Ius Gentium

University of Baltimore School of Law's Center for International and Comparative Law Fellows discuss international and comparative legal issues


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A Twisted Tale of Legitimacy – The ICJ’s Decisions in Latin America

Maya Zegarra

By agreeing to become member states of the United Nations (UN), states have accepted the legitimacy and authority of the International Court of Justice (ICJ). Chapter XIV of the UN Charter establishes the ICJ, as the “principal judicial organ of the United Nations”[1]. In fact, article 92 requires all members of the UN to comply with the decisions of any case to which they are a party.[2] Also, article 36 of the ICJ Statute states that the court has jurisdiction by special agreement or when member states agree to it. Additionally, article 2(3) of the UN Charter, requires all members to settle international disputes by peaceful means. In Latin America, most states have even gone a step further and have agreed to the jurisdiction of the ICJ via the Pact of Bogotá (April 30, 1948), agreeing that Latin American states should settle any disputes peacefully through the ICJ.

Peace-Palace

In theory, this seems to be a fair structure: a State agrees to be part of the UN, and therefore agrees to adhere to its Charter, which recognizes the ICJ as its highest judicial order. However, in practice, some states who were either unsuccessful or in disagreement with the ICJ’s decision in their case have rejected the ICJ’s ruling, questioned its legitimacy, or have gone as far as withdrawn from the ICJ’s jurisdiction.

On January 18, 1985, the U.S. informed the ICJ that it had withdrawn from the proceedings of Nicaragua v US,[3] arguing that the “the Court lack[ed] jurisdiction and competence.”  In 1986, the ICJ entered its decision on this case and found the U.S. in violation of international law, stating that the U.S. was “in breach of its obligations under customary international law not to use force against another State.”[4] The U.S. contested ICJ jurisdiction, claiming that the ICJ could not hear cases arising under multi-lateral treaties, and finally U.S. withdrew its consent to the Court’s compulsory jurisdiction.

On December 6, 2001, Nicaragua filed an application to introduce proceedings before the ICJ in order to determine whether Nicaragua or Colombia had sovereignty over a number of islands in the San Andrés Archipelago (Western Caribbean) and to determine the maritime boundaries between Colombia’s and Nicaragua’s continental shelf. This dispute goes back to the early 19th century, when Latin American states were fighting for their independence from Spain. On December 13, 2007, the ICJ delivered its opinion and concluded that the court had jurisdiction, under article XXXI of the Pact of Bogotá[5], and ruled that a group of the disputed islands belonged to Colombia, but extended Nicaragua’s maritime limits.

NicCol

Nicaraguan President, Daniel Ortega, gratefully stated, “The court has given to Nicaragua what belonged to us: thousands of kilometers of natural resources”. Meanwhile Colombian President Juan Manuel Santos openly rejected the ICJ’s judgment and stated that the ruling “cannot be implemented” claiming that new international borders can only be established by bilateral agreements.[6] Finally, President Santos decided to take extreme measures and announced that he was pulling Colombia out of the Pact of Bogotá, renouncing its membership on November 27, 2012.

On January, 27, 2014, the ICJ issued its judgment regarding the maritime dispute between Peru and Chile, which dates back from the Pacific War of (1879-1883). The ICJ decided that a maritime boundary already existed between Peru and Chile, and created a new method not offered by either party to create the demarcation.[7] The ICJ created a starting point (Marker 1) and a parallel maritime boundary line that extended 80 nautical miles (Point A), and then extended the boundary to 200 nautical miles (Point B), then dropped down the border at a Point C, where the maritime boundary would end for both states.

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Because the ICJ did not use the solutions proposed by either Peru or Chile, the judgment was received with nationalist reactions by both states. Former Chilean President, Sebastián Piñera said he “profoundly disagree[d] with the decision…and the economic loss of an area of between 20,000 and 22,000 km2 in favor of Peru.”, while the current President, Michelle Bachelet, stated this was a “grievous loss.” Peruvian President Ollanta Humala stated “the country will benefit from the exploitation of one of the richest marine areas in the world”. However, unlike in the Nicaragua-Colombia conflict, both states have agreed to implement the ICJ’s ruling gradually.

A more controversial case is Bolivia v. Chile, which is currently pending before the ICJ. Bolivia hopes to reclaim coastal access to the Pacific Ocean that it had lost after the Pacific War. Bolivia is requesting the ICJ to compel Chile to negotiate, in good faith, an agreement that would grant Bolivia access to the Pacific Ocean.

Bolivian President Evo Morales Ayma speech delivered on March 23, 2013 stated: “The sea we are claiming as a matter of justice is a sea for the people […] a sea for the Great Fatherland; the Bolivian people shall never renounce the sea, Bolivia shall never be at peace so long as the maritime issue remains unresolved, because giving a solution to this kind of issues is a part of integration”.[8] In fact, Chilean President Bachelet stated on national television that Chile will contest the ICJ jurisdiction in this case.[9] This is despite the fact that Chile had already accepted the ICJ’s judgment in the Peru v. Chile case.

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It is reasonable and understandable for a State to defend its sovereignty; this is in fact a well-known principle of international law, which supports the idea that a State has the ability to exercise control over its land and people. However, it is important to remember that International Law is based on consent and, importantly, good faith (pacta sunt servanda). If States agree to be bound by an agreement or treaty, it is central that they actually follow through and act according to what they have already agreed. The UN Charter and the Pact of Bogotá have acquired legitimacy because parties have voluntarily accepted them and agreed to act based on them.

The ICJ was created to help states peacefully resolve their conflicts and states agreed to be bound by the ICJ’s decisions. So, it is vital that countries who agreed to be bound by an agreement or treaty, act according to the principle of pacta sunt servanda (“agreements must be kept”). After all, international law has been created from the free will of states as expressed in conventions or by usages generally accepted as laws (i.e. customary international law). Withdrawing participation from the ICJ in these types of situations gives the impression of adopting a sore-loser attitude – if a country cannot win before the ICJ, then they will stop participating. When this happens, it chips away at the legitimacy of the ICJ and stops international law from advancing.

 

Maya Zegarra is a third-year student at the University of Baltimore School of Law, planning to graduate in May 2015 with a concentration in International Law. She has a Sociology degree, and is fluent in Spanish, German, English and French. Maya grew up in Peru and attended a German high school, where she participated in a student exchanged program and lived in the Baden-Württemberg area in Germany for four months.

During the summer after her first year of law school, Maya studied abroad in France, where she focused on French Law, European Union Law, and Comparative Fundamental Rights. While in France, she interned with an international and criminal defense attorney. Most recently, she participated in the Annual International Humanitarian Law Seminar, hosted by University of Virginia Law, in March 2014. Her primary interests are international law and international humanitarian law. Through her internships Maya has worked on cases related to asylum, refugee, and immigration law.

In addition to being a Fellow at the Center for International and Comparative Law, Maya currently serves as the Publications Editor for the Journal of International Law, President of the Latin American Law Student Association, Vice-President of International Law Society, Treasurer of the Immigration Law Association, and 3L Representative of the University of Baltimore Students for the Public Interest. Maya is also a Maryland Rule 16 Student Attorney at the Immigrant Rights Clinic.

 

[1] U.N. Charter art 92.

[2] U.N. Charter art 94.

[3] Military and Paramilitary Activities in and Against Nicaragua (Nicar. v. U.S.), 1986 I.C.J. 14 (June 27).

[4] Id.

[5] American Treaty on Pacific Settle “Pact of Bogotá”, Apr. 30, 1948, 449 U.N.T.S. 30.

[6]  UN ruling gives Colombia isles but Nicaragua more sea, BBC (Nov. 19, 2012), http://www.bbc.com/news/world-latin-america-20391180.

 

[7] Peru v. Chile, 2014 I.C.J. 137 (Jan. 27).

[8] Minister of Foreign Affairs of Bolivia, The book of the Sea 6 (Strategic Management For Maritime Vindication Edition, 2nd rev. ed. 2014).

[9] Bachelet: Chile will challenge ICJ jurisdiction in Bolivia case, The Santiago Times (Jul. 8, 2014), http://santiagotimes.cl/bachelet-chile-will-challenge-icj-jurisdiction-bolivia-case/.

 

 

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The ICJ Got it Right: Why Japan’s Whaling Practices Could Not Pass as Scientific Research

The ICJ Got it Right:  Why Japan’s Whaling Practices Could Not Pass as Scientific Research

Jillian Bokey

In a case that took almost four years to play out, the International Court of Justice (ICJ) has finally handed down a decision in Whaling in the Antarctic (Australia v. Japan).  On May 31, 2010, Australia filed its application instituting proceedings against Japan over Japan’s controversial JARPA II (Japanese Whale Research Program under Special Permit in the Antarctica) program, which commenced in late 2005.[1]  Australia alleged that Japan was breaching its obligations under international law, specifically, those obligations outlined in the International Convention for the Regulation of Whaling (ICRW).[2]  As remedies, Australia requested that the ICJ declare Japan to be in breach of their international obligations in their implementation of JARPA II, to cease JARPA II activities, to revoke any authorizations and permits allowing activities, and to have Japan provide assurances and guarantees that they will take no further action under JARPA II—essentially Australia was looking for the immediate cessation of whaling activities by Japan in the regions in question.[3]

The portions of the ICRW in question are Article VIII, paragraph 1; paragraph 10(e) of the Schedule to the ICRW; paragraph 10(d) of the Schedule; and paragraph 7(b) of the Schedule.  For the purposes of laying a foundation, a summary of each is provided[4]:

Provision Summary
Article VIII, paragraph 1 Party may grant to its nationals a special permit authorizing that national to kill, take or treat whales for scientific research; actions pursuant to this Article are exempt from the operation of the Convention.
Paragraph 10(e) of Schedule Catch limits for the killing for commercial purposes of whales from all stocks, starting with the 1985/1986 season shall be ZERO.   Japan objected at first then withdrew its objection.
Paragraph 10(d) of Schedule No taking, killing or treating whales, except minke whales, by factory ships or whale catchers attached to factor ships.
Paragraph 7(b) of Schedule Prohibits commercial whaling in the Southern Ocean Sanctuary region.  Objected to by Japan.

Australia believed that Japan was conducting commercial whaling activities under the guise of scientific research.  By way of example and explanation for that hypothesis, Australia noted the following in its Application[5]:

  1. Around the same time that Japan purportedly ceased commercial whaling, they launched JARPA, under the context of Article VIII, paragraph 1 of the Convention.
  2. In the seasons between 1987 and 2005, Australia alleged that Japan had killed approximately 6,800 Antarctic minke whales, compared to the 840 Japan had killed globally  for scientific research in the thirty-one (31) years prior to the moratorium (prior to the limit being set at zero by paragraph 10(e) of the Schedule to the Convention).
  3. JARPA II commenced in 2005, this time including fin and humpback whales along with minke whales, in the quota numbers.
  4. Japan refused to consider or comply with recommendations of the International Whaling Commission (IWC).

Japan continued to contend that the purpose of JARPA II was to “undertake research on the appropriate means of managing whaling.”[6]

The ICJ was faced with a task of applying the Convention and its Schedule to Japan’s controversial JARPA II program.  The ICJ, in doing so, did not find it necessary, and did not feel that it was called upon, to resolve any matters of scientific or whaling policy, as the court understood that the global community’s views differ on whaling.[7]  Therefore, the ICJ carefully articulated the appropriate standard of review for examining a grant of a special permit that authorizes the killing, taking and treating of whales pursuant to Article VIII, paragraph 1 of the Convention—they must determine 1) whether scientific research is involved and 2) whether the program’s design and implementation are reasonable, in the use of lethal methods, to achieving the program’s stated objectives.[8]  While Australia provided a set of characteristics of scientific research, the ICJ declined to agree or provide their own list of criteria.  Instead, they focused on whether the use of lethal methods is for purposes of scientific research.[9]  Considerations for this include any decisions regarding use of lethal methods, the scale of lethal sampling, the methodology Japan used in determining sample sizes, target sample sizes versus actual take, timeline of the program, the scientific output of the program, and how much, if at all, the program coordinates with other scientific research programs or activities that are related to the object of Japan’s program.[10]  Note that the intentions of the government officials are not included in the list of considerations posited by the Court.[11]

In applying these considerations to the Japan’s JARPA II program, the ICJ faulted Japan in many areas:

  1. There was no finding that Japan conducted any studies on the possibility of using non-lethal methods, in setting sample sizes, or maintaining sample sizes.[12]
  2. There was no finding that Japan conducted studies regarding whether fewer lethal samples and more non-lethal samples.[13]
  3. The objectives and methods were quite similar between JARPA and JARPA II, so the court questioned why Japan was doubling the sample sizes for Antarctic minke whales and now also including samples of fin whales and humpback whales.[14]
  4. Japan was taking significantly fewer whales than what the target sample sizes called for, but still maintained those targets without any explanation.[15]
  5. The timeframe is not determinable and does not have a terminating date in sight.[16]
  6. Only two papers resulted from the first 6-year phase of the program, and the court found that the papers do not even relate to the stated objectives of JARPA II.[17]
  7. The level of cooperation with other research projects and programs was insufficient.[18]

 

Because the objectives between JARPA and JARPA II were so closely related and similar, the ICJ found it unreasonable for such an increase in sample sizes and the inclusion of two additional species.[19]  Furthermore, the take levels, with the exception of the first two seasons of the JARPA II program, had been significantly less than the target sample levels, with no adjustment to the target levels to match the actual take numbers while Japan continued to rely upon JARPA II’s research objectives to justify the use and extent of lethal sampling called for in the program.[20]  Furthermore, the open-ended timeframe of the JARPA II program along with the lack of scientific contribution or output and lack of cooperation with other related scientific projects did not give the impression of a legitimate scientific research program.[21]

For the foregoing reasons, the ICJ found, in a 12-4 decision, that even though the activities of the program could generally be deemed as scientific research, the evidence demonstrated that the design and implementation of the program were not reasonable to meet the stated objectives of JARPA II.[22]  What does this mean for Japan?  The activities associated with JARPA II are not being conducted for the purposes of scientific research, and therefore, the exception permitted within Article VIII, paragraph 1, of the ICRW, does not apply to Japan’s program.[23]  Because Japan’s activities cannot legally be characterized as scientific research, Japan is in breach of paragraph 10(e), 10(d), and 7(b) of the Schedule of the ICRW.[24]  As such, the ICJ ordered Japan to revoke all permits issued under JARPA II and to refrain from granting any more. [25]

The ICJ seemed to be extremely cautious to avoid delving into the intricacies of scientific explanation and reasoning.  The Court believed, as they echoed in their judgment, that they can reach a decision through objective reasoning regarding whether the design and implementation of the program in question were reasonable in light of the program’s objectives, without conducting a scientific analysis of the activities, methods, or policy themselves.  Leaving science to scientists seemed to be the goal of the ICJ in this case—and that was probably a wise decision.  Having the history of the JARPA program certainly assisted the Court in its analysis of the reasonableness of JARPA II’s methods.  However, because the Court did not rely solely on the comparison between the two programs in their analysis of whether the methods were reasonable to the objectives, I believe that the standard of review articulated by the ICJ in Whaling in the Antarctic will still be applicable to future situations and cases where the program potentially in question is the first of its kind for that country—meaning that there would be no historical program perspective.  I am of the opinion that the ICJ got the analysis correct.  Taking all of the evidence together, Japan’s design and implementation of JARPA II combined with the lethal sampling were not reasonable in achieving the program’s stated objectives.  I believe that Japan was utilizing Article VIII, paragraph 1, of the ICRW as a loophole to the moratorium on commercial whaling, to which they originally objected but then withdrew.

Whether or not Japan will adhere to the ICJ ruling is a question that will be answered in the coming years.  The ICJ and the international community anticipate Japan’s adherence to the decision.  Japan has halted their whaling plans for the upcoming 2014-2015 season.[26]  However, there are already reports of plans to head back to the Antarctic to conduct whaling activities following the 2014-2015 season.[27]

 

Jillian Bokey is a CICL Fellow for 2013/2014 and is a fourth-year, part-time evening student at the University of Baltimore School of Law. She is a graduate of the Pennsylvania State University where she received a B.S. in Business Management with a minor in the Legal Environment of Business. Jillian is the Managing Editor for the University of Baltimore Journal of International Law. While in law school, she was Director of Client Employee Relations at Tidewater Property Management, Inc. However, she has now begun her transition into a legal career, accepting a position as a law clerk at a firm in Annapolis as of January 2014. For Jillian, studying international law is interesting because it applies across different areas of practice. She is also interested in how various countries view and interpret international law and how that affects the progression of international law.

[1] Whaling in the Antarctic (Austl. v. Japan:  NZ intervening), Application Instituting Proceedings [hereinafter Application] (May 31, 2010), available at http://www.icj-cij.org/docket/index.php?p1=3&p2=1&case=148&code=aj&p3=0.

[2] Id.

[3] Id.

[4] Id.; International Convention for the Regulation of Whaling [hereinafter ICRW], art. VIII, Dec. 2, 1946, 62 Stat. 1716, 161 U.N.T.S. 72; ICRW, Schedule, ¶¶ 7(b), 10(e), 10(d).

[5] Application, supra note 1.

[6] Id.

[7] Whaling in the Antarctic (Austl. v. Japan:  NZ intervening), Summary of the Judgment of 31 March 2014, 4 (Mar. 31, 2014), available at http://www.icj-cij.org/docket/index.php?p1=3&p2=1&case=148&code=aj&p3=5

[8] Id.

[9] Id.

[10] Id.

[11] Id. at 5.

[12] Id. at 6.

[13] Id. at 6-7.

[14] Id.

[15] Id. at 7.

[16] Id. at 8.

[17] Id.

[18] Id.

[19] Id.

[20] Id.

[21] Id. at 8-9.

[22] Id. at 9.

[23] Id.

[24] Id. at 9-10.  Note that they are in breach of paragraph 7(b) only as to the taking of fin whales and not to Antarctic minke whales since Japan objected to this paragraph at the time it was created.  Id.

[25] Id. at 10.

[26] See Japan Cancels Next Antarctic Whaling Hunt after ICJ Ruling, Global Times (Apr. 3, 2014, 11:38pm), http://www.globaltimes.cn/content/852633.shtml.

[27] See Andrew Darby, Japanese Whalers Plan New Antarctic Hunt, sydney morning herald (Apr. 12, 2014, 1:56pm), http://www.smh.com.au/environment/japanese-whalers-plan-new-antarctic-hunt-20140412-36jnf.html; See Japan Cancels Next Antarctic Whaling Hunt after ICJ Ruling, Global Times (Apr. 3, 2014, 11:38pm), http://www.globaltimes.cn/content/852633.shtml.