Man, Land and Sea:
Local Populations in Territorial and Maritime Disputes before the International Court of Justice
by Yusra Suedi
Published on 2 October 2023
I’d like to thank the Editors of CIL Dialogues for kindly hosting this symposium and the commentators for agreeing to engage with my work. This introductory post will be divided into three parts: first, how I came to write on this topic; second, what the problem is and why it matters; and, third, the main findings of the article.
1: How it all began
While immersed in my newfound passion for international dispute settlement during my Master’s studies, I came across a peculiar case before the International Court of Justice (ICJ). A certain Mrs. Garcia was refused an audience before the ICJ to defend herself against her employer. She had no access to the Court, as all other individuals no matter how directly an ICJ case might impact them. Her case prompted me to explore not only what the underlying rationale for the exclusion of individuals was, but the various creative ways in which they have sought to circumvent the fact that the Peace Palace’s doors are closed to them. My PhD was born: ‘The Individual in the Law and Practice of the International Court of Justice’, now forthcoming as a monograph with Cambridge University Press (2024).
For the next five years, I would examine over 100 years of case-law to identify the Court’s approach towards individuals in many contexts – including maritime and territorial disputes. My article ‘Man, Land and Sea’ is inspired by two chapters of my PhD.
I was delighted that the article was published in The Law and Practice of International Courts and Tribunals and was selected as the runner-up in the 2020 Rosalyn Higgins Prize.
2: The problem and why it matters
The main problem the article flags is that the Court appears to adopt a purely state-focused approach to matters that have real consequences for the latter’s inhabitants. It is undeniable that both territorial and maritime disputes may carry repercussions for the local populations living on the territories of the state litigants. For example, coastal populations require access to fishing resources for their livelihood, which may be hindered following maritime boundary delimitation. Elsewhere, the repercussions of an ICJ judgment rendered 20 years ago ordering a transfer of sovereignty of the Bakassi peninsula from Nigeria to Cameroon are, to this day, generating problems for Bakassians identifying as Nigerian (for instance, being killed, disenfranchised or living as internally displaced persons).
Why does this matter?
First, effectiveness. In my view, a Court striving to resolve disputes peacefully cannot be said to have achieved this goal fully if the affected people are unsatisfied with its decision. As cited in the article, certain judges have objected to delimitation being a ‘purely geometric exercise’, with Judge Bennouna aptly stating that ‘the search for peace among States also entails ensuring human security, namely respect for the fundamental human rights of the persons concerned and their protection, including by international justice.’ I feel that a judgment can only be fully effective if this aspect is somehow considered.
Second, evolution. I believe that it is increasingly difficult to justify international law as a system at the sole service of states – it has evolved to include numerous other actors whose rights and duties have become entrenched, and human rights have seeped into every part of it. Attempts to maintain a strict state fiction in the context of territorial or maritime disputes where populations are impacted therefore seems somewhat unsatisfactory in today’s world.
Third, exclusion. Many individuals and populations turn to international law as an important tool of protection, particularly before the World Court (for instance, the Palestinians, Rohingyas and Chagossians). It is exclusionary to fail to consider them, and those in position of power should strive to be more inclusive in applying international law. Considering local populations in the Court’s legal reasoning in territorial and maritime disputes is one small step in the right direction. How, then, to achieve it?
3: Findings
The article first observes that local populations are virtually not at all factored into the legal reasoning of the Court in maritime and territorial disputes. In maritime disputes, their fishing activities have been used only as evidence to determine the extent of a maritime boundary (in Peru v. Chile). Their desires have always been rejected – except in Jan Mayen due to the unique severity of the situation (a threshold not met in Gulf of Maine). The Court has acknowledged that fishing rights are important but has yet to ‘walk the talk’ by upholding them as a relevant circumstances in a maritime dispute. Most recently, the ICJ rejected Colombia’s counterclaim in Alleged Violations of Sovereign Rights and Maritime Spaces in the Caribbean Sea (Nicaragua v. Colombia) (here, para. 231), which concerned the alleged breach by Nicaragua of artisanal fishing rights exercised by certain ancestral inhabitants of the San Andrés Archipelago, the Raizales.
In territorial disputes, activities of local populations have been used as evidence of a state’s effective control over a portion of territory, as opposed to a testament of their needs or desires. Effective control is also subsidiary to legal titles (Burkina Faso/Niger, para. 78). Other concerns that truly reflect local populations’ desires, such as history or human concerns, have been deemed irrelevant. State litigants’ arguments related to acquired rights of their populations have admittedly been upheld by the Court, but only as a brief mention and afterthought (e.g., Benin/Niger, para. 118; Kasikili/Sedudu Island, paras. 102–103).
The article then considers why this state of affairs exists, identifying two reasons. First, the Court strives to uphold the stability of boundaries. While I do not dispute the importance of this principle, I question the degree to which it is required to dictate the Court’s delimitation process. Scholars have argued that it has occasionally been applied further than it should. Second, the underlying belief that it counters legal formalism, which pleads for an exclusive application of law without consideration for non-juridical elements. But what of the principle of equity?
The last part of the article explores this principle’s potential to allow for the needs of local populations to be factored into decision-making. In maritime disputes, equity is an inherent part of the legal delimitation process. Therefore, the equitable consideration of local populations is the mere application of equity in conformity with the law, and not a contra legem exercise. In territorial disputes, equity is exceptionally applied in the absence of any other title preferred by the Court such as a treaty, a colonial agreement applied through uti possidetis, or effective control. This article proposes that instead, it could be a general principle overseeing that the Court’s adopted approach is fair and appropriate, to guide the delimitation process, as is the case in maritime disputes. This proposal does include three caveats: (i) this approach could be limited to any legal title the application of which would result in ‘catastrophic repercussions’ (Gulf of Maine, para. 237); (ii) this exercise would not be used to contradict outright the legal title in question; and, (iii) States must have expressed concern for local populations for the Court to take any measures. Equity could therefore possibly align with territorial and maritime disputes in a way that benefits local populations while remaining within the parameters established by the Court.
I hope that this introductory post has given you a taste of some of the ideas addressed in the article, and I am open and receptive to hearing others. I look forward to reading the posts from Alex dela Cruz, Carlos A. Cruz Carrillo and H.E. Judge Caffi, and I thank them again for taking the time to participate in this symposium.