ICJ aims at peaceful settlement of dispute and confidence in the UN

Prothom Alo English Desk | Update:

Rohingya refugees. File photo ReutersConor Lennon from UN News took an interview of Phillipe Gautier, the newly appointed registrar of the ICJ and the former registrar of the International Tribunal for the Law of the Sea during a visit to the UN headquarters in New York in October. The interview was recently aired by UN Radio. The full text of the interview has been reproduced here.

UN News: Connor Lennon asks Mr Gautier to explain the crucial role the ICJ plays on the world stage.

Phillipe Gautier: The court plays a crucial role in fulfilling one of the major tasks of the UN Charter in the maintenance of peace and security. We know that whenever there are disputes between states, there is a propensity for the use of force as a means to settle the dispute. States would need to put any dispute to an international court which could be adjudicated and give a solution to the dispute. That is exactly the role of the court and I would say it is the only permanent and worldwide court which exists and it is a principal judicial organ of the UN. I insist on the term judicial organ because it is away from the headquarters so it is not so well-known. It is in The Hague but it is part of the United Nations.

Its competence is two-fold. First, it is to settle disputes between states and it renders binding judgement which has to be complied by the states. The other side is that there is a possibility to give advisory input which is not essentially binding but which gives some prerogative.

UN News: As for the binding judgement, do states always adhere to those judgements or are there cases where they don’t? And if they don’t, what happens next?

Phillipe Gautier: That is the classical question in international law. There is no enforcement mechanism except with the adherence of the Security Council, and there is a possibility there but I would not address that. I would say any judgement of the court is final, binding, has to be complied with. There is no appellate body. If you look at practice, I would say the record is quite good. That doesn’t mean it is perfect, in life nothing is perfect, but we may be proud of the record.

UN News: What do you think of that fact that there is basically no recourse, the judgement is final and that’s it?

Phillipe Gautier: It is the nature of international law, when there is a final judgement by an international court, you cannot constantly lodge appeals. It is true that the court is composed of 15 judges coming from different backgrounds elected more or less at the same time by the Security Council and the General Assembly. There is some legitimacy and it shows that the system was well designed. I would add that it functions well. If you want to look at a success story for the time being, look at ICJ. From ‘46 until today there were 177 cases filed which is quite a record. And for the time being, 16 cases are pending and more than 50 per cent of the cases have been brought before the court during the past 30 years. It means states put confidence into this mechanism. It also means that the mechanism is useful. Whenever there is a court like ICJ, it is used. I would like to mention also that it is not so easy to bring a case to a court like ICJ because it is based on concept. It is not like a municipal law where you can bring the case before a judge and the respondent cannot escape so easily. In international law, you need two to tango. It make take different forms, it may take declaration, a unilateral declaration. And there is a link among all those who committed themselves and there is possibility to bring to a case against each other. There is also the possibility of a clause in the treaty, a compromissory clause and in case of a dispute, you may bring the matter to court. Afterwards both states may agree to take the dispute to the court which is not so easy. Once there is a dispute, there is always one party which is more inclined to bring the matter to court. The declaration and the compromissory clause are the best tools.

UN News: You said earlier that the ICJ has contributed to peace and security throughout the years of its existence. Do you mean that in a general sense or do you mean means specific examples where a resolution by the court has made a difference between violent and non-violent end to a dispute.

Phillipe Gautier: I would say an obvious trivial example relates to the delimitation of borders, maritime delimitation. There are plenty of cases like that. And currently there are cases between Somalia, Kenya, a case between Nicaragua, Colombia, between Guyana, Venezuela and Guatemala, Belize, all disputes involving territory. If you look at history, very often these were reasons to engage in war.

The world is in need of those tools for peaceful settlement, dispute mechanism in the court. It would defuse tension. There is the recent decision in the case between India and Pakistan where an India citizen was detained in Pakistan, accused of treason and he would be facing a death penalty. That is an important tension. It may create tensions between states, and a case before the court would ease the tensions. We don’t necessarily expect to resolve all conflict but would at least try not to aggravate and give partial solution.

UN News: This obviously was a preoccupation for you in your previous role. Talking about maritime borders, the big talking point now is South China Seas. Are you concerned about rising tensions in the coming years over South China Seas?

Phillipe Gautier: It is difficult to foresee in this respect, but what is visible is that with respect to some areas in the world, there is probably a need for mechanism to ensure peace and security. When I refer to the jurisdiction of the court, for example declarations by states involved in some disputes may be something to be considered by the states concerned in order to have a took which could be activated in case there is certain points of high tension.

That is a procedural response to your question but that is important because if there is no such confidence, no such consent given, it is difficult for a court. It is to encourage, giving a chance to a peaceful solution for such conflict and through a special agreement, for example, states can also devise the precise dispute they want the court to adjudicate. They may avoid some aspects of the dispute they consider too political, too sensitive. That is some learning process. We need to encourage and I am sure the UN has a role to play in this respect.

UN News: Your current role as registrar, in your seven-year term, gives us an overview of what your role entails.

Phillipe Gautier: As a registrar you are the head of the registry which means simply a secretariat. The secretariat is there is assist the court, the court composed of 15 judges to deal with the job, to render judgement, orders, advisory opinions, and for that you need legal officers, you need interpreters, translators, because there are two official languages, English and French. You need also colleagues in charge of staff matters, of financial matters, to take care of the building. It is a small unit with different components and as head of the registry, the registrar is active in three main areas. First, tradition because the registrar is the principal channel of communication with the parties and will assist in planning and organising the case. He or she will attend the meetings of the court, the drafting committee and so on.

The second area is administrative and budgetary matters. For example, last week I was on video link with the fifth committee to answer questions concerning the budget for 2020. And staff matters are also an important area.

The third area is the diplomatic functions deal. The registrar is asked to deal with states, with international organisations and also to publicise the work of the court.

You mentioned seven years for the term of office. My main objective is to face the challenge which is mainly the workload -- 16 cases is unprecedented. It never happened like that in the history of the court and it means we will probably get two more cases this year. It will grow.

UN News: You are essentially full up, aren’t you?

Phillipe Gautier: Yes, but we are ready and if there are urgent measures to be taken, the court will take its responsibility. Sure, it will take two or three years to dispose a case, but it will be dealt with. That entails a number of tasks and my task is to make sure we can deliver. For that we need a framework with staff members who can deliver, with trust in the leadership and the registrar. That is certainly a challenge and to achieve that, to create real teamwork, that is a clear objective because the registrar cannot do all this alone.

There is the budget and you need to ensure there are sufficient resources and that is not easy in the current time. The building needs renovation work which has to be planned. There is also more mid-term objectives, like the 75th anniversary of the UN and the court will follow. And on a personal note I would like to say that there is the New York Marathon and if there is a team of the UN, I would certainly participate.

UN News: You mention that it is a very busy workload in terms of cases. Why has the number of cases gone up so much?

Phillipe Gautier: There is a combination of factors, it is not just one element. Probably a key element is confidence in a court which has demonstrated its ability to deal with cases and has elaborated solid jurisprudence. That is part of the attraction. If there is a court with solid, robust jurisprudence, this shows there is some predictability. For states or lawyers advising states, it is important to know there are rules which are adhered to by the court, a consistency in jurisprudence. It is encouraging to show there is need for a peaceful mechanism of settlement of dispute and that court has a really useful role to play in a world which has not become easier. There are a number of tensions but it has become natural to think of this option. Not only for negotiations, the court as a normal tool. It is not unfriendly, it is a tool in order to reach a peaceful solution.

UN News: So you take this in a positive light, the fact that more states are using the ICJ as recourse for solving disputes?

Phillipe Gautier: I do. I think that is very positive

UN News: Let’s talk about advisory proceedings. You mentioned that this is an important part of what you do. What have they achieved?

Phillipe Gautier: That is an important part of the job of the court, but just to put things in perspective, we have received so far 177 cases and out of this figure, there are 27 requests for advisory opinions. Advisory opinions are requested by the UN General Assembly or the Security Council or by the specialised agencies of the UN, not by states. That is the difference. Contentious proceedings, disputes are submitted to the court by the states only. For advisory opinion it is by international agencies.

That means there is a process. The General Assembly will make a request and there will be a vote. It is a consequence of negotiations. There is some legitimacy in the question which is submitted to the court. There is high value given to advisory opinion in the jurisprudence of the court because it will clarify some rules. I will give you an example. The legal personality of the UN is the result of the advisory opinion of the court in the early days. There is no provision in the UN Charter recognising the international personality of the UN. That was a contribution through an advisory opinion.

More recently the latest advisory opinion on the Chagos archipelago separation from Mauritius. The question to the court by the General Assembly was to know whether the separation was lawful and applicable in line with the law and the response was affirmative from the court. In the mid sixties the self determination clause was applicable and it is an important contribution. It will guide future processes. Even if it is not binding, it is a legal document.

UN News: Finally, let’s look ahead in the short term. Could you outline two or three of the big cases you have now, that are likely to be significant?

Phillipe Gautier: Yes indeed. Perhaps instead of giving a summary of the different cases, if you look at the 16 cases, it is important to see the matters concerned by the case because it gives an idea on the areas where there are questions in the international legal community. For example, there are five out of 16 relating to delimitation disputes, borders, land boundaries or maritime boundaries. It is still really something that is constant.

There are environmental cases with the use of water between, for example, Chile and Bolivia. That is something that is also recurrent, environmental concerns. I am sure there will be more cases coming.

There are cases related to sanctions, counter measures and you may look at two cases relating to Iran and the US concerning the compatibility of those sanctions with respect to a bilateral treaty between the two states. You have also two cases against Qatar by a certain state of the Gulf regarding a decision relating to ICAO.

Another area where there are cases regarding violation of convention protecting human rights or consular convention or cases relating to the convention against racial discrimination as Qatar vs UAE or Ukraine and Russia. And there are cases involving immunity between states and reparation for liability incurred by states after conflict as between Congo and Uganda. The last case filed was between Palestine and the United States. It gives you an overview of the area where there are tensions.

UN News: It is not that very often that we get to talk to a senior member of the ICJ so it’s great to have you here. Can you give us one thing that people could come away with when they think of ICJ. What you want that to be?

Phillipe Gautier:The peaceful settlement of dispute and confidence in the UN.

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