International Court of Justice Roundup

In connection with meetings at the Peace Palace (left) last week and the recent visit of Dame Rosalyn Higgins to Santa Clara, I had occasion to take a peek at the current docket of the International Court of Justice. The ICJ has entertained 150 cases since its inception in 1947. At the moment, 16 cases are pending on its docket—more than at any other point in history. I asked Judge Higgins about the more frequent resort to the Court and she credited several factors, including an increased faith in the ability of international law to resolve disputes, a recognition of the Court's ability to render just and efficient outcomes, and greater litigiousness generally.
Among the cases pending before the ICJ (another of whose judges, as we've posted here and here, will be in the Bay Area this week), we see:
► Frontier disputes:

• Territorial and Maritime Dispute (Nicaragua v. Colombia);
• Maritime Dispute (Peru v. Chile); and
• Frontier Dispute (Burkina Faso v. Niger).

► Cases invoking environmental law:

• Aerial Herbicide Spraying (Ecuador v. Colombia); and
• Whaling in the Antarctic (Australia v. Japan).

► Near and dear to my heart, are several cases involving international criminal law:

• Jurisdictional Immunities of the State (Germany v. Italy). This case involves the willingness of Italy to entertain civil claims arising out of WWII that Germany argues are barred by immunity doctrines and were waived in a web of post-war treaties. Greece has recently requested permission to intervene on the ground that its legal interests could be affected by the Court’s decision, because Italy is also accused of enforcing Greek judgments based on occurrences similar to those underlying the main suit. As we’ve blogged before, Italy's counterclaims against Germany were rejected on temporal jurisdictional grounds.
• Questions relating to the Obligation to Prosecute or Extradite (Belgium v. Senegal). This case concerns Senegal's compliance with its obligations to extradite or prosecute the former President of Chad, Hissène Habré. As our readers will recall, after the African Union mandated Senegal to prosecute Habré “on behalf of Africa,” Senegal indicated that it would begin pretrial proceedings once it received the necessary international funding, which is estimated at $11.7 million. Donors met in November 2010 to consider the financing of the prosecution of Habré. For more on the case, see Human Rights Watch's coverage.
• A case squarely presenting the question of the legality of the exercise of universal jurisdiction (a question that was dodged by the majority of the ICJ on non ultra petita grounds in Arrest Warrant of 11 April 2000 (DRC v. Belgium)), was recently withdrawn by the parties. Certain Criminal Proceedings in France (Republic of Congo v. France).

► Cases involving claims of violations of territorial integrity and the prohibition on uses of force:

• Certain Activities Carried out by Nicaragua in the Border Area (Costa Rica v. Nicaragua) and
• Armed Activities on the Territory of the Congo (DRC v. Uganda), which remains pending.

► Human rights

• Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Croatia v. Serbia);
• Application of the International Convention on the Elimination of All Forms of Racial Discrimination (Georgia v. Russian Federation); and
• Ahmadou Sadio Diallo (Guinea v. DRC), an expropriation case.

► Civil jurisdiction

• Jurisdiction and Enforcement of Judgments in Civil and Commercial Matters (Belgium v. Switzerland), involving the enforcement of judgments under the Lugano Convention.

A final dispute that is hard to categorize (though I must admit that the word "petty" came instantly to mind) concerns the continuing fight over the use of the word “Macedonia” by the former Yugoslav Republic of Macedonia. Application of the Interim Accord of 13 September 1995 (Greece v. former Yugoslav Republic of Macedonia). Greece has jealously guarded the term, arguing that the former Yugoslav Republic of Macedonia, which declared its independence in 1991, harbors irredentist territorial ambitions toward Greece’s northern province of Macedonia.
In addition to these contentious cases, there is one matter invoking the Court's advisory jurisdiction. Judgment No.2867 of the Administrative Tribunal of the International Labour Organization upon a Complaint Filed against the International Fund for Agricultural Development relates to a complaint filed against IFAD on a terminated employment contract that went before the ILO.
Busy times at the ICJ indeed.

On October 31

On this day in ...

... 2008 (today), Costa Ricans mark el Día de la Mascarada Tradicional, an annual event celebrated by government decree since 1997. The proclamation recognized a cultural tradition featuring good, bazaars, games, and dancers wearing colorful masks repesenting a variety of fanciful figures -- the devil, death, clowns, giants, dwarves, elves, and animals. (photo credit) The festival will resonate with folks elsewhere who today are celebrating Halloween.

(Prior October 31 posts are here and here.)

A blow to democracy & human rights

This week the armed forces of Honduras overthrew democratically elected President Manuel Zelaya (left), arresting him at home and bundling him off to Costa Rica in his pyjamas. The army then installed its own president, with the thin legal veneer of the Honduran Supreme Court's blessing. The Organization of American States, the Obama administration, and human rights groups protested and called for Zelaya's reinstatement.
The coup is a direct violation of the OAS's Santiago Commitment to Democracy and the Renewal of the Inter-American System. By adopting that Commitment during a 1991 meeting in Chile's capital, countries of the hemisphere established a mechanism for collective action in the case of a sudden or irregular interruption of the democratic political institutional process or of the legitimate exercise of power by the democratically elected government in any of the Organization's member states.
This commitment was reaffirmed in 2001, in the Inter-American Democratic Charter, which requires the suspension from the OAS of states where elected governments have been found to be illegally overturned.
So why did the Honduran armed forces, backed by the legislature and the supreme court, take what they knew would be a much-criticized action? The U.S. press has stressed the attempt by President Zelaya to change the rules on re-election and the close ties between Venezuela and Honduras.
But that's only a small piece of the story.
The re-election effort was part of a larger package. Its centerpiece was a call for a popular referendum on whether or not to call a Constitutional Convention. Had the referendum, which was supported by labor, peasant, environmental, and human rights groups, passed, Honduras would have joined Latin American countries including Colombia, Ecuador, and Bolivia, that had rewritten their constitutions after a broad-based (more or less) constitutional rewriting process.
These processes have been tumultuous and highly controversial elsewhere. But on the positive side, they have:
► Broken existing political logjams and dysfunction;
► Established broad rights for indigenous communities; and
► Set the stage for institutional reforms to protect land and the environment and to give the government greater control over resource policies, especially mining and forest projects. These projects, many sponsored by U.S. and Canadian companies, have affected water and other resources and generated widespread local opposition.
Indeed, there are movements afoot in other countries, like Chile, to use upcoming elections to push for a constitutional convention to remake the Pinochet-era constitution there (not to mention efforts in California to call a constitutional convention to remake our own dysfunctional, gridlocked and almost-broke system of government!).
That's what was at stake in Honduras, and why the powers supporting the status quo were willing to brave international criticism to try to derail a new constitution-building initiative.

Rosita's Legacy

(Many thanks to IntLawGrrls for the opportunity to contribute this guest post.)

As my colleague, IntLawGrrl Beth Van Schaack, and I recently made the rounds of various women’s groups during our research trip to Costa Rica, attempting to get a sense of whether and how the world of international human rights might be employed to help to mobilize those working on behalf of women’s status in Central America, everyone spoke of “la Rosita.” They did so as if her case had happened only yesterday. In fact, it had been six years since the then-nine-year-old girl was found to be pregnant and was refused an abortion by the Costa Rican government’s health service on the grounds that the pregnancy did not threaten her life.

Rosita’s story is layered, and has unfolded over the interceding years in ways that are at once horrific and mundane.

In Costa Rica, doctors, lawyers and health advocates invoke it to illustrate any number of problems plaguing women’s autonomy in their region of the world. (One of her drawings, entitled "Rosita sad," is at left.) Rosita’s mother brought her daughter to the doctor when the girl began complaining of stomach pain. It took several days before they realized she was just over three months pregnant. When she was transferred to San José for care, doctors put her in the obstetrical ward of the women’s hospital rather than in the children’s hospital.

Somehow, the media learned of Rosita’s pregnancy, which allegedly resulted from her having been raped by an acquaintance. Costa Rican law permits therapeutic abortions when the pregnancy poses a danger to a woman’s life or physical health. Perhaps the publicity around her case shaped her doctors’ decision that Rosita did not qualify for such an exception to the general ban on abortion.

With the help of local activists, the family returned to their home state, Nicaragua, where three doctors verified, in accordance with the law at that time, that the pregnancy was in fact life-threatening. Rosita obtained an abortion, but by then, her case had become a cause célèbre around the world. Filmmakers made an award-winning documentary (trailer) telling of her plight. Narrated in part by Rosita's mother and stepfather (right), the film expresses the hope that the abortion had been a way to permit her to resume her childhood.
Meanwhile, anti-abortion advocates vowed to tighten the laws that had permitted her to obtain a legal abortion. Daniel Ortega was elected president of Nicaragua on a platform supporting a complete ban on abortion. In 2006, Nicaragua became one of 4 countries in the world to ban abortion under all circumstances, including when pregnancy poses a threat to the life of the mother.

In late 2005, Rosita, still a child, became pregnant again. This time she carried her baby to term, and DNA testing determined that Rosita had been impregnated by her stepfather. It is now widely accepted that he caused her earlier pregnancy as well. In November 2007, he was sentenced to 30 years in prison. Today, Rosita and her baby live in state custody.

The women with whom Beth and I spoke in Costa Rica were on the front line of the struggle to improve women’s lives in their country and in their region of the world. Each spoke of Rosita’s case, and yet her story only emerged in bits and pieces:

► One group was most interested in the ensuing prosecution of the nine women who had assisted Rosita’s escape and helped her get her legal abortion.

► Others focused on the way the case has been used by anti-abortion activists to slander women’s health advocates in Nicaragua and throughout the region.

► Another recounted the manner in which Rosita’s mother’s initial ambivalence about abortion, coupled with the media attention the case received, left the doctors with no real alternative but to deny the abortion.

No one spoke about the manner in which Rosa initially became pregnant. No one talked about the fact that she became a mother two years later, while still a child. No one mentioned that the law had not managed to protect Rosa from her abuser.
Instead, we spoke of the grey space beneath the law in which girls and women presently struggle to find a safe path to walk through their lives. It became clear that the law is only part of what circumscribes women’s status in their country, as in our own. To speak of rights was to tell only a half-truth. And yet, to ignore rights language altogether was to invite in the resignation that accompanies oppression. It was to feel shamed and humiliated, rather than simply afraid.

On December 1

On this day in ...
... 1958 (50 years ago today), the Central African Republic won independence from France. Landlocked and slightly smaller than the state of Texas, the country whose flag is at right has a population of 4.3 million.
... 1948 (60 years ago today), soon after conclusion of a civil war in the Central American country, the President of Costa Rica abolished its military. It never was restored; a Police Guard remains the state's single security force. In 1984 President Oscar Arias Sánchez, who'd go on to win the 1987 Nobel Peace Prize, declared this date el Día de la Abolición del Ejército/Military Abolition Day in Costa Rica( flag at left).