The International Court of Justice’s Current Workload and Most Challenging Legal Topics: A Summary of the ICJ President H.E. Judge Abdulqawi Yusuf’s Address to the International Law Commission in July 2019
H.E. Judge Abdulqawi Ahmed Yusuf, President of the International Court of Justice (ICJ), addressed the International Law Commission on July 12, 2019 about the Court’s workload and activities. AUWCL Emeritus Dean and Professor of Law Claudio Grossman, participated as member of the International Law Commission.
ICJ President Yusuf’s presentation provided a comprehensive overview of the ICJ’s activities during the preceding year. He pointed out that since July 2017, seven new cases have been added to the Court’s docket. During that period, the Court has rendered five Judgments and an Advisory Opinion. It also issued three Orders on requests for the indication of provisional measures and one Order on counter-claims. Two of the five Judgments were on the merits (including a Judgment in two joined cases), one Judgment was on compensation and two on preliminary objections. In July, the Court was deliberating on two cases relating to the dispute between Ukraine and the Russian Federation, and in the dispute between India and Pakistan. On July 17, 2019, the Court adopted the Judgment on the Merits in the Jadhav Case between India v. Pakistan, declaring that Pakistan had violated Article 36 (right to consular assistance) of the 1963 Vienna Convention on Consular Relations.
According to the Court’s President, the Court’s busy docket shows that the international community continues to place great reliance on the principal judicial organ of the United Nations in terms of finding peaceful solutions to disputes on the basis of international law. According to him, the Court, often deals with complex legal and technical issues raised in contentious and advisory proceedings before it. It always aims to offer tangible practical solutions, based on sound legal principles, to assist all States and international organizations coming before it. The work of the Court continues to be done by way of judgments in contentious cases, as well as advisory opinions. Judge Yusuf pointed out that in each case, and at every step of the way, the Court strives to ensure peace and stability among nations by settling their disputes on the basis of international law.
He also highlighted three cases that he considered raise particularly noteworthy questions of international law.
The first one was the case of the Obligation to Negotiate Access to the Pacific Ocean (Bolivia v. Chile), a case in which AUWCL Dean Emeritus and Professor of Law Claudio Grossman had led the Delegation of Chile in the last part of the procedure. In this case, the Court had an opportunity to expand on prior PCIJ and ICJ cases on the obligation to negotiate. The Court clarified in Bolivia v. Chile that the existence of an obligation to negotiate has to be determined like any other international obligation. This means that the mere fact that a negotiation takes place does not allow concluding that an obligation to negotiate exists. The circumstances of the negotiation have to show that the parties had the intention to be bound by an obligation to negotiate. That intention could not be found anywhere in Chile’s practice since the relevant peace treaty between Bolivia and Chile from 1904.
The second topic that the ICJ President discussed was that of the formation of customary rules of international law by way of United Nations General Assembly (UNGA) resolutions. In the Advisory Opinion on Legal Consequences of the Separation of the Chagos Archipelago from Mauritius in 1965, rendered on 25 February 2019, the Court had to elucidate if in 1965 existed already an international right to self-determination. At the time, there had only been adopted the UNGA resolution 1514 (XV), passed in 1960, which in and of itself does not constitute a rule of international law. In the Advisory Opinion, the Court held that the 1960 Declaration was very important for the definition of the content and scope of the right of self-determination, and that it had a declaratory character. That same right was reiterated in later resolutions.
The third legal issue discussed was the right to compensation for environmental damage, as considered in the Judgment on Certain Activities Carried Out by Nicaragua in the Border Area (Costa Rica v. Nicaragua), rendered on February 2, 2018. In this judgment, the Court clarified the hitherto unanswered question about the scope of the obligation to compensate for environmental damage. The Court held that the compensation for environmental damage includes (1) an indemnification for the impairment or loss of environmental goods and services in the period prior to recovery; and (2) payment for the restoration of the damaged environment. With respect to this second category of compensation, the Court clarified that since natural recovery may not always suffice to return an environment to the state in which it was before the damage occurred, active recovery measures may be required in order to return the environment to its prior condition, as far as that is possible.
To see the entire presentation by the Judge Yusuf, click here.