Tag Archive | "ICJ"

70 Years of Justice

Meeting in The Hague on 3 February 2015, the International Court of Justice (ICJ) dismissed genocide claims by Croatia and Serbia. UN Photo/CIJ-ICJ/Frank van Beek.

Meeting in The Hague on 3 February 2015, the International Court of Justice (ICJ) dismissed genocide claims by Croatia and Serbia. UN Photo/CIJ-ICJ/Frank van Beek.

This week we celebrate a very important birthday – on April 18th, 1946, the International Court of Justice (ICJ) was born. Since its birth 70 years ago, the ICJ has had the opportunity to hear 161 cases. These cases have been entered from large countries like the United States and the former Soviet Union all the way to small ones like Burkina Faso and Malta. I thought I would take this opportunity to explore the history and purpose of this very important court as it’s not one that many American jurists get the opportunity to encounter.

To do so, we need to go back a little further in time. You may be surprised to learn that what Americans know as “alternative dispute resolution” actually predates judicial settlement in history. Mediation had its origins in ancient India and the Islamic world, while arbitration was used throughout ancient Greece, tribal Arabia, and medieval Europe. Finally, in 1899, the International Court of Arbitration was established by the first Hague Peace Conference in the newly built Peace Palace. By the time judicial settlement took its place in the international realm, World War I had just come to an end. The precursor to the ICJ, the Permanent Court of International Justice (PCIJ), was established by the League of Nations in 1920 and heard 29 cases that mostly dealt with issues from WWI.

The PCIJ came to an end when the League of Nations was dissolved and with the establishment of the United Nations, so came the ICJ. This coincided with World War II and a whole new set of issues. Article 1 of the UN Charter defines the ICJ’s purpose is “to bring about by peaceful means, and in conformity with the principles of justice and international law, adjustment or settlement of international disputes or situations which might lead to a breach of the peace.” Also seated in the Peace Palace at The Hague, Netherlands, the ICJ is composed of 15 judges elected for nine-year terms. Besides settling disputes between nations (contentious procedure), the ICJ also issues advisory opinions on legal questions submitted by UN bodies and agencies (advisory procedure).

However, advisory procedure should definitely not be seen as secondary to contentious procedure. In 1947, the ICJ decided on the conditions necessary for a state to be admitted to the UN, something that still controls today. 1950 brought about procedure regarding the genocide convention following WWII. 1993 and 1995 brought about advisory procedure on the legality of the threat and use of nuclear weapons. Of course, contentious procedure has made its mark on the world too. The Nottebohm case (1950) has been a cornerstone of nationality determinations the world over. The United States Diplomatic and Consular Staff in Tehran case (1980) was brought by the US against Iran following the Iran hostage crisis. Finally, another 10 cases are currently in progress and range on issues from maritime borders to the cessation of the nuclear arms race and disarmament.

Whether or not you believe that international public law is important, the ICJ has made determinations that affect you. Whether you live on a small fishery on the coast of Iceland, drive a gas-powered tractor on a potato farm in Idaho, or dream of a world where nuclear missiles are no longer a threat, your life has been shaped by the decisions of the ICJ. The last 70 years have moved our world in a positive direction. Happy Birthday, ICJ – cheers to the next 70.

Lorne Hiller is a 3L at the University of Denver Sturm College of Law and the Executive Editor of the Denver Journal of International Law and Policy.

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Panmunjom

Critical Analysis: North and South Korea’s Talks Working Towards Conflict Resolution

by Samantha Peaslee, Denver Journal of International Law and Policy

October 19, 2014

In mid-October 2014, North and South Korea resumed talks at Panmunjom.  While the two countries are technically still at war, as they never entered into a truce after the Korean War in 1953.  The two countries have proceeded through various discussions and attempts at conflict resolution throughout the years with varying levels of success.  The most recent talks occurred in February 2015, when the two states reached an agreement that relatives from either country to meet each other for the first time since the Korean War.  Both sides also agreed to tone down the harshness of their rhetoric when speaking about each other.  In August 2015, South Korea proposed a new round of talks, hoping for another reunion visit to take place in early September for Chuseok (Korean Thanksgiving).  On October 4, 2015, high-ranking North Korean officials came for the closing ceremony of the Asian Games and agreed to resume formal high-level talks.  While the talks looked momentarily like they would not proceed after North Korea fired at balloons carrying propaganda against North Korean leader Kim Jong-un, the talks proceeded at Panmunjom anyway.

Panmunjom

Flag near the village of Panmunjom in the demilitarized zone between North Korea and South Korea.
Photo Credit: Reuters/Lee Jae-Won.

Each set of talks between North and South Korea has increasingly important implications for international law.  North Korea still does not officially recognize South Korea as an independent state, but as a part of North Korea.  However, each time it treats South Korea as a state, the North weakens the strength of its claims over the South.  While North Korea continues to act as if the two are not separate states in some ways (such as refusing to recognize the Northern Limit Line), engaging in high-level talks suggests that it does in fact recognize South Korea’s statehood.  This could be a very important step for reconciliation between the two states.

These talks could also be interesting to the legal world because they may lead to talks about all conflict disputes and uses of force between the two states over the last several years.  Note that neither North nor South Korea has accepted compulsory jurisdiction to the International Court of Justice.  Therefore, any dispute resolution must come from the two states themselves or allies acting as intermediaries.  The subject matter of this level of talks may range from the recent border altercations to another reunion between citizens to the lifting of the May 24 Measure, a trade sanction imposed on North Korea by South Korea in 2010.  These are topics that could fall within the purview of the ICJ to mediate, but the states have instead decided to work out the consequences and remedies amongst themselves.

While history says that jumping to conclusions about the result of these talks would be unwise, as each past set of talks has failed to prevent incidents between the two states, one should not believe that these talks are useless.  For each step towards reconciliation, whether that means obeying borders or lifting sanctions, the two countries fall more in line with recognized international law.  For a dispute as long as the one between these two states, that is no small feat.

Samantha Peaslee is a 3L law student at the University of Denver Sturm College of Law and Senior Managing Editor for the Denver Journal of International Law and Policy.

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Critical Analysis: Pride and History at Stake in ICJ Ruling Defining Maritime Border Between Peru and Chile

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The ICJ redefines the Pacific maritime boundary between Peru and Chile. Image Source: AFP

About a month ago, the International Court of Justice at the Hague (“ICJ”) issued a ruling in a dispute between Peru and Chile that was instigated in 2008. Over 14,000 square miles of ocean in international waters were at stake. The ruling granted Peru control over the majority of the disputed waters, but Chile retained some of the most fertile fishing waters.  Peru and Chile are the world’s largest exporters of fish, making it a primary economic resource for both countries. Peruvians consider the ICJ ruling an opportunity to gain national pride and redemption after being defeated in the War of the Pacific over a century ago.

While Peru filed the action in 2008, this dispute reaches back to the 19th century. The War of the Pacific centered on a conflict over the nitrate industry, which resulted in a Chilean victory over both Peru and Bolivia. This gave Chile the power to annex coastal provinces. The War of the Pacific created uncertainty regarding coastal boundaries that continued into the 20th Century.

A maritime boundary was partially created in 1952 upon the signing of the Santiago Declaration. The Declaration’s purpose was to establish sovereignty and exclusive jurisdiction over the waters that are adjacent to Peru, Chile, and Ecuador. The initial concern involved problems with whaling fleets that threatened the resources in the area. However, some 30 years later, Peru took the position that the maritime territory was not adequately defined.

In 1986, four years after the U.N. Convention on the Law of the Sea went into effect, Peru visited Chile with the intent of re-negotiating the water territories. Chile was uncooperative and was not amenable to negotiation, which led to this suit in the ICJ. Peru asked the ICJ to define the maritime border between Peru and Chile based on the criteria of equidistance in the contested area. Chile contended that the border should extend parallel to the equator. Because of these disagreements, Peru wanted the ICJ to legally define both countries’ maritime territory.

The ICJ’s ruling, which cannot be appealed, struck a balance between the two countries’ arguments by announcing that a parallel border already existed that extended 80 nautical miles to the equator, and then the ICJ “drew a line southwest to where the countries’ 200-mile territorial waters end.” While the ICJ largely agreed with Peru’s position, Chile retained much of the fishing territory. Chile is still concerned, however, about the effect the decision will have on its fishing industry. Peru’s victory is primarily a “symbolic one: for the first time it has won a battle with Chile, and it has done so by peaceful, legal means and through professional diplomacy.” Because Chile retains much of the fruitful waters, there is promise that relations between the two countries will improve. However, Peru remains apprehensive with regard to whether Chile will enforce the ruling adequately and still expects protesting from Chilean citizens. While some Chilean fishermen have protested in a northern port, protests have not been overwhelming so far and local authorities have been able to control the aftermath.

Lydia Rice is a 3L and Candidacy Editor of the Denver Journal of International Law & Policy

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Japanese whaling vessel

Critical Analysis: Australia and Japan head to the ICJ

From June 26th to July 16th the International Court of Justice (ICJ) will hear arguments from Australia and Japan over the dispute concerning Japan’s whaling program. This will be Japan’s first appearance as a party before the ICJ. The court proceeding began in 2010 and has so far cost Australia over $20 million dollars.

Australia and Japan are key trading partners and both countries have said that the ICJ is the appropriate forum for a dispute between friends; yet, it is believed Japan will defend their case by arguing that the ICJ lacks jurisdiction and that the Japanese whaling program is not a violation of international obligations because it is only for scientific purposes. The ICJ is known as the World Court and has dual jurisdiction – to resolve disputes in accordance with international law that have been submitted to it by States or to give advisory opinions at the request of the UN or other specialized agencies.

Australia maintains that this case falls under the first prong of the court’s jurisdiction. Australia believes Japan has breached its duty under the 1986 International Whaling Commission ban on commercial whaling by hunting the whales and labeling it a scientific program. Australia states that Japan has killed over 10,000 whales since 1988. In comparison, in the 31 years prior to the ban, only 840 whales were killed for research. Tension over this issue between the friendly nations has been building since 1999 when Australia named the Southern Ocean a sanctuary for whales. Australia holds strong to the position that commercial whaling should be outlawed.

Japanese whaling vessel

A Japanese vessel engaged in what Japan describes as scientific research (Jeremy Sutton-Hibbert)

Japan argues that their whaling program is for scientific research to prove commercial whaling is viable and therefore exempt under Article 8 of the International Convention for the Regulation of Whaling. Although the whales are killed for scientific research, the whales are brought back to Japan and sold for meat,which is why Australia believes the program is actually a commercial enterprise. Japan defends their right to whaling as part of a culinary tradition and cultural practice; however, whale consumption is significantly low in Japan and it is reported that 5,000 tons of unsold meat remains in storage.

Those who side with Australia note that scientific research on sustainable whale populations can be done without slaughtering the animals. Scientists can use listening devices to track the whales, locate them, and then attach satellite devices to learn more about their breeding and feeding behaviors and patterns. Asking the court to preserve the whales may seem like an emotional stance but a decline in the species affects the marine ecosystem and tourism connected with whale watching expeditions.

The ICJ has also permitted New Zealand to intervene in support of Australia’s position but the ICJ did not grant New Zealand status as a party to the case. Conversely, Norway and Iceland, which have commercial whaling programs, have not moved to intervene in support of Japan’s arguments that whaling is a cultural tradition. Not only is Australia arguing that commercial whaling should cease under the International Whaling Commission ban, but the Animal Welfare Institute has also cited that any attempts, including those by both Norway and Iceland, to sell whale products is banned by the Convention on International Trade in Endangered Species of Wild Fauna and Flora. Iceland has one company that hunts fin whales and the only country it sells to is Japan. However, Iceland also allows for the hunting of endangered minke whales and has exported 3,000 tons of whale meat to Japan since 2006.

The final ICJ decision could impact Japanese public perception on the practice of whaling, which in turn may affect Iceland’s trade with Japan. The case is a large gamble for conservationist nations because the ICJ’s 16 judge panel decision will be final, binding, and with no appeal; the outcome could risk the lives of numerous whale populations. The Attorney-General Mark Dreyfus is hopeful that Australia will win the case and that the ICJ decision will come before the end of the year, preventing the next season of hunting. This case is one that all international and environmental lawyers should tune in for – the public hearings will be broadcast live on the International Court of Justice’s website at www.icj-cij.org/presscom/multimedia.php?p1=6.

Kristen Pariser is a rising 3L, a Staff Editor for the Denver Journal of International Law and Policy, and Executive Editor for The View from Above blog.

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International Law Carries the Day in the Nevada Supreme Court

Earlier this month, the Nevada Supreme Court became only the second US court to recognize its consular obligations under international law articulated by the International Court of Justice.  Yes, that’s right; Nevada’s high court responded to the ICJ’s call in Avena and Other Mexican Nationals to review certain cases for prejudice stemming from violations of foreign nationals’ consular rights.  This excites me not only because I am an advocate for the progressive development of international law, which this certainly is, but also because I am a Native Nevadan.  It’s always nice to see when my state gets it right.

Background.

After a swath of Mexican nationals were sentenced to death in the United States, Mexico brought a claim to the International Court of Justice (ICJ) in 2003 contending that many of these individuals had been sentenced without having been informed of their right to meet with a Mexican consular official.  Having the opportunity to meet with a consular official after being accused of a serious crime in a foreign country is a vital right enshrined in Article 36 of the Vienna Convention on Consular Rights.  This right is so important because consular officials can help a national bridge cultural and language misunderstandings, as well as by conducting their own investigations and, if necessary, intervening in a national’s case.

United States Responds.

Consular Duties
(SF Gate)

Responding to the ICJ’s 2004 ruling, the United States did two things.1  First, in late February 2005, President George W. Bush sent a memo to Attorney General Alberto Gonzales stating that the US would discharge its international obligations by having state courts review the cases based on comity.  Ignoring for the moment that the President cannot require state courts to do this, this is not exactly what the ICJ required.  In this regard, comity merely gives effect to another court’s decision based on one court’s discretionary determination that another court’s decision is worthy of enforcement.  Under a comity analysis, a state court could decline to reexamine these cases.  The ICJ, however, expected action.

Second, in early March 2005, the Bush Administration issued a statement saying that the US remained committed to international law and reaffirmed that state courts will review the disputed cases, but that the US resents the international court stepping in to review domestic criminal matters.  Consequently, the US withdrew from the Vienna Convention on Consular Relations’ Optional Protocol on Dispute Resolution, meaning that the ICJ no longer has compulsory jurisdiction over consular disputes involving the United States.

In 2008, the US Supreme Court weighed in on the President’s memo and American consular obligations in light of the ICJ’s judgment.  In Medellín v. Texas, the Court concluded that the ICJ did not preempt state procedural rules barring prisoners from raising consular rights violations in a habeas corpus petition.2  Justice Stevens, however, in his concurrence chastised Texas for embroiling the US in diplomatic controversy and encouraged states to voluntarily comply with the ICJ ruling.3  Consequently, relief for the 51 Mexican nationals on death row depends on the discretion of state courts.  For most of the 51, this is not a bright prospect.

Back to Nevada.  

Nevada Supreme Court
(Wild Nature)

The facts of this case are brutal: Carlos Gutierrez subjected his toddler daughter to a pattern of abuse that culminated in her death and hid her body in a remote valley.  He was charged with first degree murder and pleaded no contest.  A three-judge panel subsequently sentenced him to death.  Interestingly, his first appeal did not mention his consular rights.4

Mr. Gutierrez, however, is one of the named Mexican nationals on death row that Mexico identified in the Avena case.  In light of this, the Nevada Supreme Court reconsidered his case.  In the opinion, the Court agreed with Justice Stevens’ concurrence and reviewed Mr. Gutierrez’ case for potential prejudice.  Indeed, the Court concluded there very likely was prejudice.  First, the nearest Mexican Consulate asserted that, had they been notified, they would have helped Gutierrez with legal and language barriers.  Second, and most telling given that Mr. Gutierrez was relatively uneducated and spoke little English, the original trial was marred by allegations of procedural problems.  The official translator later admitted to lying about his education and certification, and there were concerns about the accuracy of his translation.  Ultimately, the Court concluded it did not have sufficient information to determine prejudice and remanded to the trial court for an evidentiary hearing.

Although the Nevada Supreme Court ultimately reached the right result, it did so in a less robust way than I would have liked.  The US Supreme Court acknowledged that “International law is part of [United States] law.”5  The Supremacy Clause itself incorporates treaties into federal law, which in turn supersedes conflicting state laws6 and US law are presumed to comply with international law.7  Therefore, the ICJ’s interpretation of the Vienna Consular Convention is binding on American courts and should not have wrestled its way through the Executive bureaucracy and the federal courts.  But unfortunately we don’t live in this ideal and automatic world.  Instead of complaining, however, I shall be content knowing that my state had a part in progressing the primacy of international law.

  1. See U.S. Strategy for Responding to ICJ’s Avena Decision, 99 Am. J. Int’l L. 489 (2005).
  2. 552 U.S. 491, 498-99 (2008).
  3. Id. at 536 (Stevens, J., concurring).
  4. Gutierrez v. Nevada, 920 P.2d 987 (Nev. 1996).
  5. Paquete Habana, 175 U.S. 677, 700 (1900).
  6. U.S. Const. art. VI, cl. 2; United States v. Pink, 315 U.S. 203, 230 (1945).
  7. See Murray v. Schooner Charming Betsy, 6 U.S. 64, 118 (1804) (Marshall, C.J.).

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