On 19 March, the ICJ delivered a judgment permitting Guatemala to intervene as a non-party in Sovereignty over the Sapodilla Cayes/Cayos Zapotillos (Belize v. Honduras). On this case, Belize is looking for a declaration that, versus Honduras, it “is sovereign over the Sapodilla Cayes”, numerous islands off the shores of Belize, Guatemala, and Honduras (Utility Instituting Proceedings, para. 22). The Sapodilla Cayes are additionally a part of the subject-matter of a dispute pending on the Court docket between Guatemala and Belize, which considerations all of Guatemala’s territorial claims in opposition to Belize (Guatemala’s Territorial, Insular and Maritime Declare (Guatemala/Belize) (on the background of the 2 instances, Guatemala’s intervention and the Court docket’s determination, see right here and right here).
Whereas the intervention challenge is now resolved, it stays unclear whether or not the Court docket can resolve the Sapodilla Cayes case on the deserves. As argued right here, Guatemala may represent an indispensable third occasion and thus bar the Court docket from exercising its jurisdiction underneath the Financial Gold precept. This publish will first look at how Financial Gold may apply to a territorial dispute just like the Sapodilla Cayes instances. It would then present how neither Guatemala’s consent to adjudicate the difficulty in its dispute with Belize nor its intervention in Sapodilla Cayes would resolve the difficulty. Nevertheless, a possible answer may depend on the already established “givens” doctrine, i.e., counting on authorized determinations made in different instances. Whereas that doctrine has historically relied on previous choices, this case would require a slight procedural innovation enabling the Court docket to depend on simultaneous determinations.
Financial Gold and territorial claims
The Financial Gold precept goes again to the eponymous 1954 case of Financial Gold Faraway from Rome in 1943 (Italy v. France, UK and US), wherein the Court docket held that “[w]right here […] the important challenge to be settled considerations the worldwide accountability of a 3rd state, the Court docket can not, with out the consent of that third state, give a choice on that challenge […]” (Financial Gold, p. 33). This enshrines a better normal than that required for intervention, specifically that the third state’s authorized curiosity should not merely be affected by the choice, however kind its “very subject-matter” (Financial Gold, p. 32). The Court docket has since elaborated and developed this framework because it pertains to the accountability of absent third events (see, e.g., Sure Phosphate Lands in Nauru (Nauru v. Australia) Preliminary Objections (1992)).
Nevertheless, the precise contours of how Financial Gold applies to territorial disputes stay unclear. Whereas the Court docket has all the time harassed the significance of safeguarding absent states’ rights in delimitation instances (Land and Maritime Boundary between Cameroon and Nigeria, Preliminary Objections (1998) para. 116), it has by no means declared a case inadmissible due to it. As a substitute, it has often protected absent third states by indicating the hypothetical vector of boundaries between the events with out fixing a exact finish level, typically explicitly counting on Financial Gold to take action (see, e.g., Territorial and Maritime Dispute between Nicaragua and Honduras within the Caribbean Sea (2007) para. 312; see Thienel at p. 350).
Furthermore, the Court docket held that sure sorts of territorial disputes, comparable to the placement of a tripoint alongside a longtime boundary with a 3rd state (Land and Maritime Boundary between Cameroon and Nigeria, Preliminary Objections (1998) para. 79), or the existence of a condominium between the events probably shared by a 3rd state (Land, Island, and Maritime Frontier Dispute (El Salvador / Honduras), Utility by Nicaragua for Permission to Intervene (1990) para. 73), didn’t meet the brink of the Financial Gold precept. This has prompted Kolb to state that “[i]t is barely in extremely distinctive circumstances that one can think about the Financial Gold rule being utilized to the delimitation course of.” (Kolb at p. 578).
Nevertheless, the Sapodilla Cayes case is totally different in that it doesn’t concern the delimitation of a boundary, however sovereignty over distinct islands. The Court docket highlighted this distinction within the Sapodilla Cayes Intervention Judgment:
In [Territorial and Maritime Dispute (Nicaragua v. Colombia)], the Court docket acknowledged that, though Costa Rica possessed a authorized curiosity within the maritime space into account, its curiosity wouldn’t be “affected” by the Court docket’s determination because it remained doable for the Court docket, when delimiting the events’ maritime boundary, to finish the road “earlier than it reaches an space wherein the pursuits of a authorized nature of third states could also be concerned” […]. Such an strategy just isn’t open to the Court docket within the current case, the place the query doesn’t concern the drawing of a maritime boundary, which is prone to being indicated in a specific route “till it reaches the realm the place the rights of third states could also be affected”, thereby avoiding any potential intrusion upon the rights (or pursuits) of a 3rd state […]. Slightly, Belize and Honduras have requested the Court docket to find out the holder of sovereignty over particular maritime options in respect of which Belize and Honduras, in addition to Guatemala, have superior competing claims. For the Court docket to reply the query earlier than it within the current case, it should essentially resolve whether or not Belize or Honduras (or neither) has sovereignty over the cays. Consequently, any judgment rendered on the deserves might have a direct bearing upon Guatemala’s curiosity, because it is likely one of the claimants to sovereignty over the identical maritime options in a separate case earlier than the Court docket.
(Sapodilla Cayes Intervention Judgment, para. 40 (references omitted))
After all, this assertion offers with the decrease normal of Artwork. 62 of the Statute and never Financial Gold. Nevertheless, what the Court docket recognized because the “unique” nature of sovereignty dedication (Sapodilla Cayes Intervention Judgment at para. 45) would possibly show to be an issue underneath Financial Gold as properly. As proven above, prior to now, the Court docket has used the line-indication answer which it rejects right here not solely to disclaim the existence of a authorized curiosity, however, as in Territorial and Maritime Dispute between Nicaragua and Honduras, has determined infra petita on the deserves explicitly to guard the rights of third states. The place this isn’t doable, Financial Gold would possibly come into play, main the Court docket to chorus from exercising its jurisdiction within the Sapodilla Cayes case. Likewise, it’d resolve infra petita in Guatemala/Belize and refuse to resolve the claims regarding sovereignty over the Sapodilla Cayes.
Potential Options? Intervention, consent, and “givens”
First, underneath the Court docket’s jurisprudence, Guatemala’s non-party intervention is most definitely not sufficient to resolve the Financial Gold challenge within the current case. The Financial Gold doctrine requires the third state’s consent to the Court docket’s jurisdiction. Non-party intervention doesn’t require a jurisdictional hyperlink between the events and the intervenor. Thus, it doesn’t present the Court docket with jurisdiction over the intervenor the identical approach it might have over a celebration, and the intervenor just isn’t sure by the judgment like a celebration could be (Sapodilla Cayes Intervention Judgment at para. 61). According to this, the place states have intervened as non-parties, the Court docket nonetheless analyzes whether or not their pursuits are implicated in an impermissible approach, together with underneath the Financial Gold precept (See, e.g., Land and Maritime Boundary between Cameroon and Nigeria, Deserves (2002) para. 238; Jurisdictional Immunities of the state (Germany v. Italy: Greece intervening) (2012) para. 127).
Second, the truth that all three states have submitted this challenge to the Court docket’s jurisdiction in separate proceedings is unlikely to be sufficient to pre-empt the Financial Gold downside. The precept doesn’t merely require that the Court docket has jurisdiction over the absent third occasion in the subject material. Slightly, the absent third occasion should both be a celebration to the particular proceedings or consent to the Court docket settling the trilateral dispute with out its involvement (on the latter chance see Arbitral Award of three October 1899 (Guyana v. Venezuela) Preliminary Objection (2023) paras. 96-107).
Nevertheless, the Court docket would possibly use these current titles of jurisdiction to resolve the difficulty underneath the so-called “givens” doctrine. This exception to the Financial Gold precept states that the Court docket might depend on prior authoritative authorized findings regarding the authorized curiosity of absent third events. This exception was already implicit within the Court docket’s reasoning in Financial Gold itself, the place it didn’t take challenge with Albania’s accountability vis-à-vis the UK, which it had already decided in Corfu Channel. The Court docket later extra explicitly entertained the likelihood in East Timor that authorized determinations in UN Common Meeting and Safety Council resolutions may function givens (East Timor (Portugal v. Australia) (1995) para. 32). Most just lately, ITLOS relied on the ICJ’s Chagos Advisory Opinion as a given in Delimitation of the Maritime Boundary between Mauritius and Maldives within the Indian Ocean (Mauritius/Maldives) Preliminary Objections (2021) (see usually Stendel & Wentker at pp. 589-92).
Concurrent givens?
Thus, utilizing the givens doctrine, the ICJ may benefit from the twin pending instances earlier than it and the truth that all events to the sovereignty dispute did consent to its jurisdiction over this dispute. Nevertheless, since each instances have indispensable third events regarding the similar challenge, the Court docket can not resolve one earlier than the opposite. Subsequently, this case would require two simultaneous choices which mutually present one another the given authorized dedication on Guatemala’s and Honduras’s respective claims to sovereignty over the Sapodilla Cayes. Apart from the broader query of whether or not the Court docket would go for such an Escherian answer, this raises the technical challenge whether or not it even has the power to render two judgments at the very same time.
Joint judgment or frequent motion?
In consolidated or joined instances, the Court docket has beforehand issued joint judgments (see South West Africa (Ethiopia v. South Africa; Liberia v. South Africa) Second Section (1966); North Sea Continental Shelf Circumstances (Federal Republic of Germany / Denmark; Federal Republic of Germany / Netherlands) (1969)). As these judgments kind built-in choices introduced by the Court docket on the similar time (see, e.g., the Court docket’s determination announcement in South West Africa), there could be little doubt that every one elements of those judgments grew to become binding on the events on the similar time (see Rosenne at p. 110, talking of “formal joinder of proceedings resulting in a single judgment (of which the operative clauses could also be totally different)”; see additionally North Sea Continental Shelf at para. 11). Nevertheless, whereas within the two instances at hand, a proper joinder just isn’t not possible, it’s unlikely as a result of Guatemala/Belize has a considerably broader scope and each events within the Sapodilla Cayes have opposed joinder (see, e.g., the assertion of Honduras’s Co-Agent at para. 19, which additionally referenced Belize’s unpublished memorial to that impact; materials overlap and occasion consent as elements might not be strictly essential, however extremely related, see, e.g., Kolb at p. 1000; cf. Toh at pp. 18-19).
Nevertheless, underneath Article 47 of the Guidelines, the Court docket might also direct much less formal “frequent motion” in need of a joinder to enhance coordination. That is additionally most definitely the authorized foundation for what the Court docket referred to within the Sapodilla Cayes Intervention Judgment as “sure case administration measures [which] would possibly enhance co-ordination between the 2 units of proceedings” (at para. 42). Whereas, the Court docket additionally referred to sure limits of those measures, it has on a number of events delivered judgments in parallel instances on the identical day and in the identical sitting (see, e.g., the choice bulletins in Nuclear Checks, Aerial Incident at Lockerbie, and Legality of Use of Drive; however see Fisheries Jurisdiction, the place the Court docket delivered the judgment within the case introduced by the UK within the morning and within the case introduced by Germany within the night session of the identical day). Nevertheless, this raises the query of whether or not same-day judgments could be sufficient to qualify as concurrent determinations.
When precisely does the ICJ render a judgment?
Artwork. 94(2) of the Guidelines of Court docket states that “[t]he judgment shall turn into binding on the events on the day of the studying.” A plain studying of this provision would counsel that every one judgments rendered on the identical day subsequently turn into binding on the events on the similar time. Nevertheless, some students have raised objections to this interpretation since that will give the obligations retroactive impact. Thus, Rosenne recommended in his Commentary on the 1978 Guidelines that this provision ought to be interpreted to imply “the time at which the judgment is learn in open courtroom (when copies are additionally handed to the events)” (Rosenne at p. 194). In the same vein, Khan suggests within the Statute Commentary that the judgment ought to turn into binding at “the hour and minute of the closure of the sitting at which the judgment has been learn” to extend publicity (Khan at para. 35).
Thus, the answer is determined by the interpretation of Artwork. 94(2). Nevertheless, it appears that evidently no matter which time limit one adopts as decisive, it ought to be doable for the Court docket to make sure that the judgments do turn into binding on the similar time. If it delivers the judgments on the similar sitting as in Nuclear Checks, Aerial Incident at Lockerbie, and Legality of Use of Drive, the plain studying in addition to Khan’s interpretation could be happy. Rosenne’s interpretation appears tougher to fulfill, however a minimum of handing the copies out concurrently appears cheap. Alternatively, and to take away uncertainty, the Court docket may declare within the judgments the precise level at which it considers that they turn into binding on the events, both as an act of interpretation of Artwork. 94(2) of the Guidelines or as an adoption of an (casual) procedural rule.
Outlook: A reputable answer?
After all, one would possibly query whether or not that is greater than a procedural parlor trick to introduce trilateral dispute decision via the backdoor. Nevertheless, in any run of the mill Financial Gold sort case, the curiosity in defending absent third states is already in inherent pressure with the courtroom’s goal of peacefully settling disputes. The place the absent state has consented to the Court docket’s jurisdiction over the identical challenge in concreto, however simply not with regard to all events concerned, it arguably requires much less safety, which may tip the dimensions in favor of settling the dispute. Concurrent givens would supply the Court docket with an avenue of effecting this balancing act with out straying from its established jurisprudence.
Granted, this answer appears to be similar to the second introduced and rejected above, i.e. merely counting on Guatemala’s consent within the Guatemala/Belize case. Nevertheless, the givens doctrine stands on extra strong doctrinal floor. The one step required is extending it to simultaneous determinations, which appears much less dramatic than ITLOS’s shift to incorporate Advisory Opinions as givens in Mauritius/Maldives. In impact, this could enable the Court docket to proceed its pattern of carving out exceptions to the Financial Gold precept, because it has executed since coining its trendy formulation in Nauru and East Timor.
