Hague Case Law: Latest Developments
International Court of Justice
Maritime Delimitation in the Caribbean Sea and the Pacific Ocean and Land Boundary in the Northern Part of Isla Portillos (Costa Rica v. Nicaragua)
On Friday 2 February 2018, the International Court of Justice (ICJ) delivered its Judgment in two joined cases between Costa Rica and Nicaragua: Maritime Delimitation in the Caribbean Sea and the Pacific Ocean and Land Boundary in the Northern Part of Isla Portillos.
In the first case, presented on 25 February 2014, Costa Rica instituted proceedings against Nicaragua and requested the Court to determine the complete course of a single maritime boundary between all the maritime areas appertaining, respectively, to Costa Rica and to Nicaragua in the Caribbean Sea and in the Pacific Ocean, on the basis of international law. The second case, which was brought before the Court on 16 January 2017, concerned the precise location of the land boundary separating the Los Portillos/Harbor Head Lagoon sandbar from Isla Portillos and the establishment of a military camp by Nicaragua on the beach of Isla Portillos. In view of the close link between those cases, the Court joined the two proceedings.
After establishing the admissibility of Nicaragua’s claim concerning sovereignty over the northern coast of Isla Portillos, the Court found that by establishing and maintaining a military camp on Costa Rican territory, the Republic of Nicaragua has violated the sovereignty of the Republic of Costa Rica and ordered Nicaragua to remove its camp from Costa Rica’s territory.
The Court then turned to the question of the starting point of the delimitation. The Court here observed that since the starting point of the land boundary is located at the end of the sandpit bordering the San Juan River at its mouth, the same point would normally be the starting point of the maritime delimitation. However, the great instability of the coastline in this area, as indicated by two Court-appointed experts, prevented the identification on the sandpit of a fixed point that would be suitable as the starting point of the maritime delimitation. The Court therefore considered it preferable to select a fixed point at sea at a distance of two nautical miles from the coast on the median line and connect it to a starting point on the coast by a mobile line.
Subsequently, the Court turned to the question of the maritime delimitation in the Caribbean Sea. In accordance with Article 15 of the United Nations Convention on the Law of the Sea of 10 December 1982 (hereinafter ‘UNCLOS’) and the Court’s jurisprudence, the Court delimited this territorial sea in two stages: first, it drew a provisional median line using ‘only points situated on solid land’, since they ‘have a relatively higher stability than those placed on sandy features’. Second, it considered whether any special circumstances exist which could justify adjusting that line. In the Court’s view, the instability of the sandbar separating Harbor Head Lagoon from the Caribbean Sea and its situation as a small enclave within Costa Rica’s territory constituted such special circumstance calling for a special solution. Noting that, ‘should territorial waters be attributed to the enclave, they would be of little use to Nicaragua, while breaking the continuity of Costa Rica’s territorial sea’, the Court decided that the delimitation in the territorial sea between the Parties will not take into account any entitlement which might result from the enclave.
In order to define the single maritime boundary concerning the exclusive economic zones and the continental shelf appertaining to Costa Rica and Nicaragua the Court recalled that according to Articles 74 and 83 of UNCLOS it has to ‘achieve an equitable solution’. To this end, it used its established three-stage methodology. First, it provisionally drew an equidistance line using the most appropriate base points on the Parties’ relevant coasts. Second, it considered whether there exist relevant circumstances which are capable of justifying an adjustment of the equidistance line provisionally drawn. Third, it assessed the overall equitableness of the boundary resulting from the first two stages by checking whether there exists a marked disproportionality between the length of the Parties’ relevant coasts and the maritime areas found to appertain to them.
In its Judgment of 2 February 2018 the Court decided that the maritime boundary between the two States in the Caribbean Sea shall follow the course set out in paragraphs 106 and 158 of the Judgment, and that the maritime boundary between Costa Rica and Nicaragua in the Pacific Ocean shall follow the course set out in paragraphs 175 and 201 of the Judgment.
International Criminal Court
Lubanga Case: Trial Chamber II Issues Additional Decision on Reparations
On 15 December 2017, Trial Chamber II of the International Criminal Court (ICC) issued a decision setting the amount of Thomas Lubanga Dyilo’s liability for collective reparations at USD 10,000,000. The decision completes the Order for Reparations of 3 March 2015 in the case of The Prosecutor v. Thomas Lubanga Dyilo, which awarded collective reparations to the victims of the war crimes committed by Mr. Lubanga, namely conscripting and enlisting children under the age of 15 into an armed group and using them to participate actively in hostilities.
The Chamber examined a sample of 473 applications representative of all of the victims potentially eligible for reparations and concluded that 425 of them were most likely direct or indirect victims of the crimes of which Mr. Lubanga was convicted. The Chamber stated, however, that further evidence established the existence of hundreds or even thousands of additional victims affected by Mr. Lubanga’s crimes. The Chamber also stated in this respect that some potential victims were no longer willing or able to take part in the reparations process for safety reasons.
The Chamber recalled that the scope of a convicted person’s liability is proportionate to the harm caused and, among other things, his or her participation in the commission of the crimes for which he or she has been found guilty, in the specific circumstances of the case.
In view of Mr. Lubanga’s indigence, the Chamber invited the Board of Directors of the Trust Fund for Victims to examine the possibility of earmarking an additional amount for the implementation of collective reparations in this case. The Chamber also instructed the Trust Fund to make contact with the Government of the Democratic Republic of the Congo (DRC) to explore how the Government might contribute to the reparations process.
International Criminal Tribunal for the Former Yugoslavia
On 22 November 2017, in the final Trial Judgement of the International Criminal Tribunal for the former Yugoslavia (ICTY), Trial Chamber I convicted Ratko Mladić, former Commander of the Main Staff of the Bosnian Serb Army (VRS), of genocide, and persecution, extermination, murder, and the inhumane act of forcible transfer in the area of Srebrenica in 1995; of persecution, extermination, murder, deportation and the inhumane act of forcible transfer in municipalities throughout Bosnia and Herzegovina (BiH); of murder, terror and unlawful attacks on civilians in Sarajevo; and of hostage-taking of UN personnel. He was acquitted of the charge of genocide in several municipalities in BiH in 1992.
These crimes were committed by Serb forces during the armed conflict in BiH from 1992 until 1995. The Chamber found that Mladić committed these crimes through his participation in, and contribution to, four joint criminal enterprises (JCEs), i.e. the Overarching JCE, the Sarajevo JCE, the Srebrenica JCE and the Hostage-taking JCE. Mladić was instrumental to the commission of these crimes, the Chamber found, so much so that without his acts they would not have been committed as they were. The judges therefore found that he significantly contributed to achieving the common objective of permanently removing Muslims and Croats from Serb-claimed territory in BiH by committing the crimes.
In determining the appropriate sentence to be imposed, the Chamber has taken into account the gravity of the crimes of which Mr. Mladić has been found guilty. The crimes committed rank among the most heinous known to humankind and include genocide and extermination as a crime against humanity. As mitigating factors, the Defence referred to various circumstances including his benevolent treatment of, and assistance to, some victims; his good character; his diminished mental capacity, poor physical health, and advanced age. The Chamber, however, considered that most of the factors raised in mitigation by the Defence carry little or no weight. For having committed these crimes, the Chamber sentenced Mr. Mladić to life imprisonment.
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