Law Experts on Fair Trial at The Hague
Today in The Hague, the Belize media had the opportunity to sit down with two law experts in International dispute resolution from Leiden University in the Netherlands to weigh in on the Belize Guatemala dispute. They provided a wealth of information based on their experience in the principles of international law and how it is applied and their own experience with the International Court of Justice. Here’s News Five’s Marleni Cuellar’s report.
Marleni Cuellar, Reporting
Off all the cases the International Court of Justice has heard since it’s the first case in the 1940s the majority of their caseload has been settling territorial boundary disputes. However, not many of the cases have gone to the court through Special agreement. Rough estimates are that maybe one in every ten cases get to the court by special agreement. And of all those cases, a potential Belize and Guatemala case will likely be the first to be decided by their respective citizens through a referendum. So it’s no surprise that Belizeans have many questions to be answered about the processes of the court. One of the primary ones: is the likelihood of a fair trial and the possibility of a positive outcome. Today on our media tour in the Hague, we visited Leiden University to sit down with Former ICJ clerk now assistant professor Dr. Giulia Pinzauti and Dr. Eric de Brabandere, Director of Grotius Centre for International Dispute Resolution to get some answers.
Giulia Pinzauti
Dr. Giulia Pinzauti, Former I.C.J. Law Clerk, Asst Professor, Leiden University
“Firstly, you have to think of the composition of the court and the composition reflects a certain geographic distribution with seats that are allocated on a regional basis. So there is western countries, Latin American countries, African countries, Asian countries. And the composition of the court has changed over the years as more and more states became members of the United Nations. So there was a historical period and certain imbalance towards a group of western European states; now that is no longer the case anymore. On the current bench, there are two judges from Latin America and the Caribbean. There have been quite a few examples of disputes brought before the court which was typical situations of David and Goliath, with a big country and a very small country. And you may recall that in some cases, the court has actually sided with the small country. Nicaragua is an old case, but every state is equal before the law and the two parties in litigation—the applicant and the respondent—are equal. There is procedural fairness before the court.”
But as the top court of the United Nations and a body that whose ideal is to achieve peace through law, does fairness equal compromise in the ICJ rulings?
Eric de Brabandere
Dr. Eric de Brabandere, Director, Grotius Centre for Int’l Dispute Resolution, Leiden University
“The the court is indeed the principal legal body of the United Nations, but it still is a court that stands on its own. So their end mission is dispute settlement contributes to peace. But their objective is not to bring peace; their objective is to settle disputes. And the court takes a technical and judicial approach to this. So they will really look at the law, apply the law and they will not disregard the law because peace dictates otherwise. So they will really apply the law. But I wouldn’t say, to be honest, that the court by definition rules only and with the idea in mind that they need to find a balance between the rights and obligations. I think we have had several cases where the court has made decisions that were really in favor of one state and not in favour of the other without much compromise. In this case, it is a relatively black and white decision. The question is, is that the boundary or not.”
One of the championed strengths of the Belize case, as we have been told by those who agree to go to the I.C.J., is that we as Belize and previously the British have always effectively occupied this territory. We asked the experts to explain the principle of occupation as it would play out in the court.
Dr. Eric de Brabandere
“The court has had many cases, it has many rules, but it is a very factual based decision. So it is very difficult to tell you that this is the rule that will prevail over that rule because every situation is dependent. And we both looked in detail at the dispute between Belize and Guatemala and it is complex; it’s complex. But you roughly have two types of arguments to make. One is we have legal formal title and the other one is to say even if we don’t have title, we have been there. Putting it simply the two strands. And the court then sees in light of the specificities of the situation whether one prevails over the other. But the principle nonetheless is if you have formal title; that is you are sovereign, it is your land. Unless there is something that happened that changes the title. Occupation is not necessarily the right word. The principle is that you have to be there and exercise competencies in a sovereign capacity. So Belize has to be there, but also act like a state and governing. In French, we call it “acte attitude souverain” which means acting as a sovereign.”
On the flip side, the “No to the I.C.J.” activists have repeatedly championed that Belize has been accepted as a sovereign state by no less than the United Nations itself and all but one country. So if we’ve been recognized by one hundred and thirty-nine nations, then what do we have to prove?
Dr. Eric de Brabandere
“There is one important principle that the recognition of a state does not imply the recognition of the boundaries of the state. It’s the same as joining an international organization, it doesn’t imply recognition of the sovereignty of all other states—otherwise Israel would never have been a member of the United Nations.”
In other words, based on International Law, recognition by the United Nations as a sovereign state does not equate to being recognized for all our eight thousand eight hundred and sixty-seven square miles. Reporting for News Five, from The Hague, I am Marleni Cuellar.
