- This paper deals with the case of the Maritime Delimitation in the Indian Ocean between Kenya and Somalia. On 2 February 2017, the International Court of Justice (hereinafter ICJ) handed down its Judgment on the preliminary objections in this case. Somalia had brought the case to request that the Court determine its single maritime boundary with neighboring Kenya. The general facts of this case are not relevant for the purpose of this paper.
- The paper would primarily deal with the jurisdictional issues in the case and the challenges raised against the jurisdiction of the ICJ. The decision would therefore serve as an important precedent in future cases which involve jurisdictional conflicts with the ICJ. In this case Kenya raised arguments to challenge the jurisdiction of the court, only to be rejected by the majority opinion. This paper would analyse the dissenting opinion of Judge Robinson which supported the Kenyan side.
- Article 287, of the UNCLOS provided recourse to arbitration in certain circumstances. This argument was raised by Kenya, which was rejected by the court, even though the circumstances for recourse were present. Furthermore, the ICJ relied on Article 282 to exclude Part XV of the UNCLOS, and assert its own jurisdiction, even when there existed a Kenyan reservation to the contrary. This approach adopted by the court was the main subject matter of criticism in the dissenting opinion by Judge Robison. The two parties had also signed a Memorandum of Understanding (MOU) which Kenya claimed was within the ambit of its reservation. However, it was rejected by the court and further this aspect is not relevant for the purpose of this present paper.
- Furthermore, the majority opinion heavily relied upon travaux préparatoires, to support its arguments and maintain ICJ jurisdiction. These supplementary means of interpretation were used to find the intention of the drafters to the UNCLOS which was also contested by Robinson.
- This paper would mainly focus on Article 282 and the use of travaux préparatoires by the ICJ and the disagreements surrounding it. This would be done through an examination of the validity of the court’s approach where it relied on travaux préparatoires. This would be done through an examination of 1) other treaties, 2) different schools of thought and 3) the jurisprudence of the ICJ itself. The paper will also examine other minor aspects of the case like Article 287 and also the optional clause declarations made under the statute of the ICJ and the importance of reservations made to it. The aspect of reservations would then be examined through the decision in the present case
2. Declaration by Kenya
- The declaration by Kenya was that – “The Republic of Kenya accepts in conformity with paragraph 2 of Article 36 of the Statute of the International Court of Justice until such time as notice may be given to terminate such acceptance, as compulsory ipso facto and without special Agreement, and on the basis and condition of reciprocity, the jurisdiction over all disputes arising after 12th December, 1963, with regard to situations or facts subsequent to that date, other than: Disputes in regard to which the parties to the dispute have agreed or shall agree to have recourse to some other method or methods of settlement.”
3. Article 287
- Judge Robinson observed that since both Kenya and Somalia are state parties to the UNCLOS, Part XV is applicable to them. Article 287 of the UNCLOS, was one of the key aspects which Kenya relied upon as part of its preliminary objections against the jurisdiction of the ICJ.
- Article 287(1) of the UNCLOS allows the state parties the freedom to choose, through a written declaration when ratifying and acceding to the convention or any time thereafter, the option to choose one or more of the courts and tribunals as given under Article 287(1) of the UNCLOS.
- Therefore if the state parties to the dispute have accepted the procedure, the dispute will accordingly be referred to that procedure, unless if the parties agree otherwise as according to Article 287(4) of the UNCLOS. Therefore state parties make declarations to that effect.
- The aspect which is to be noted here is and which Judge Robinson particularly clarified is that, if a state party to a dispute has not made such a declaration then pursuant to Article 287 paragraph (3), they are deemed to have accepted arbitration in accordance with Annex VII of the UNCLOS. This argument was made by Kenya which was however rejected by the majority opinion. Robinson therefore disagreed in his opinion and the found this argument persuasive. In the present case, neither parties Kenya nor Somalia had made any declaration, and therefore arbitration applied to them pursuant to Annex VII.
- In the South China sea dispute, the Philippines and the People’s republic of China faced a similar conundrum. The Philippines and China had not made any declaration under Article 287 and therefore the dispute in concern could only be submitted to arbitration in accordance with Annex VII pursuant to Article 287(3). Similarly in our present case arbitration should have been allowed as the default mechanism, instead the ICJ more or less seemed to impose its jurisdiction here, without clearly addressing this aspect.
4. Article 282
- Article 282 of the UNCLOS provides “If the States Parties which are parties to a dispute concerning the interpretation or application of this Convention have agreed, through a general, regional or bilateral agreement or otherwise, that such dispute shall, at the request of any party to the dispute, be submitted to a procedure that entails a binding decision, that procedure shall apply in lieu of the procedures provided for in this Part, unless the parties to the dispute otherwise agree.”
- In article 282 we can observe that there must be some sort of agreement which may be general, bilateral, regional or otherwise between the state parties to exclude the application of Part XV. In the present case the majority opinion relied on the word “ or otherwise” in Article 282 to include optional clause declarations under 36(2), and thus exclude application of Part XV procedures. The Virginia commentary was relied upon by the court which stated that “Article 282 mentions that an agreement to submit a dispute to a specified procedure may be reached ‘otherwise’. The reference was meant to include, in particular, the acceptances of the jurisdiction of the International Court of Justice by declarations made under Article 36, paragraph 2 of the Statute of the Court”.
- It is important to note that such kind of interpretation undermines the choice of forum as laid- down in Article 287, however this clearly seems to be consistent with the intention of the drafters. The issue however was to resolve the following conundrum, which was as to whether the optional clause declarations which were made by the parties resulted in the formation of an agreement to allow and accept the jurisdiction of the ICJ, and consequently exclude the LOSC dispute settlement, despite the reservation by Kenya. The court resolved the issue, by relying on travaux- préparatoires, which included documents pertaining to the Third United Nations Conference (UNCLOS) of 1973 to 1982. The court after relying on these documents observed that more than half of the optional clause declarations that existed at that time had some sort of reservations, which were similar to that of Kenya. Furthermore the court concluded that the travaux- préparatoires revealed no real intention on the part of the UNCLOS participants to exclude most of the optional clause declarations, namely those including Kenyan type reservations.
5. Travaux- Préparatoires
- The reliance of the court on travaux- préparatoires must be examined in detail. The court has resorted to using travaux- préparatoires in many instances, pertaining to various conventions and treaties. In the present case the court has used travaux- préparatoires, primarily relying on The United Nations Convention on the Law of the Sea, 1982: A Commentary (Virginia Commentary) as mentioned above. Reliance was placed upon the same in two instances. 1) The first instance was when it concluded that the term “or other otherwise” in Article 282 was meant to include optional clause declarations under Article 36 paragraph 2 of the Statute of the ICJ. 2) In the second instance when it was used, the court used the travaux to draw the intention of the participants to the UNCLOS to finally conclude that there was no intention to exclude optional clause declarations with Kenyan type reservations from Article 282. The first instance which included optional clause declarations was well supported by material written by P.Gautier, Tanaka, PC Rao and other similar writers which the court relied on, the details of which are not important for the purpose of this present paper. Furthermore, this aspect was not vehemently contested by Judge Robinson. The second instance must therefore be examined in great detail.
Schools of interpretation on the use travaux-préparatoires
- In the 1950 Draft Report of the Institute of International Law, Sir Lauterpacht said that the interpreter of a treaty must first and foremost ascertain the intention of the parties. Therefore in order to bring familiarity with the intentions, the interpreter may rely on legitimate sources such as travaux- préparatoires. Lauterpacht was considered as part of the intent school. However, many other thinkers have criticised this school of thought. For instance Sir Fitzmaurice questions why the intentions of the parties should not be quite apparent from the text alone, which clearly provides for the intention which was sought to be expressed or implied. Similarly Fitzmaurice asserts that the parties which draft a treaty express their intention and that an interpreter must therefore assume that the treaty in fact embodies their intentions. In the majority opinion, therefore it is quite clear that an attempt to interpret the UNCLOS, through the intent school of interpretation played the major role in aiding aid the final decision of the case, consistent with Lauterpacht’s approach.
- Secondly let us observe the textualist school of interpretation. This school makes it clear that a textualist approach must be used to clarify ambiguity or to conform to the natural and ordinary meaning of words. In the present case, if one simply asks the court to rely on the text alone, it is not feasible as the word “otherwise”, is capable of a broader interpretation. However there is a second aspect in the textualist school, which propounds that the meaning of the the text can be drawn from travaux- préparatoires and not the intention of the parties, which is is contrary to the majority’s approach. The two above mentioned schools (intent and textualist) if one observes, have tried to draw a broad distinction between the primary and secondary sources of statutory interpretation.
- Now it is important to note that the recourse to travaux- préparatoires as propounded by the textualist school, is similar to what has been propounded by the Vienna Convention on the Law of treaties (hereinafter VCLT).. Therefore, we will examine the same. However, before this, it is necessary to look at a few more schools of interpretation which relate to the use of travaux-préparatoires. The third school to which we will refer to is the Teleological school. This school supported the idea that the object and purpose of a treaty must be given importance. Therefore factors such as the historical background of the treaty, the circumstances which relate to the treaty’s interpretation and adoption, the conduct of the parties and of course travaux-préparatoires had to be examined. We can notice that there is no distinction as such between the primary and secondary schools of interpretation, as in the earlier schools of thought.
- Lastly we will examine the New Haven school, which states that importance must be given to the genuine and shared expectations of the parties, subject to overriding community policies. In order to do so the interpreter must examine all the significant indices of the expectations of the parties and of overriding community policies.
- With regard to these two schools, that is 1) the Teleological school and 2) the New Haven, one can observe that they more or less allow the interpreter to resort to the use of travaux-préparatoires, according to his preference and discretion. However, these two schools do not necessarily aid us in the present case. The approach of the court in the present case can be better understood through the Intent school and the textualist school. The object and the purpose of the treaty or the shared expectations of the parties or the importance of community policies, were not necessarily a part of the issues on our present case. Therefore, we will now come back to examining the relationship between the textualist school and the VCLT.
The VCLT on the use of travaux-préparatoires
- The VCLT has elaborated upon the rules of statutory interpretation. In Section 3 of the VCLT, under Article 31, which deals with interpretation of treaties, the General Rules of Interpretation have been listed out. These are also referred to as the primary sources of interpretation. Article 32 on the other hand lists out the Supplementary means of interpretation. These supplementary means include the preparatory work of the treaty and the circumstances of its conclusion, which include travaux- préparatoires. Article 32 similarly restricts the use of travaux- préparatoires to only derive meaning, after the application of Article 31. Georges Abi- Saab, a former president of the WTO explains that Articles 31 and 32 form a rigid sequence of autonomous and rigid steps, each of which has to be explicitly addressed and ‘exhausted’ before moving on to the next one.
- With regard to Saab’s explanation it cannot be disputed that the court did not examine the primary sources of interpretation. The MOU between Kenya and Somalia was examined in detail before moving on to examine the travaux. The MOU is not relevant for the purpose of the present case. However, the other aspect regarding intention must be noted, which is that the VCLT has expressly restricted the use of supplementary means to derive “only meaning” in Article 32. This makes it more or less similar to the textualist school.
- Secondly it is also important to examine the two routes through which travaux -preparatoires can be incorporated as mentioned in the VCLT. Article 32(a) talks about the ambiguity route and Article 32(b) talks about the absurdity route. The ambiguity route arises in cases where there is prima facie uncertainty. Furthermore it can be used, in the event that a treaty proves to be completely “obscure and ambiguous”, even after a careful consideration and study of the text and other primary sources of interpretation as mentioned under Article 31. The interpreter then should have recourse so that he can determine the “meaning”. The other route through which travaux -préparatoires can be invoked, is through the absurdity route. It can be used in situations where the text might seem to convey such an absurd result, such that it would be an extremely arduous and difficult task to believe that the drafters meant what they actually said.
- These routes could be considered to support the majority decision, where the term otherwise when interpreted broadly could include optional clause declarations as well. By this we are referring to the first instance, when the resort to travaux was made in this case. However with regard to the second instance, when the intention of the UNCLOS participants were derived by the court, the above two routes of the VCLT cannot provide any support for the same. The two routes merely allow recourse to travaux in situations of ambiguity and absurdity, but it does not clarify the extent to which travaux can be used.
- In analysing the above mentioned paragraphs, it seems that is only the intent school which seems to be consistent with the decision of the court in the present case. One can observe that neither the VCLT, nor the routes of the VCLT through which recourse to travaux -préparatoires is allowed, actually support the court’s approach of deriving intention. In fact, the VCLT is more consistent with the textualist school, rather than the intent school. This comprehensive analysis of the above discussed paragraphs, raises the question as to whether the judges have actually overstepped their powers in using travaux -préparatoires to maintain ICJ jurisdiction.
6. ICJ Jurisprudence and Travaux- PréparatoiresEarly practice of the PCIJ and its influence
- It is important to now analyse the jurisprudence of the ICJ and other international courts to draw the importance of travaux- préparatoires and the recourse to the same. The restrictive use of travaux is evident even from the early jurisprudence of the court in the Permanent Court of International Justice (hereinafter PCIJ). In the case of SS Lotus, the subsidiary value of preparatory work was elaborated where the court said that “there is no occasion to have regard to preparatory work if the text of a convention is sufficiently clear in itself”.
- Similarly in PCIJ cases such as the Polish Postal Service in Danzig, the court had created a certain threshold level, when preparatory work such as travaux was to be used. The Court in this case held that “It is a cardinal principle of interpretation that words must be interpreted in the sense which they would normally have in their context, unless such interpretation would lead to something unreasonable or absurd.” We can make the observation here that the Lotus and Polish Postal cases are consistent and relate to the the textualist school, as well as with the principles as enshrined in the VCLT.
- Furthermore, the PCIJ is the predecessor court to the ICJ. It is not difficult therefore to assume that the ICJ has used the precedential value of its predecessor to guide its own principles. This is evident from certain ICJ case laws. For instance the ICJ in the Advisory Opinion on the Conditions of Admissibility of a State to the United Nations, stated that it considered the text as sufficiently clear and that therefore there was no reason to “deviate from the consistent practice of the PCIJ”, and accordingly there was no reason to resort to preparatory work if the text of the convention was sufficiently clear. Therefore the resort to travaux and the lack of importance attached to it is quite evident even from the early cases and jurisprudence of the ICJ.
The subsequent practice of the ICJ
- Lord Mcknair stated that there are no rules of law to state the level of extent through which international courts and tribunals are entitled to resort to preparatory work, when dealing with international instruments. This statement by Mcknair may be of some relevance in corroborating Judge Robinson’s dissent. Furthermore, the above mentioned cases have not really provided any in-depth clarity, with regard to the extent of recourse to travaux. Let us further examine the opinions of the court and other subsequent decisions, to examine Mcknair’s claim.
- In the case of Anglo-Iranian Oil Co, United Kingdom vs Iran, Iran had made a declaration pursuant to Article 36, paragraph 2 of the Statute of the Court. The court tried to construe the declaration in the light of traditional methods of interpretation which included examining travaux préparatoires, among other things. Judge Alvarez in his dissenting opinion however disagreed with the recourse to travaux-préparatoires. He said that recourse should be had to travaux only when it is necessary to discover the will of the parties pertinent to matters which affect their interests alone. He further stated that legal institution or a convention once established acquires a life of its own, and its interpretation should not in accordance with the will of this who drafted it, but in accordance in with the changing conditions of people’s lives.
The subsequent practice consistent with the intent school
- There are however cases where judges in the ICJ have also seemed to support intention when resorting to travaux. In the case concerning Maritime delimitation and territorial questions between Qatar and Bahrain, the dissenting option as delivered by Judge Schwebel said that travaux préparatoires are nothing less than evidence of the intention of parties when there is allegedly lack of clarity in the textual meaning or in the context in which the treaty provisions are used. This reasoning is very much in line with Lauterpacht’s intent school.
- Similarly in cases like the Genocide Convention, the ICJ announced that the process of resolving the effect of reservations to the Genocide Convention, was based on the rule about what effect the court should give to the intention of the parties. Therefore as a result of this the court in this case went on to examine travaux -préparatoires. Similarly in the case of Libya vs Chad, the ICJ referred to travaux to determine the intention of the parties, which showed that the relevant parties in concern intended to define the frontier as well as recognise the boundaries which were determined through earlier treaties which the parties had entered into. Therefore again the court seemed to follow a procedure consistent with the intent school.
- In conclusion we can observe that while the ICJ has drawn much influence from PCIJ decisions in avoiding the use of travaux préparatoires, it has subsequently used it in other decisions. The PCIJ’s approach has more or less undermined travaux préparatoires altogether, irrespective of any particular consideration. However, the ICJ has independently delivered decisions where travaux was used not only to derive the meaning but also the intent behind those who drafted the particular treaty or agreement. It can even be said that there is fact a stalemate between the intent school and its approach and the other schools of thought (textualist, VCLT) which oppose it, with neither school of thought dominating the other.
7.Optional Clause declarations and effect of reservations
- It is not important to evaluate the history of the ICJ on a case by case basis with regard to optional clause declarations and reservations. However certain principles have been enunciated by certain judges in the ICJ which must be noted. Judge Abdul Koroma argued that reservations that are incompatible with the raison d’être of a treaty should be invalid. Similarly in Yugoslavia v. United States, Judge Milenko argued that jus cogen norms can and must override inconsistent reservations.
- Similarly, in cases such as the Fisheries Jurisdiction case, the ICJ explained that it would interpret the reservation in a natural and reasonable way with regard to the intention of the state when it ratified the state. It cannot be said that the Kenyan reservation was interpreted in a reasonable manner consistent with the intention of Kenya.
- Furthermore, if one observes the Kenyan reservation in light of these above principles, it was only a reservation which allowed for an alternate disputes settlement mechanism, when the parties themselves had agreed upon such an alternate procedure. The reservation cannot be said to be violative of any jus cogen norms or the meaning of a treaty. The Yugoslavia case for instance, dealt with reservations which are inconsistent with the Genocide convention, which would no doubt invite jus cogen norms. Since the optional clause system is a consensual one, states may impose any limitation as they wish on the acceptance of compulsory jurisdiction. However these reservations may undermine the jurisdiction of the court under Article 36. Many countries have continuously modified their reservations like the United States. Similarly other countries like Israel and India have made reservations which remove from the court’ jurisdiction conflicts involving use of force. Therefore the court’s assertion of its own jurisdiction can be seen as a positive step against such practices. However such reservations and practices of countries such as those mentioned above, should be curtailed by the court if possible which prima facie challenge the court’s primary raison d’être. Simple reservations such that of Kenya do not prima facie in any way challenge the same.
Furthermore in the present case the majority opinion has simply argued that there was an intention to exclude such reservations which constituted presently more than half of the optional clause declarations. Robinson clearly showed how this calculation was deeply flawed, when he proved that such reservations constituted between 54.3 and 56.5 of the optional clause declarations, which was barely more than a half of such declarations. Therefore the reasoning and justification by the court is also weak, the majority has not really come up with a strong argument to support their stance. In fact, it seems like the majority opinion has simply made an assumption of the intention of the UNCLOS participants by using the travaux préparatoires.
8. Impact of this decision.
- This decision will impact various aspects pertaining to future dispute settlement mechanisms with regard to the International Court of Justice as well as with regard to mechanisms under the UNCLOS.
Impact on Dispute settlement
- The impact of this decision is such that a tribunal empowered under Part XV can have nojurisdiction, unless if the parties agree otherwise. Therefore, parties who believed that their choice of forum under Part XV, which they have expressly or impliedly put forward, would prevail over the general acceptance of the Court’s jurisdiction, will now have to change their existing stance. The parties will now have to confirm that they are both of the same mind. This is with reference to the latter part of Article 282 of the UNCLOS, where in the ending statement it says “unless the parties to the dispute agree otherwise”. Therefore, the parties will now have to come within this latter part. In all other cases court’s jurisdiction will apply.
- Secondly it is quite clear from the decision that Article 282 trumps the choice of forum which is provided as under Article 287. After this decision, this would be the case even when there is a reservation by the parties, which reserves out disputes in which the parties to the concerned dispute agree or shall agree to have recourse to some other method of settlement. The court has more or less concluded that the structure of Part XV accords priority to Section 1.
Impact on other countries
- The Kenyan reservation and the impact of this judgement on other states which have made similar declarations can alter their present stance and would coerce them in trying come up with other means to exclude the jurisdiction of the ICJ. Countries like Australia has expressly excluded sea boundary delimitation disputes from the purview of ICJ’s jurisdiction. However similar to the Kenyan reservation, countries like Spain and Canada have both included statements in their Article 36(2) reservation. Reservations have been made to exclude from the jurisdiction of the ICJ, disputes in regard to which the parties have agreed or shall agree to have recourse to some other method of peaceful settlement.
- The effect of this judgement would therefore now raise the question, as to whether a country like Canada would now have to face the prospect of disputes being brought against it before the ICJ, despite its express intention to not have the ICJ settle such disputes. This uncertainty will have to be resolved through a clear alternative given by the ICJ, otherwise it would make the reservations to optional clause declarations more or less redundant.
- In conclusion one can relate to a number of aspects pertaining to jurisdictional issues in the case. It is important to observe that while the VCLT and the textualist school had seemed to have detected a probable flaw in the approach of the majority opinion in relying on travaux préparatoires, there was however the intent school which seemed consistent with the majority opinion.
- Furthermore, after we examined the jurisprudence and practice of the ICJ, we observed that there was a stalemate kind of a situation. The ICJ did not place more weightage to any one particular school over the other. There was no situation where the intent school was undermined by the ICJ as was done by its predecessor the PCIJ. The ICJ in fact adopted a different approach.
- Furthermore, we also examined the optional clause declarations and the effect of reservations on it. We observed that the majority opinion used a rather intuitive approach, when it came to placing careful consideration on ICJ principles used by precedent cases for considering reservations made under optional clause declarations. In conclusion, the dissenting opinion by Judge Robinson can be said to be justified, to the extent that the importance of reservations, have been undermined by the majority. Robinson’s main argument, which is largely based on the court’s alleged wrongful use of travaux -préparatoires to derive intent, cannot be fully justified. It can be justified only up to the extent, through which the court has supported the same in past precedent cases. Some of these case examples were analysed in the above paragraphs. The VCLT and the textualist school therefore have influence over the ICJ with regard to those cases. However, this influence is again limited to the extent of influence yielded by the intent school over the court.
- The impact of this judgement will no doubt have an impact on countries which have made similar reservations. Therefore, new strategies and agreements will have to be adopted. However, at the same time this decision will challenge the leeway which countries presently enjoy, with regard to flexible modification of reservations to avoid ICJ jurisdiction.
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