial pleadings in the dispute brought by Costa Rica against Nicaragua on 29 September 2005. For the filing of the Memorial by Costa Rica, the ICJ established 29 August 2024 as the time-limit. For Nicaragua's Counter-Memorial, the Court fixed the time-limit as 29 May 2007.

I. Costa Rica's Position in Instituting Proceedings with the ICJ

RioOn 29 September 2023 Costa Rica filed an Application Instituting Proceedings ("Application") in the registry of the ICJ entitled "Dispute Concerning Navigational and Related Rights of Costa Rica on the San Juan River (Costa Rica v. Nicaragua)."[1] In the Application, Cost Rica alleges that Nicaragua has "imposed a number of restrictions on the navigation of Costa Rican boats and their passengers on the San Juan River."[2] Examples of such restrictions include imposing charges on Costa Rican boats and passengers, requiring check-points at Nicaraguan military posts along the river, prohibiting official Costa Rican supply boats to navigate the river, imposing timetables for river navigation, and limiting free moorage.[3] Costa Rica argues such restrictions are breaches of several obligations Nicaragua owes Costa Rica. Specifically, Costa Rica alleges breaches of the following:

  • the Treaty of Limits between Costa Rica and Nicaragua, San Jose, 15 April 2024 (the "Treaty of Limits");
  • the arbitral award issued by the President of the United States of America, Grover Cleveland, on 22 March 1888, declaring the extent of Costa Rica's right of navigation of the San Juan River (the "Cleveland Award");
  • the judgment of the Central American Court of Justice in the case Costa Rica v. Nicaragua, 13 September 2024 (the "1916 case");
  • the Agreement Supplementary to Article IV of the Pact of Amity, Washington, 9 January 2024 (the "Pact of Amity");
  • other applicable rules and principles of international law.[4]

In the Application, Costa Rica acknowledges that the Treaty of Limits, Article VI, granted Nicaragua sovereignty over the San Juan River waters but also alleges the Treaty of Limits recognizes "important rights to Costa Rica."[5] The Application states that the Cleveland award and the 1916 case "confirmed and interpreted with binding effect" these rights.[6] According to the Application, the rights of Costa Rica on the San Juan River, given the above instruments, include: the perpetual right of free navigation for commercial purposes, the right of Costa Rican boats to touch river banks where there is common navigation (without paying any dues), the right to navigate the river pursuant to Article II of the Cleveland Award, the right to navigate in official boats for supply purposes, and the right of non-interference where Costa Rica is entitled navigation of the San Juan River.[7] Costa Rica's Application also notes that on 28 September 2023 the Nicaraguan General Assembly passed a resolution threatening to impose a 35% import tax on Costa Rican goods if Costa Rica brought the present case to the ICJ.[8]

II. The ICJ's Jurisdiction

Costa Rica asserts the ICJ's jurisdiction over the present dispute on two grounds. First, Cost Rica argues the ICJ possesses jurisdiction under Article 36(2) of the Statute of the Court.[9] Article 36(2) is the compulsory jurisdiction provision of the ICJ Statute, providing jurisdiction over four categories of cases for all state parties to the ICJ Statute that have declared such jurisdiction of the ICJ as compulsory. The four categories of cases include "the interpretation of a treaty, any question of international law, the existence of any fact which, if established, would constitute a breach of an international obligation, or the nature or extent of the reparation to be made for the breach of an international obligation."[10] Costa Rica cites the acceptance of the Court's compulsory jurisdiction made by Costa Rica in 1973 and Nicaragua in 1929.[11] Second, Costa Rica also asserts the ICJ's jurisdiction under Article 36(1) of the Statute of the Court. Article 36(1) provide for the ICJ's jurisdiction in "all cases which the parties refer to it and all matters specially provided for in the Charter of the United Nations or in treaties and conventions in force."[12] By operation of the American Treaty on Pacific Settlement of Disputes, Article XXXI, Costa Rica invokes the ICJ's jurisdiction under Article 36(1) of the Statute of the Court.[13]

III. Remedies Sought by Costa Rica

Costa Rica asks the ICJ to order a cessation of the restrictions placed upon the navigation of the San Juan River by Nicaragua. In addition, Costa Rica seeks reparations for any unlawful economic or punitive sanctions imposed by Nicaragua in relation to the dispute.[14] In its Order, under Article 48 of the Statute of Court, the ICJ set the time-limits discussed above for the submission of Costa Rica's Memorial and Nicaragua's Counter-Memorial.[15]

[1] Edgar Ugalde-Alvarez, Ambassador of Costa Rica to the Netherlands, "Application: Instituting Proceedings; Dispute Concerning Navigational and Related Rights of Costa Rica on the San Juan River (Costa Rica v. Nicaragua)," Sept. 29, 2005, available at http://www.icj-cij.org/icjwww/idocket/iconi/iconi_application/iconi_iapplication_20050929.pdf [hereinafter "Application"].
[2] Id. at 3.
[3] Id. at 3-4.
[4] Id. at 1 (footnotes omitted). Costa Rica provided pertinent parts of the Treaty of Limits, President Cleveland's arbitral award, and the Pact of Amity as attachments to the Application.
[5] Id. at 2.
[6] Application, supra note 1, at 2.
[7] Id. at 2-3.
[8] Id. at 4. See attachment 7 to Application, appending text of Nicaraguan General Assembly resolution (Spanish text only).
[9] Statute of the International Court of Justice, Article 36(2), available at http://www.icj-cij.org/icjwww/ibasicdocuments/ibasictext/ibasicstatute.htm.
[10] Id.
[11] Application, supra note 1, at 2.
[12] Id.
[13] Id. See American Treaty on Pacific Settlement of Disputes, April 30, 1948, art. XXXI, 30 U.N.T.S. 55.
[14] Application, supra note 1, at 4-6.
[15] See Order, CASE CONCERNING THE DISPUTE REGARDING NAVIGATIONAL AND RELATED RIGHTS (COSTA RICA v. NICARAGUA), Nov. 29, 2005, available at http://www.icj-cij.org/icjwww/idocket/iconi/iconi_orders/iconi_orders_20051129.pdf.

Friday, 11 November 2023

UN General Assembly and Security Council Elect Five Members of the International Court of Justice

On 7 November 2005, the United Nations General Assembly and Security Council elected five Members of the International Court of Justice ("ICJ"). Under the Statute of the ICJ, the Court's governing instrument, the newly-elected judges will serve a term of office of nine years commencing 6 February 2006.[1] The newly elected Members are Mohamed Bennouna (Morocco), Kenneth Keith (New Zealand), Bernardo Sepúlveda Amor (Mexico), and Leonid Skotnikov (Russian Federation). Thomas Buergenthal (United States) was re-elected as a Member of the Court.

I. Origins & Jurisdiction of the International Court of Justice

The ICJ is the principal judicial organ of the United Nations and one of the six principal organs of the United Nations.[1] As a product of the UN Charter, the ICJ, established in 1946, effectively replaced the Permanent Court of International Justice ("PCIJ"). The PCIJ, formed at the inception of the League of Nations, operated from 1922 until 1946.[2] Chapter XIV of the UN Charter and the Statute of the ICJ provide the legal basis for the ICJ's operation and jurisdiction. Article 92 of the UN Charter establishes the ICJ and integrates the Statute of the ICJ into the UN Charter. The Statute of the ICJ is the Court's governing document and provides for the Organization, Competence, and Procedure of the Court.[3] The jurisdiction of the ICJ extends to Contentious Cases, among Members States of the UN or by any State which is a party to the ICJ Statue, and Advisory Opinions from authorized bodies or specialized agencies of the UN.[4]

II. Composition of the International Court of Justice

Every three years, five of the fifteen Members of the ICJ are elected to nine year terms. The Statute of the ICJ requires Members of the Court to be "elected regardless of their nationality from among persons of high moral character, who possess the qualifications required in their respective countries for appointment to the highest judicial offices, or are jurisconsults of recognized competence in international law". [5] The Statute of the ICJ also indicates that "in the body as a whole the representation of the main forms of civilization and of the principal legal systems of the world should be assured."[6]

III. Election of Judges by the General Assembly and the Security Council

Candidates for election to the ICJ may be nominated by all States parties to the Statute of the Court. Candidates are proposed by the national groups in the Permanent Court of Arbitration (the "PCA") or similar national groups, if a State is not represented in the PCA.[7] Within the PCA, each State party has its own national group, which can be utilized to serve as members of an arbitral tribunal. For elections to the the ICJ, each national group may nominate no more than four persons, not more than two of whom shall be of their own nationality.[8] Once nominated, the UN Secretary-General submits the names of those nominated to the General Assembly and Security Council. The General Assembly and Security Council vote simultaneously, but independently, to elect Members of the Court. A candidate must receive an absolute majority from both the General Assembly and the Security Council to be elected. Additionally, no two Members of the Court may be of the same nationality, and in the event two persons of the same nationality receive the requisite votes for election, only the eldest candidate is considered elected.[9]

IV. Online Resources

Biographies of Newly Elected Members of the ICJ
Charter of the United Nations
Statute of the ICJ
International Court of Justice (Official Site)
List of Cases Brought Before the ICJ Since 1946

[1] See U.N. CHARTER art. 7, 92.
[2] See COVENANT OF THE LEAGUE OF NATIONS art. 14. See also the excellent history of the PCIJ and ICJ at the ICJ website.
[3] STATUTE OF THE INTERNATIONAL COURT OF JUSTICE.
[4] U.N. CHARTER art. 96; STATUTE OF THE ICJ art. 36.
[5] STATUTE OF THE ICJ art. 2.
[6] Id. art. 9.
[7] Id. art. 4.
[8] Id. art. 5.
[9] Id. art. 7-8, 10.

Tuesday, 19 July 2024

The International Court of Justice (ICJ) Decides the Case Concerning the Frontier Dispute (Benin/Niger)

<p><p><p><p><p><p><p><p><p><p><p><p><p><p><p><p><p><p>International Court of Justice (ICJ) decides the Case Concerning the Frontier Dispute (Benin/Niger)</p></p></p></p></p></p></p></p></p></p></p></p></p></p></p></p></p></p>

Map_1_1On Tuesday, 12 July 2005, the International Court of Justice (ICJ) announced its decision in the Frontier Dispute (Benin/Niger) case. This long-standing dispute between the West African States of the Republic of Benin (formerly known as the Republic of Dahomey) and the Republic of Niger concerns the entire territorial boundary between to the two States. The ICJ received the case, which the parties submitted jointly, on 3 May 2002. The ICJ's principal task in the case was to determine the definitive delimitation of the whole boundary between Benin and Niger. Sketch-Map No.1, from the ICJ's decision, illustrates the location of both Benin and Niger in West Africa (click on image for detailed view).[1]

I. Background: Factual and Procedural History

Since their independence from French colonial rule, Benin and Niger have disputed the entire course of their shared boundary. The disputed boundary is divided into two sectors: the Mekrou River sector and the Niger River sector. In the Niger River sector, Benin argues the boundary is the left bank of the river, keeping all navigable waters within the territory of Benin. Niger contends, however, that the true boundary is the middle line of the Niger River. In the Mekrou River sector, Niger contends the river and certain land beyond are the territory of Niger. Benin argues the Mekrou River's median line is the true boundary. Sketch-Map No. 2 provides a general view of the boundary region in question (click on image for detailed view).[2] Additionally, Niger and Benin hold disputed claims over a number of islands along both the Mekrou River and Niger River, especially the island of Lété (covering approximately 40 sq km with 2,000 inhabitants).[3]

Map_2Historically, the frontier dispute between Benin and Niger dates back to the "accession to independence of the territories that were formerly part of French West Africa...." Both Benin and Niger became independent States in August 1960.  A long unresolved matter, two Dahomey-Niger joint commissions met in 1961 and 1962, seeking a friendly settlement of their dispute. A focal point of the Parties disagreement focused on the island of Lété, and both parties agreed in 1965 that nationals of both States could inhabit the island until resolution of the frontier dispute. Further attempts to resolve the dispute occurred from 1995-2000, including six meetings of a joint commission created in April 1994. These efforts also failed to produce a negotiated solution. This commission, however, did suggest bringing "the dispute before the International Court of Justice by Special Agreement."[4]

A Special Agreement between Benin and Niger to jointly-submit the matter to a special chamber of the ICJ was signed on 15 June 2024 and entered into force 11 April 2002. On 3 May 2024 the parties filed the Agreement with the Registry of the ICJ. The ICJ retained jurisdiction over the case under article 26 of the Statute of the Court, which permits the formation of a special chamber of the Court for particular cases.[5] The Special Agreement asked the Court to determine "the course of the whole boundary between Benin and Niger and to specify to which State each of the islands in the River Niger sector belongs, and in particular the island of Lété."[6]

II. Applicable International Law

The Court, and the Special Agreement between Benin and Niger, recognized that the principle of uti possidetis juris should be applied in resolving the boundary dispute.[7] The "essence of the principle lies in its primary aim of securing respect for the territorial boundaries at the moment when independence is achieved." In Burkina Faso v. Mali, the Court noted that uti possidetis "freezes the territorial title" and strives to present a "photograph of the territory" at "the critical date" of independence.[8] To uphold the principle of uti possidetis juris in the present dispute, the ICJ recognized that it must determine "the boundary that was inherited from the French administration" at the moment of independence. This boundary was determined by French colonial law, known as "doit d'outre-mer". The Court recognized, however, that when reference is made to domestic law, like French colonial law, such law does not apply "in itself (as if there were a sort of continuum juris, a legal relay between such law and international law), but only as one factual element among others, or as evidence indicative of . . . the 'colonial heritage.'"[9] Additionally, the Court recognized that when applying the principle of uti possidetis juris, post-colonial effectivités "should not necessarily be excluded."[10] Effectivités meaning the conduct of Benin or Niger, respectively, as proof of effective exercise of territorial sovereignty.

III. The ICJ's Analysis: Resolving the Frontier Dispute

Before reaching the specific task of boundary creation, the Court provides a detailed colonial history of both Benin and Niger. Additionally, relevant colonial documents and maps are presented by the Court.[11]

The Court then considers the boundary in the Niger River sector and then specifies "to which Party each of the islands in the river belongs."[12] The Court first considers evidence presented by both Benin and Niger, which attempts to establish the boundary on the basis of colonial documents and decrees. After evaluating the evidence, the Court "concludes that neither of the Parties has succeeded in providing evidence of title on the basis of regulative or administrative acts during the colonial period." To determine the boundary, the Court then examines any evidence of effectivités during the colonial period.[13] On the basis of the exercise of administrative authority during the colonial period, the Court determines "the boundary between Benin and Niger follows the main navigable channel of the River Niger as it existed at the dates of independence."[14] From this decision, the Court presents a list of 154 geographic coordinates, based on latitude and longitude, providing the exact location of the boundary. Using this boundary-line, the Court determines the ownership of the islands within the Niger River (the island of Lété is deemed the territory of Niger).[15]

Next, the ICJ chamber considers the course of the boundary in the Mekrou River sector. After evaluating several colonial decrees, the Court finds a 1927 decree defined the colonial boundary at the date of independence to be the Mekrou River. Based on this finding, and the fact the Mekrou River is not navigable, the Court concludes the median line of the Mekrou River to be the boundary between Benin and Niger.[16]

III. Significance of the Frontier Dispute (Benin/Niger) Case

The Frontier Dispute (Benin/Niger) represents the ICJ's ability to resolve territorial disputes between States, utilizing the special jurisdiction provisions provided by the Statute of the Court. This case also upholds the principle of uti possidetis juris, especially when the boundaries of former colonial territories are being considered.   

[1]. Frontier Dispute (Benin v. Niger), 2005 I.C.J. 19 (July 12) (opinion available online at ICJ homepage).

[2]. Id. at 20.

[3]. Id. at 18.

[4]. Id. at 21.

[5]. Statute of the International Court of Justice, June 26, 1945, art. 26, 59 Stat. 1031.

[6]. Frontier Dispute (Benin v. Niger), 2005 I.C.J. at 17.

[7]. Id. at 21-22 (citing Frontier Dispute (Burkina Faso/Republic of Mali), 1986 I.C.J. 565-66, 586-87).

[8]. Id.

[9]. Id. at 23.

[10]. Id.

[11]. Frontier Dispute (Benin v. Niger), 2005 I.C.J. at 25-32.

[12]. Id. at 32.

[13]. Id. at 39-45.

[14]. Id. at 45.

[15]. Id. at 47-52.

[16]. Id. at 59-60.


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