December 12, 2019 marks the last day of the case brought forward by The Gambia to the International Court of Justice (ICJ) at The Hague, Netherlands.
For the duration of the three days long hearing, both sides submitted and rebuffed their opposition's legal claims.
The following is the full transcript of Myanmar's Lawyer Christopher Staker, as provided by the ICJ.
LACK OF PRIMA FACIE JURISDICTION OF THE COURT; LACK OF PRIMA FACIE STANDING OF THE GAMBIA; INAPPROPRIATENESS OF THE PROVISIONAL MEASURES REQUESTED
1. Mr. President, Members of the Court, I will respond to the points made by counsel for The Gambia this morning in relation to issues of prima facie jurisdiction and prima facie standing, and the form of the provisional measures requested.
2. The first sub-issue of prima facie jurisdiction relates to the matter of The Gambia acting in these proceedings as a proxy or organ of an international organization, rather than in its capacity as a State party to the Genocide Convention.
3. We made the point during the first round that these proceedings are brought on behalf of and are funded by the OIC.
4. One thing we do find striking is that in its second round this morning, The Gambia said nothing about funding. Yesterday, I said that it is unknown which States have donated what to the voluntary fund, or whether the donors are even confined to States. This morning might have been an opportunity for The Gambia to provide some transparency in that respect, but there was complete silence. Not only do we still not know precise amounts contributed by individual donors, we do not even know if the donors include non-State entities such as international organizations, NGOs or even private individuals. We do not even know if The Gambia is spending a single penny of its own resources on these proceedings.
5. It is accepted that The Gambia signed the Application instituting proceedings in its own name. However, it is clear from the documents I took you to yesterday that these proceedings are brought on behalf of the OIC, and that the proceedings are financed by an OIC controlled fund. I will not take you to all that evidence again. The situation is expressed particularly clearly in the 24 November OIC press release at tab 3.17 of the judges’ folder. It states in terms that “The Gambia as chair of the [ad hoc OIC] Committee has been tasked with submitting the case to the ICJ, following a decision by the OIC Heads of State”. The meaning is plain. The decision to bring these proceedings was brought by the OIC Heads of State, and the OIC tasked The Gambia to bring them. The Gambia was so tasked in its capacity as chair of the ad hoc Committee. The fact that The Gambia brings these proceedings on behalf of the OIC has been announced in official OIC documents, statements made by The Gambia in the General Assembly and by the law firm representing The Gambia in these proceedings, as well as in the media.
6. The Gambia may now claim otherwise, but this is a bare assertion that is contradicted by the evidence. It may well be that there is more to the background to the adoption of these OIC resolutions than Myanmar can know. If so, explanations and evidence could have been provided by The Gambia, which unlike Myanmar was a party to the various developments within the OIC relating to this matter. It has provided none, and in the circumstances the Court can only base its decision on the evidence before it.
7. I would finally note in this respect that The Gambia did not argue today that it would be legitimate for it to bring these proceedings on behalf of the OIC. The Gambia seems to concede that point.
8. The second sub-issue of prima facie jurisdiction concerns the existence of a dispute. Mr. d’Argent claimed this morning that the various OIC resolutions made clear to The Gambia that there was a dispute with Myanmar under the Genocide Convention. I do not need to repeat all that I said yesterday. They do not.
9. Mr. d’Argent referred this morning to the March 2019 OIC Resolution 4/46-MM on The Situation of the Muslim Community in Myanmar1 . However, that resolution also does not mention specifically the Genocide Convention. It contains general references to genocide (as well as for instance crimes against humanity), but as I submitted yesterday, this Court has no jurisdiction in this case over violations of customary international law aspects of genocide. The OIC resolution does not identify a dispute concerning the interpretation, application or fulfilment of the Genocide Convention, within the meaning of Article IX.
10. I therefore maintain the position that the 11 October Note Verbale did not call for a response, either at all, or in any event within a month.
11. Mr. President, Members of the Court, I then turn to the issue of standing.
12. Counsel for The Gambia once again blurs the crucial difference between the right to invoke another State’s responsibility and the question whether a State has standing before this Court. This difference is important as the general right to invoke another State’s responsibility under customary international law is much broader, given that the question of standing before this Court is clearly regulated by this Court’s Statute and its established jurisprudence.
13. Let me recall that the ILC’s then Special Rapporteur himself considered that what is now Article 48 of the ILC’s draft Articles on State Responsibility was in many parts no codification of the lex lata but merely constituted a progressive development of international law2 . Secondly, the ILC has made it clear that Article 48 of the draft Articles was without prejudice to the general principle that “the implementation of State responsibility is in first place an entitlement of the “injured State”3 , or as the ILC’s former Special Rapporteur on the matter put it in unequivocal terms the priority of specially affected States ought to be recognized when it comes to reactions to violations of erga omnes norms4 .
14. The progressive development provided for in Article 48, paragraph 2, of the ILC’s Articles on State Responsibility was thus merely intended to ensure that where there is no State at all that is individually injured, some third entity is available to invoke the responsibility of the violating State in the interest of the beneficiaries of that obligation breached.
15. However, in cases like the one before you now, in which there is a specifically affected State, namely Bangladesh a finding which the Applicant notably did not rebut this morning it is that especially affected State that has the right to invoke the responsibility of the State that has 2 ILC, Draft Articles on Responsibility of States for Internationally Wrongful Acts, with commentaries allegedly breached its obligations. In such a situation, it is neither necessary, nor indeed desirable that any other State should then be able to invoke such responsibility as well.
16. Therefore, our submission is not that a non-injured State was generally barred in any conceivable situation from bringing a claim before this Court. Rather, we submit, that it is not possible to circumvent the principle that it is the right of an injured State to decide if, and eventually how, to invoke the responsibility of another State, and that the right of non-injured States to invoke such responsibility is subsidiary. This is also highlighted by Article 45 of the ILC’s Articles on State Responsibility.
17. According to Article 45 of the ILC Articles on State Responsibility no State may invoke State responsibility if the injured State has either waived its claim or acquiesced in the lapse of the claim. We submit, that the same must hold true when the specially affected State has, by entering a reservation to Article IX of the Genocide Convention, waived its right to vindicate the responsibility of the alleged wrongdoer before the Court.
18. Mr. President, that now brings me to the relevance of Myanmar’s Article VIII reservation which, Professor d’Argent, I feel, misunderstands. What he did accept is that Myanmar’s reservation has a bearing on the ability to seize the Court. And indeed how could it be otherwise, given that the clear wording of Article VIII, namely in French and Spanish, uses terms typically used in relation to court proceedings6 , and its drafting history shows that various attempts to limit the scope of seisin to only some of the organs of the United Nations were rejected7 . So there is an agreement between the Parties on that point.
19. Professor d’Argent did claim, however, that Myanmar’s interpretation is not bona fide. Yet, on the contrary, it is The Gambia’s interpretation of Article VIII and Myanmar’s reservation thereto that is not in line with accepted principles of treaty interpretation, since it empties both Article VIII as well as the reservation to which The Gambia did not object, of any relevance.
20. As a matter of fact, contrary to what you heard this morning, Myanmar’s argument based on its Article VIII reservation is not depriving Article IX of any meaning. Rather, it is Myanmar’s interpretation that brings Article VIII and Article IX in line. Otherwise, the fact that Article VIII governs the seisin of the Court, which we understand is now accepted by The Gambia, would be redundant and completely useless. 21. As you will recall, Article VIII provides that any State I repeat: any State may seise the Court once acts of genocide are in the process of being committed. It is thus Article VIII not Article IX that might imply that any State party, even if not specially affected, might seise the Court, and thus allow for some kind of actio popularis. In other words, if there is any possibility of an actio popularis under the Genocide Convention: if then that is the effect of Article VIII rather than of Article IX .
22. This obvious effect of Article VIII has so far simply not been relevant, given that in all previous cases under the Genocide Convention, it was the specially affected State, be it Bosnia or Croatia, that had brought the case. What is even more is that none of the cases which the Court has so far dealt with under the Genocide Convention involved a reservation to Article VIII. Thus, the Court has never had to pronounce upon on the relevance of Article VIII for the seisin of the Court.
23. But in this case, where Myanmar has made a reservation to Article VIII, the effect must be that the Court cannot be seised of a case under the Genocide Convention by a non-injured, nonspecially affected State, in circumstances where the respondent State has an Article VIII reservation but has not made a reservation to Article IX.
24. It is obvious that where a contracting party has neither a reservation to Article VIII nor to Article IX, the distinction between the seisin of the Court, regulated by Article VIII and as accepted by The Gambia, and the Court’s jurisdiction, governed by Article IX, is somewhat academic. But, as I said yesterday8 , a valid seisin is a necessary precondition for the exercise of the Court’s jurisdiction. The effect of Myanmar’s reservation to Article VIII is that this provision has to be read as providing that not any contracting party may seise the Court with a dispute it might have with Myanmar.
25. Myanmar’s reservation to Article VIII on that interpretation therefore has the legal effect of limiting the right to seise the Court to those contracting parties that are specifically affected by the alleged violations of the Genocide Convention, provided at least that the Court has jurisdiction under Article IX. Finding otherwise would not only render Article VIII completely redundant and obsolete, but also, and more importantly, the reservation that Myanmar made to Article VIII a reservation that has been accepted by The Gambia.
26. To summarize: in contrast, for instance, to Article 33 of the European Convention on Human Rights, the Genocide Convention on this interpretation distinguishes between a broad power to seise the Court on the one hand, regulated by Article VIII, and a more limited compromissory clause in Article IX on the other.
27. And it is exactly this difference that explains the fact that Myanmar, while entering a reservation to Article VIII of the Genocide Convention, did not at the same time enter a reservation to Article IX. The effect of the reservation to Article VIII is to preclude the seisin of the Court by “any Contracting Party”; that is to say, parties to the Genocide Convention that are not injured States. It thus has the effect to preclude any form of actio popularis by any not specially affected contracting party to the Genocide Convention. On the other hand, it does not preclude the Court from exercising jurisdiction provided that it was seised by an injured State and providing that the Court has jurisdiction.
28. Hence, Bangladesh being the specially affected State9 which is another qualification that The Gambia has not challenged during its pleadings Bangladesh is not barred by the Article VIII reservation from seising this Court on this possible interpretation, since Bangladesh, unlike The Gambia, is not just any State within the meaning of Article VIII of the Convention. Had it not been for Bangladesh’s own Article IX reservation, the Court would have had jurisdiction and it is that reservation to Article IX, which, again, did not appear in the submissions this morning.
29. And it is exactly the purpose of the reservation to Article VIII to preclude attempts to circumvent the limitations on the Court’s jurisdiction under Article IX. And I submit that it is not contrary to the principle of good faith to limit attempts to bring an actio popularis through the making of a reservation to Article VIII, given that this Court has upheld, time and again, that Article IX reservations which exclude the Court’s jurisdiction in toto are permissible under the Genocide Convention.
30. Let us also note that even Professor Sands, who is proud of the concept of actio popularis, accepts that a State may validly except such a right to bring a case without being specially affected by an alleged treaty violation. Let us assume for a minute that Senegal had entered a reservation when acceding to the United Nations Convention against Torture (UNCAT) to the effect that only injured States may bring a case before the Court under Article 30 of that convention. Under those circumstances, any State would have been barred unless the State could claim to be specially affected by Senegal’s violations of the Convention against Torture. And it is exactly the same limited effect that Myanmar’s Article VIII reservation has, when it comes to the ability of States parties to seise the Court with a case under Article IX.
31. Let me end by noting the repeated attempts of Professor Sands to frighten the Court as to what might be the possible effects of a decision in this case denying provisional measures, stating that it might put the Court in the wilderness for two decades. Apart from the fact that, as the saying goes, fear is a bad adviser, it is worth recalling that the Court has not shied away from making findings that a State was either not responsible for genocide, or that genocide had not happened in the first place, even where those findings were contrary to findings previously made by other actors, including other organs of the United Nations and we submit that this the essential function of the Court as the principal judicial, rather than political, organ of the United Nations.
32. Moreover, the reference to your South West Africa Judgment is also misplaced for other reasons. For one, in that case the effect of the Judgment was that no State whatsoever could bring a case against South Africa for the violations of the mandate. In contrast thereto, in this case, specially affected States might bring a case against Myanmar provided there is a valid jurisdictional bond under Article IX. And beyond this, Myanmar also accepts that even where a specially affected State such as Bangladesh is not able to bring a case given its own Article IX reservation, it might still take countermeasures against Myanmar provided Myanmar were to commit a violation of the Genocide Convention.
33. Mr. President, finally, I turn to the wording of the provisional measures requested by The Gambia.
34. Mr. Sands suggested this morning that the provisional measures concerning preservation of evidence and granting access to UN bodies is “consistent with the jurisprudence of the Court” and that “[i]t builds on the . . . Frontier Dispute case10”. But this was said without analysis.
35. The comparison with that case is not apt. That case, as the Court will recall, concerned a dispute between the Republic of Upper Volta (now Burkina Faso) and the Republic of Mali concerning part of their common frontier. Consistently with the Court’s jurisprudence in other cases concerning the use of force, the Court addressed its Order in identical terms to both parties: to refrain from action which might extend or aggravate the dispute, or which might impede the gathering of evidence; to withdraw their forces behind lines to be agreed and to continue to observe the recently agreed ceasefire; and, in regard to administration of the disputed areas, to refrain from modifying the situation which had prevailed before the armed actions giving rise to the conflict.
36. There was nothing novel in the provisional measures ordered in the Frontier Dispute case. They were framed with care to ensure balance between the parties and to avoid prejudging the outcome of the case11 . Their object was to seek to preserve the rights of both parties12 . There is nothing in the Order which paves the way for the use of the Court’s limited jurisdiction under Article 41 to impose on the parties new obligations under international law. Indeed, the Court was at pains to emphasize in the Frontier Dispute case, that the Court is not empowered, at the stage of provisional measures, to modify the situation which prevailed before the armed actions leading to the filing of the parties’ requests13 . The Court’s powers are confined to safeguarding existing rights on each Party, not imposing new obligations.
37. The use of provisional measures to create new substantive obligations on Member States goes beyond the power in Article 41 to preserve the respective rights of parties to a dispute and has no support in the jurisprudence of this Court.
38. As was noted by this Court in its Judgment in LaGrand14 , the power of the Court, under Article 41, to indicate provisional measures is based on the necessity, when circumstances call for it, to safeguard and avoid prejudice to the rights of the parties as determined by the final judgment of the Court. This idea of “preservation” is probably the most essential element in the concept of provisional measures. It requires the Court to look both at the risk of irremediable prejudice being caused to the applicant as well as the risk of causing irremediable prejudice to the respondent, if it turns out that interim relief should not have been granted.
39. Therefore the Court must carefully consider the consequences that might follow, were it to indicate the measures sought.
40. And it is therefore submitted that the Court should be wary of indicating provisional measures in cases where there is a complex situation on the ground, in relation to which various diplomatic and practical initiatives are in play, without sufficient understanding of the effects that such provisional measures might have. For instance, whatever the reasons may be for the lack of significant repatriations so far, there is widespread support for the principle that repatriations should occur. It must be questioned what would be the effect on such support of a finding by this Court that those returning to Myanmar would be at imminent risk of genocide.
41. The provisional measures hearing, by its nature, is limited in scope and does not afford an opportunity for the Court to weigh all the advantages and all the disadvantages of different courses of action. Where there is an urgent need for something specific to preserve the rights of a party, the appropriateness of a provisional measure focused on that specific matter may be obvious. However, the Court is simply not in a position to make such assessments in relation to measures expressed in broad and general terms, the precise implications of which in practice cannot be known. I elaborated yesterday on the problems of the provisional measures proposed by The Gambia in this case.
42. Mr. President, Members of the Court, that concludes my observations. I would now invite you to call on Professor Schabas.
