‘Man, Land and Sea: Local Populations in Territorial and Maritime Disputes before the International Court of Justice’ – A Response
by Yusra Suedi
Published on 6 October 2023
In this symposium, Alex De la Cruz, Carlos A. Cruz Carrillo and H.E. Judge Caffi have all kindly taken the time to engage with some of the issues raised in my article ‘Man, Land and Sea: Local Populations in Territorial and Maritime Disputes before the International Court of Justice’. I would like to take this chance to react to some of their points.
Alex pertinently builds on my observations about the impacts of the stability of boundaries for local populations by examining the famous South China Sea arbitration. The ‘invisibility of local populations’, as he aptly describes it, was obvious in this case as well. The fact that this same approach was adopted by an arbitral tribunal – my article indicates that several have adopted this exclusionary approach in the past decades (at p. 34).
Alex points out that the assessment of the Spratly Islands as islands as opposed to rocks hinged on the presence of human habitation. This is akin to examining peoples’ behaviour to assess a State’s effective control (effectivités) over a territory in inter-State territorial disputes. While human habitation in the context of Article 121(3) of the United Nations Convention on the Law of the Sea requires a mere presence of persons (South China Sea Award, para. 489), presence alone is insufficient to demonstrate effectivités in territorial disputes (El Salvador/Honduras, para. 97; Cameroon v. Nigeria, para. 67). In both scenarios, however, the focus on people is critical and may reap significant international legal effects. This reinforces my observation that the even in disputes at which they are the centre, local populations are referred to for evidentiary, and not consultative, purposes.
The question thus remains: can this be remedied through judicial approaches? The instruments existing in the judge’s toolbox may—with creativity and goodwill—carve out a path. Judge Infante Caffi excellently discusses the uti possidetis juris principle, describing it as a ‘preexisting legal arrangement […] that may have a bearing on the territorial or maritime delimitation’. However, even uti possidetis juris does not adequately serve local populations. Judge Bennouna from the International Court of Justice (ICJ) has said that the principle ‘attach[es] little importance to the populations concerned and their historical and sociological relationships’ (p. 95). Mutua wa Makau has described it as a ‘straight-jacket which continues to deny freedom to millions of Africans’, and that the continent ‘would do well to abandon [it]’ (p. 1175).
Could local populations be considered in judicial reasoning if the repercussions they face were framed as human rights violations? Carlos’ note that States’ territorial interests and human rights obligations are not incompatible has prompted this reflection. However, a clear legal nexus between human rights and the law of the sea is yet to be developed by State litigants in the maritime context. This has been attempted in territorial disputes (e.g., Burkina Faso/Niger), and Aznar has optimistically framed this as a ‘crystallization of a trend’ (p. 334). At the very least, and as I have written elsewhere, human rights are certainly a rhetorical tool of persuasion (p. 171). I therefore agree with Carlos that this could be a gateway to reinforce such claims before international courts and tribunals – particularly, the ICJ.
Carlos also looks beyond judicial approaches to litigation strategy at various stages of proceedings. Indeed, it should not be forgotten that in the context of such disputes, public participation as a vehicle for courtroom persuasion also finds relevance. Carlos has provided excellent examples of this. It seems to me that the more that the human is present both States’ pleadings and the courtroom, the more they may be difficult for a court to ignore.
The question also arises of whether a State would wish to bring cases with a human focus, to an allegedly human-adverse court? Judge Infante Caffi questions this, ‘…if they know that equity/separate considerations are not to be assessed according to law, in particular when parties rely on agreements in force which have already been negotiated taking into consideration interests, geography, and other motives.” An idealist might say that States believe in their ability to generate change and ‘warm up’ the World Court to a humanisation of territorial and/or maritime disputes with every written and oral statement. A realist would reason the ICJ’s expertise, authority and influence in the international legal order is more important than the chances of it favourably considering local populations in its judicial reasoning. Whatever the reasons, human-centred cases are only increasing before the Court’s docket, both in contentious and advisory forms. However, the contentious disputes reflect more resistance than advisory proceedings – particularly in territorial and maritime boundary disputes.
Yet is the obstacle a hesitant judicial bench or, rather, international law at large? Alex points out in his piece that another (perhaps more people-centric) reality once existed before UNCLOS – one where lines were drawn reflecting interconnected histories, flows, and itineraries. In many ways, the confines and bounds of the modern international legal order through restrictive concepts such as statehood or sovereignty have been a disservice to local populations’ entitlements and freedoms. They imply a certain rigidity, much like the stable geographical lines sketched out in The Hague or in Hamburg. However much a dismantling of this system may seem desirable, the ‘pracademic’ that I am opts to work within these confines. I agree that this places us in a ‘limited scope’, in the words of Judge Infante Caffi. But as she says, balance should be sought ‘[in] each negotiation or judgment’. Doing so—whether via the principle of equity, human rights law, or something else—starts with an acknowledgment on the bench that the job of an international judge of the principal judicial organ of the United Nations may stem beyond a black-letter application of the law. It starts a willingness to influence the world order beyond the international community of States. It starts with a belief that, even in the most stable of processes, in the most stable of legal orders, we matter too.
I would like to close by saying thank you to Alex, Carlos and H.E. Judge Infante Caffi for participating in the symposium, as well as to the members of the CIL Dialogues Team for their organisation. I look forward to continuing the discussion in the comments section, by email, on Twitter, and/or in person.