On 7 July 2016, during a visit to Beijing, United Nations (“UN”) the then Secretary-General Ban Ki-moon met with Chinese President Xi Jinping and Foreign Minister Wang Yi. The timing was unfortunate, owing to the imminent ruling of the United Nations Convention on the Law of the Sea (“UNCLOS”) Arbitral Tribunal on the South China Sea, handed down less than a week later.
The politics of nuclear disarmament have, in recent times, simmered as a threat to the international order, enlivened every so often by a new round of talks or a major push for reform. On rare occasions, the issue has spilled into the international legal sphere.
Our blog mini-series, co-hosted with the ICRC, wraps up with a post by Associate Professor Rob McLaughlin, Co-Director of the ANU Centre for Military and Security Law. Dr McLaughlin shares his reflections on common article 2 and the important question of when IHL must be applied.
In March, the ICRC released an updated Commentary on the First Geneva Convention of 1949. This is the first instalment of six new commentaries aimed at bringing the interpretation of the Geneva Conventions and their Additional Protocols of 1977 to the 21st century. In this blog mini-series co-hosted with the ICRC, three authors will share their perspective on some of the fundamental obligations enshrined in the Geneva Conventions and the evolution of the application and interpretation of these important provisions.
Jean-Marie Henckaerts, ICRC’s Head of the Commentaries Update project, kicks off the mini-series with an examination of why the commitment by States to respect and ensure respect for IHL is more than just a “loose pledge”, and what measures States can take to fulfil this obligation.
In the post-9/11 zeitgeist, the ever-present fear of terrorism has reignited debate regarding whether a State has the right of self-defence against attacks by non-State actors. As Australia targets non-State actors such as ISIS and Al-Qaeda fighters in self-defence, the legality of such actions in international law must be questioned.
This month, three contentious cases have been instituted by States in the International Court of Justice (ICJ).
This breaks a dry spell for the ICJ, where no proceedings were commenced in 2015.
On 24 September 2015, the International Court of Justice (ICJ) handed down judgment in the preliminary objections phase of a dispute between Bolivia and Chile. Contrary to Chile’s submissions, the ICJ determined that it had jurisdiction to consider the dispute, which concerns whether Chile is obliged to negotiate and grant sovereign access to the Pacific Ocean to the otherwise landlocked Bolivia. The proceedings are interesting not only because of the Bolivia’s intriguing claim, but also because they relate to peace treaties signed by the parties at the start of the 20th century.
Context of the dispute
As The Economist succinctly puts it, ‘Bolivia has all the trappings of a maritime power except an actual coastline’, having a merchant navy and a National Day of the Sea. Indeed, at independence in 1825, Bolivia had territorial access to the Pacific Ocean. In 1879, territorial disputes over the Atacama Desert (and the valuable mining opportunities within) led Chile to declare war on Bolivia and its ally Peru. An initial armistice between Chile and Bolivia was signed in 1884 and a final settlement was reached in 1904 (1904 Peace Treaty), under which Bolivia ceded its coastal territories and became a landlocked country. Bolivia has attempted to reclaim the territory through diplomatic means for the past century, most recently inserting its claim into its 2009 Constitution (see article 267 of the Constitución Política del Estado de Plurinacional de Bolivia).
In 1948, Bolivia and Chile signed the American Treaty on Pacific Settlement (also known as the Pact of Bogota), a treaty committing states to the peaceful resolution of disputes and conferring jurisdiction on the ICJ (under article XXXI). Relevantly, article VI of the Pact of Bogota states that the procedures established by the treaty
may not be applied to matters already settled by arrangement between the parties, or by arbitral award or by decision of an international court, or which are governed by agreements or treaties in force on the date of the conclusion of the present Treaty.
The effect of this article is to exclude from the ICJ’s jurisdiction any dispute that had been settled prior to the Pact of Bogota.
History of the proceedings — Application by Bolivia
Bolivia filed its application with the ICJ in April 2013, requesting that it make declarations that Chile is obliged to negotiate sovereign access to the Pacific Ocean for Bolivia, in good faith, and that Chile had breached this obligation. The ICJ’s jurisdiction over the dispute was based on article XXXI of the Pact of Bogota.
The substance of Chile’s obligation is founded on a number of diplomatic exchanges and resolutions since the 1904 Peace Treaty, including:
- an exchange of notes (1950) and Memorandum of Understanding (1961) between the two governments to the effect that the two states should enter into negotiations for Bolivia to be given its own access to the Pacific Ocean (Application –);
- Negotiations in 1975 between the two governments, during which Chile reaffirmed its in-principle preparedness to negotiate with Bolivia. During negotiations in 1986 Chile had rejected Bolivia’s proposals (Application –);
- A joint agenda in 2006 by the two governments on issues that included Bolivia’s maritime access (Application );
- Resolutions of the General Assembly of the Organization of American States urging the two states to negotiate coastal access for Bolivia (Application –); and
- Statements and requests by the President of Bolivia (Application –).
The effect of these events as alleged by Bolivia is that
Chile has committed itself, more specifically through agreements, diplomatic practice and a series of declarations attributable to its highest‑level representatives, to negotiate a sovereign access to the sea for Bolivia. Chile has not complied with this obligation and, what is more, at the present date Chile denies the very existence of its obligation (Application ).
History of the proceedings — Objection by Chile
Chile filed a preliminary objection to Bolivia’s application in July 2014, claiming that:
- The nature of the dispute concerns territorial sovereignty and Bolivia’s access to the Pacific;
- These are matter that were settled conclusively in the 1904 Peace Treaty, and any subsequent negotiations or statements concern the same substantial matters; and
- Consequently, the dispute is not justiciable by operation of article VI of the Pact of Bogota, which excluded disputes already settled by treaty or award.
In its response, Bolivia stated that Chile has misconstrued the subject matter of the dispute — it is about obligations to negotiate that are separate from the 1904 Peace Treaty. The judgment of the ICJ made in December concerned whether Chile’s objection was correct and what the proper subject matter of the dispute was.
Judgment of the majority
The ICJ handed down several judgments, but ruled 14–2 in favour of Bolivia, rejecting Chile’s objections. First, the majority judgment rejected Chile’s characterisation of the subject matter of the dispute. The Court determined that it is not being asked to determine the character of what Bolivia’s access to the ocean is or what the outcome of any negotiation should be. Instead, the character of the dispute is whether Chile, by its actions, has created an enforceable obligation to negotiate with Bolivia and whether Chile has breached that obligation (Majority Judgment ).
The majority rejected Chile’s second objection that the subject matter of the dispute was excluded from consideration because of article VI of the Pact of Bogota and the 1904 Peace Treaty. Chile had submitted that the 1904 Peace Treaty was a conclusive territorial settlement, that it fell into the excluded categories in article VI and this dispute, by covering the same matters, was also excluded. Bolivia had responded that the obligation and negotiations arose independently of the 1904 Peace Treaty and were therefore not excluded. Given the conclusion drawn by the majority on the characterisation of the dispute, the majority agreed with Bolivia. Bolivia’s application concerns a legal obligations created subsequent to and independent of the 1904 Peace Treaty, and therefore is not excluded by article VI (Majority Judgment ).
Additionally, the majority noted that it was satisfied that Chile’s objections were preliminary in character and could be properly addressed at an interlocutory stage. The ICJ has three options of addressing a preliminary objection: upholding it; rejecting it; or holding that it is not exclusively preliminary in character and postponing consideration of the objection to the merits phase. The majority considered that on the facts before it, it could rule whether the disputed issues had been settled by the 1904 Peace Treaty without making findings on the merits of the overall dispute. Therefore, it was suitable to dispose of Chile’s objection at this time (Majority Judgment –).
The ICJ published four other opinions. Briefly, they were:
- Declaration of Judge Bennouna — His declaration criticised two paragraphs of the main judgment , wherein the majority had provided their opinion on a Bolivian subsidiary argument. Because the Majority’s decision rendered Bolivia’s subsidiary argument moot, Bennouna considered that discussion by the majority ‘pointless’. Having rejected Chile’s objection, it had implicitly regarded it as preliminary and there was no need to consider the subsidiary argument.
- Separate Opinion of Judge Cancado Trindade — In a substantial separate opinion (that agrees with the majority’s orders), Judge Cancado Trindade gave an expanded treatment of the jurisdictional regime of the Pact of Bogota and article 79 of the ICJ Rules (which deals with preliminary objections), considering the majority’s consideration ‘far too succinct’. The separate opinion concluded that Chile’s objection is not of exclusively preliminary character and that its arguments should therefore be considered in the merits phase.
- Declaration of Judge Gaja — His declaration also noted that disposing of Chile’s objection was not an exclusively preliminary matter. Judge Gaja considered that the Court could not have made a decision on jurisdiction without examining whether the matter purportedly settled by the 1904 Peace Treaty had been subsequently ‘unsettled’. This would have required consideration of the merits of the parties’ arguments and therefore the Court should have instead ruled that the objection should be heard as part of the merits phase.
- Dissenting Opinion of Judge ad hoc Arbour — Arbour had been selected by Chile as its Judge ad hoc in the proceedings. In her dissent, she also considered that Chile’s objection was not exclusively preliminary and should have been postponed until the merits phase. In particular, she considered that the Court can only decide in the merits phase whether a Chilean obligation exists and whether the scope and content of that obligation falls within the exclusionary language of article VI.
A more substantial summary of the ICJ’s judgment and additional opinions is available here.
The ICJ has requested that Chile file its Counter-Memorial by 25 July 2016. At this time, there is no further public indication of when the Court will hear the parties’ substantive arguments. The dispute will remain of interest because of Bolivia’s unique argument that Chile has created an obligation to negotiate in good faith, and what the ICJ has to say about the existence or content of such an obligation may have ramifications for future diplomacy between states.
Timothy Gorton practices commercial litigation in Melbourne and is an Editor of the ILA Reporter. He is a former Editor of the Melbourne Journal of International Law. Any opinion expressed is the author’s alone.
October 2015 has seen the flaring of tensions once more in the ongoing whaling dispute between Japan and Australia. On 6 October, Japan filed a special reservation to its declaration recognising the compulsory jurisdiction of the International Court of Justice (ICJ). The special reservation, filed with the United Nations, excludes ICJ jurisdiction over:
any dispute arising out of, concerning, or relating to research on, or conservation, management or exploitation of, living resources of the sea.
In effect, Japan’s reservation seeks to prevent a future legal challenge being brought internationally against its whaling activities. Japan’s scientific whaling program has been the subject of a longstanding dispute between Australia and Japan that, in 2010, led Australia to institute legal proceedings against Japan at the ICJ. This was after the exhaustion of bilateral negotiations and discussions at the International Whaling Commission.
The Whaling in the Antarctic (Australia v Japan) case considered whether Japan, in undertaking the Japan Whale Research Program Under Special Permit in the Antarctic II (JARPA-II), had breached the 1946 International Convention for the Regulation of Whaling (ICRW) by killing whales in the Southern Ocean. Australia argued that Japan was in breach of a moratorium on commercial whaling effectively imposed from 1986 onwards by the adoption of paragraph 10(e) of the ICRW Schedule (which provided for zero catch limits) and Japan’s further obligation under paragraph 10(d) to observe the moratorium. Japan argued that its program fell under the limited exception to the moratorium provided in article VIII of the ICRW, allowing nations to give special permits to its nationals to kill whales ‘for purposes of scientific research’.
On 31 March 2014, the ICJ handed down its judgment, holding that JARPA-II did not fall within the scope of article VIII and determining that Japan was in contravention of the ICRW. The ICJ ordered that Japan revoke any JARPA II permits and refrain from granting any further permits under the program.
While the judgment was widely celebrated at the time as a successful instance of legal dispute resolution and a triumph for the global anti-whaling coalition, Japan has since signalled preparations for a new scientific whaling program, NEWREP-A.
Japan’s filing of a special reservation this month seemingly flouts the scope and power of the ICJ and limits Australia’s options to challenge NEWREP-A on grounds of international law. The Australian government has since announced it is seeking legal advice.
On 12 June 2015, the International Court of Justice (ICJ) confirmed that Timor-Leste had officially withdrawn its case against Australia in Questions relating to the Seizure and Detention of Certain Documents and Data (see this ICJ Press Release). Timor-Leste commenced the proceedings against Australia in December 2013 in relation to the seizure by ASIO of Timorese legal documents relating to the dispute between the two states before a tribunal at the Permanent Court of Arbitration. The arbitration concerns the validity of the Treaty on Certain Maritime Arrangements in the Timor Sea following allegations that Australia spied on the Timorese Cabinet during the treaty negotiation process. The resolution of the ICJ proceedings come only after Australia returned the seized documents.
The ICJ had previously indicated provisional measures (see the ICJ Summary) in March 2014. The ICJ determined that the sovereign equality of states provided an inviolable right to confidential correspondence with their legal counsel. Whilst undertakings given by Australia not to review the documents reduced the risk of disadvantage to Timor-Leste, orders were still given by the ICJ to fully protect Timor-Leste’s rights to their confidential legal documents. The ICJ’s measures required that Australia:
(a) ensure that the content of seized materials was not used to the disadvantage of Timor-Leste;
(b) keep all documents, electronic data and copies of the data under seal; and
(c) not interfere in communications between Timor-Leste and its lawyers in relation to the arbitration.
As the dispute between the two states has concluded at the ICJ, the central arbitration dispute will now resume. Australia’s Department of Foreign Affairs and Trade, commenting on the withdrawal of the ICJ proceedings, stated that the Australia is ‘disappointed that Timor-Leste has decided to resume the arbitration against Australia’ and that ‘Australia will strongly defend the arbitration’ (see this DFAT Press Release).