Por: Andrés Sarmiento L.
Profesor – Investigador, Universidad Sergio Arboleda y PhD Candidate, Leiden University
In one of the most recent orders on the request for the indication of provisional measures, judge Gaja appended a declaration where he noted that,
“when it comes to orders on provisional measures… [t]he Court states in the dispositif the decisions which grants, possibly in a modified form, the request of one of the Parties, but when indicates some measures, it does not record in the operative part the rejection of other requests. No reference is made by the Court in any part of the order to the opinions of individual judges with regard to the rejection of these requests.”
In fact, it is a common trend for the Court to omit any indication whatsoever in the dispositif with regard to provisional measures rejected. The Seizure and Detention of Certain Documents and Data and (the first request for the indication of provisional measures in) Certain Activities carried out by Nicaragua in the Border Area, can be cited as recent examples of this trend.
Consequently, it is only through the individual opinions appended to the Court’s orders, that one can get an idea as to how the decision was taken (i.e. unanimously or by majority), as well as it is only in the light of a view on the contrary that the soundness and authority of the decision can be appreciated (see Gerald Fitzmaurice, ‘The Law and Procedure of the International Court of Justice: General Principles and Substantive Law’, (1950) 27 British Yearbook of International Law 2).
In the light of the two most recent orders on the request for the indication of provisional measures, this post will address the role and function of individual opinions in contributing to the publicity, transparency and authority of the decisions of the ICJ.
The request for a provisional measure indicating the suspension of all criminal proceedings against Teodoro Nguema Obiang (Immunities and Criminal Proceedings case)
In its application Equatorial Guinea requested from the Court a declaration as to the violation of article 4 of the Convention against Transnational Organized Crime (CTOC). Equatorial Guinea argues that Mr. Teodoro Nguema Obiang Mangue, Second Vice-President of Equatorial Guinea, is immune from criminal jurisdiction from French courts. The offence allegedly committed by Mr. Teodoro Nguema Obiang Mangue, falls within the exclusive jurisdiction of the courts of Equatorial Guinea. The initiation of criminal proceedings is therefore contrary to the principles of sovereign equality and non-intervention in domestic affairs. In consequence, it inter alia requested from the Court a provisional measure indicating that France shall suspend all criminal proceedings brought against Mr. Teodoro Nguema Obiang Mangue.
In paragraphs 41 to 50 of its order, the Court addressed the existence of prima facie jurisdiction concerning the CTOC. In this regard, it focused in ascertaining whether the acts complained by Equatorial Guinea were prima facie capable of falling within the provisions of the CTOC (para. 47). In analyzing this aspect, the Court noted that the obligations contained in the said treaty consist mainly in requesting states parties to introduce in their domestic legislation provisions criminalizing certain transnational offences (para. 48). In addition, the Court also noted that the purpose of article 4 is,
“to ensure that the States parties to the Convention perform their obligations in accordance with the principles of sovereign equality, territorial integrity and non-intervention in the domestic affairs of other States. The provision does not appear to create new rules concerning the immunities of holders of high-ranking office in the State or incorporate rules of customary international law concerning those immunities.” (para. 49)
Since the dispute concerns as to whether Mr. Teodoro Nguema Obiang Mangue enjoys immunity under international law, the Court concluded that prima facie a dispute with regard to the provisions of the CTOC does not exist (para. 50). The Court, however, did not state in the dispositif of its order, the rejection of the provisional measure requested. This omission from the Court was the fact that motivated the declaration from judge Gaja.
The request for a provisional measure indicating that Russia shall refrain from performing any action contrary to its obligations under the International Convention for the Suppression of the Financing of Terrorism (Ukraine v. Russian Federation case)
In its application Ukraine requested a declaration from the Court that Russia has violated its obligations under the Terrorism Financing Convention, together with full reparation for its actions and compliance with its obligations under the said convention. As a provisional measure, Ukraine requested the Court to order Russia that it shall (i) exercise control over its border to prevent further acts of terrorism financing in Ukraine; (ii) prevent the transfer of money, weapons, vehicles, equipment, training or personnel to groups engage in acts of terrorism in Ukraine; and (iii) ensure that groups within Ukraine, that have already received any sort of assistance from Russia, refrain from carrying acts of terrorism.
In assessing whether the rights asserted by Ukraine, under article 18 of the Terrorism Financing Convention were at least plausible, the Court noted that the said assessment should be made in the light of article 2, since the rights consecrated in article 18 are premised on the acts identified in article 2. In consequence,
“a State party to the Convention may rely on Article 18 to require another State party to co-operate with it in the prevention of certain types of acts only if it is plausible that such acts constitute offences under Article 2 of the ICSFT.” (para. 74)
For the Court, Ukraine did not put before it evidence affording a sufficient basis to find plausible that the elements of intention or knowledge set forth in article 2 were present (para. 75). It therefore concluded that the conditions for the indication of provisional measures under the Terrorism Financing Convention were not met. No subparagraph in the operative part of the order refers to the rejection of the provisional measures requested under the said treaty.
The contribution of the individual opinions to the publicity, transparency and authority of the decisions
Until the amendment of the Rules of Court effected in 1978, the Court had only to indicate in the dispositif, the number of judges voting in favour and against each of the subparagraphs contained therein. Their names were to remain secret, unless an individual opinion was appended and its author indicated how he voted. It was therefore argued that individual opinions would be an important instrument to ascertain the position from each of the members of the International Court. Nevertheless, article 95 of the current Rules of Court establishes that decisions should contain inter alia the number and names of the judges constituting the majority. Individual opinions seem not to be anymore, an important instrument contributing to the publicity and transparency of the decision of the Court.
Despite the above, in the case of provisional measures individual opinions still play an important role and function in the publicity and transparency of its orders. In fact, the two most recent orders from the Court are good examples in this regard.
In Immunities and Criminal Proceedings case, it is only through the individual opinions appended by judges Xue, Gevorgian and ad hocKateka that one get to know that, the decision from the Court on its prima facie jurisdiction ratione materiae of the CTOC was not unanimous. These three opinions reveal that a disagreement existed between the members of the Court on this point. They are also indicative of one of the aspects that will be under discussion during the preliminary objections phase.
In the same vein, in Ukraine v. Russian Federation case, the individual opinions appended by judges Owada, Bhandari and ad hoc Pocar reveal that a disagreement existed within the members of the Court, concerning the plausibility of Ukraine’s rights. Without a subparagraph in the dispositif indicating the rejection of the provisional measures requested, the order gives a false and misleading impression of the Court’s decision on the plausibility test. Hence, it is only through the said individual opinions that it is possible to get a clear and true idea of an aspect addressed by the Court in its order.
Lastly, the individual opinions appended to both orders, are also important in assessing the soundness of the Court’s reasons for rejecting the provisional measures requested. Since the decision of the majority is called into question, the views asserted by these dissenting judges are relevant for appreciating the persuasiveness of the reasons provided by the Court. This is an important aspect since individual opinions are helpful for the determination of the Court’s decisions as a precedent for future cases.