When maritime entitlements between neighbouring coastal states overlap in the Exclusive Economic Zone (EEZ) or the continental shelf, Articles 74 and 83 of the United Nations Convention on the Law of the Sea (UNCLOS) provide that such issues shall be resolved ‘by agreement on the basis of international law, as referred to in Article 38 of the Statute of the International Court of Justice, in order to achieve an equitable solution’.Footnote ² The International Court of Justice (ICJ, the Court) is one of the institutions available to UNCLOS parties to resolve their disputes, pursuant to UNCLOS’s Article 287. The Court has developed extensive practice in maritime boundary disputes, definitively delimiting overlapping maritime claims to identify the maritime areas in which coastal states may exercise sovereign rights. In some boundary disputes, the Court has delimited (i.e. drawn) maritime boundaries, while in others, it has simply ascertained if a state has sovereignty over a disputed maritime zone, without necessarily delimiting a boundary.Footnote ³ This chapter considers both approaches.

Maritime boundary disputes may carry repercussions for the livelihoods of coastal populations requiring access to the fishing resources of certain waters. There are two main types of fishing activities of benefit to coastal populations: industrial and traditional (or artisanal) fishing. Industrial fishing is typically carried out by vessels catching tonnes of fish for the state. Traditional fishing is smaller in scale, carried out by communities of coastal inhabitants for their livelihood.Footnote ⁴ While industrial fishing activities may be considered, this chapter mainly focuses on traditional fishing. Maritime boundary disputes yield significant disruption for traditional fishing activities, which are of social and cultural importance to coastal populations.Footnote ⁵ It may also result in the internal displacement of coastal populations to sustain their livelihoods.

Despite these potential repercussions on coastal populations, such considerations are seldom reflected in the Court’s judicial reasoning. This chapter questions whether the Court’s approach aligns with the object and purpose of the UNCLOS to ‘promote the economic and social advancement of all peoples of the world, in accordance with the Purposes and Principles of the United Nations as set forth in the Charter’.Footnote ⁶ In other words, is it effectively supporting the UN regime? (Section I.1.1) Furthermore, is it upholding outcome legitimacy by making just decisions for coastal populations? (Section 1.1.2). In this chapter, I identify the distinct contexts in maritime disputes where concerns for local populations are raised in states’ arguments but ultimately dismissed by the Court. I observe that the overarching reason underpinning the Court’s approach is its adherence to formalism (Section 6.1). I first argue that this approach is appropriate when determining the pre-existence of a maritime boundary before proceeding with delimitation (Section 6.2). However, when adjusting a provisional line in maritime boundary delimitation, I argue that the principle of equity can play a greater role in promoting a fuller consideration of the needs of local populations (Section 6.3). The approach of dismissing concerns for local populations – and more specifically, their historic fishing rights – has also taken place beyond the delimitation process, when attributing sovereignty to a maritime zone (Section 6.4). In this context, I argue that reframing the understanding of stability can allow for historic fishing rights to be upheld and therefore for the needs of local populations to be considered. I then conclude (Section 6.5).

6.1 Formalism and the World Court

The Court’s approach to maritime boundary disputes is largely anchored in formalism, a normative theory that dictates how international law should be applied. In this section, I explain some relevant features of formalism to understand the Court’s approach to maritime boundary disputes developed in the remaining sections of this chapter.

First, formalism pleads for an exclusive application of law without consideration for non-juridical elements. It thereby distinguishes law from non-law, insisting that judges must only refer to the law to make their decisions.Footnote ⁷ This perspective assumes that the law, on one hand, and all other considerations, on the other, are autonomous and mutually exclusive. Accordingly, extra-legal considerations such as morality, substantive values, politics or humanitarian, or social or economic factors are outside of the scope of judicial activities and thus immaterial. According to formalism, amalgamating law with such elements would rob it of its objectivity, neutrality, and credibility.Footnote ⁸ Closely related is the distinction between lex lata and lex ferenda: any approach other than a strict reading of the black-letter law will result in what the law ought to be, as opposed to what it is.Footnote ⁹ This position was well expressed by the Court in South West Africa (Liberia v. South Africa; Ethiopia v. South Africa):

It is demonstrated in this chapter (Sections 6.2 and 6.3) that the Court rejects the consideration of coastal populations to adjust its delimited maritime boundary due to its reticence to apply what it considers to be ‘non-law’.

The second relevant feature of formalism is its objective to ‘provide predictability in the behaviour of law-making authorities’, such as the ICJ.Footnote ¹¹ It therefore implies that international judges have little choice in law application; their task is to apply jurisprudence to fortify an international legal system of norms.Footnote ¹² In the context of maritime disputes, the desire for predictability has led to the development of the principle of stability of boundaries. The Court has placed great emphasis on this principle, refusing to consider other elements that could somehow jeopardise it.Footnote ¹³ It has clearly stated that ‘Whether it is a land frontier or a boundary line in the continental shelf that is in question, the process is essentially the same, and inevitably involves the same element of stability and permanence, and is subject to the rule excluding boundary agreements from fundamental change of circumstances’.Footnote ¹⁴ Stability was reportedly the underlying objective behind outsourcing delimitation to international courts and tribunals; the International Tribunal for the Law of the Sea (ITLOS) explained in Bangladesh/Myanmar that international courts and tribunals were tasked with maritime delimitation to develop ‘a body of case law (…) which has reduced the elements of subjectivity and uncertainty in the determination of maritime boundaries (…)’.Footnote ¹⁵

Thus, in Continental Shelf (Tunisia/Libyan Arab Jamahiriya), Tunisia claimed that fishing resources must be taken into account as supplementing its national economy in eking out its survival as a country.Footnote ¹⁶ The Court carefully explained that it was unable to take such factors into account to delimit the continental shelf areas because ‘[t]hey are virtually extraneous factors since they are variables which unpredictable national fortune or calamity, as the case may be, might at any time cause to tilt the scale one way or the other. A country might be poor today and become rich tomorrow as a result of an event such as the discovery of a valuable economic resource’.Footnote ¹⁷ It has explained in other judgments that resource-related criteria are treated cautiously and not considered to be relevant circumstances in maritime delimitation.Footnote ¹⁸ Fishing activities fall under the same category, in the view of the Court.

It is observed in this chapter that the Court’s refusal to apply ‘non-law’ and its concern for predictability prohibit it from adjusting a provisional line in maritime boundary delimitation (Section 6.3). When determining sovereignty over a disputed maritime zone (without necessarily delimiting a boundary), the Court also prioritises stability by not upholding arguments related to historic fishing rights in maritime zones (Section 6.4). These reflect its broad formalist approach to international law, which is challenged in this chapter. This is because this approach can lead to unjust outcomes for coastal populations. From the perspective of social idealism, this can impact the legitimacy of the decision (Section I.1.2). An approach that does not consider such populations can also call the effectiveness of the Court into question (Section I.1.1). However, while the Court adopts a similar approach when determining the pre-existence of a boundary before exercising delimitation, I argue that this is appropriate in this context (Section 6.2).

6.2 Determining a Pre-existing Boundary

Before delimiting a maritime boundary, the Court may first seek to determine whether the parties have already agreed on a boundary. If no such agreement exists, the Court will then proceed to delimit the maritime boundary itself. It is observed in this section that while the Court may support state litigants factoring in their coastal populations when drawing a straight baseline, for example, it will not make the same consideration when deciding whether parties have already agreed on a boundary and when determining the extent of that boundary. This, I argue, is appropriate given the objectivity of the latter exercise.

In the 2014 Maritime Dispute (Peru v. Chile) judgment, the Court had to delimit the boundary between the two states’ maritime zones in the Pacific Ocean. The applicant Peru argued that access to the waters off the coast of Southern Peru was of critical importance to the local population and the country.Footnote ¹⁹ It requested the Court to recognise a maritime zone lying within 200 nautical miles of Peru’s coast and thus appertaining to Peru. Chile, on the other hand, considered this maritime zone to be part of the high seas. Peru’s main argument was that, in order to avoid friction and incidents with Chile due to the absence of a delimited maritime boundary, Peruvian fishermen’s activities had been limited on a provisional basis to the line of latitude and the zone of tolerance established in the 1954 Agreement on a Special Zone.Footnote ²⁰ Peru has therefore ‘exhibited considerable self-restraint’,Footnote ²¹ but now crucially needed definitive delimitation to provide its coastal population with an equitable access to the maritime resources of the disputed area.Footnote ²²

The Court, therefore, had to determine whether Peru did, in fact, own the said maritime zone lying within 200 nautical miles of its coast. Through analysing evidence, it first found that the parties had tacitly acknowledged the existence of an all-purpose pre-existing maritime boundary.Footnote ²³ Then, to determine the extent of this boundary – and more specifically, whether the boundary extended to the 200-nautical mile limit – it analysed the relevant practice of the parties in the early and mid-1950s.Footnote ²⁴

At the time, the state parties contended that the areas lying off their coasts were rich in marine resources, and expressed the fear that ‘large foreign fishing fleets exhausting resources necessary for the livelihood of coastal populations’, which the Chilean diplomat considered ‘tragic’.Footnote ²⁵ The Court also took note of the location of the most important fishing ports at the time for both parties – Ilo for Peru and Arica for Chile (120 km north-west and 15 km south of the seaward terminus of the land boundary, respectively).Footnote ²⁶ Ultimately, however, it concluded that the extent of the resources that would be important for fishing out to 200 nautical miles ‘[was] not see[n] as of great significance’.Footnote ²⁷ What it did consider significant was that such boats would not cross the parallel beyond a point approximately 57 nautical miles from the starting point of the maritime boundary.Footnote ²⁸ It therefore considered that fishing for coastal populations, while important, was not relevant in its assessment. The movement of the boats was what provided evidence to the Court to conclude that the boundary did not extend beyond 80 nautical miles from the coast.Footnote ²⁹

Indeed, ‘at the time when they acknowledged the existence of an agreed maritime boundary between them, [Peru and Chile] were unlikely to have considered that it extended all the way to the 200-nautical-mile limit’.Footnote ³⁰ This serves as indication that, regardless of the protests or concerns that state parties may raise with respect to the needs of their coastal populations, the process of establishing a pre-existing maritime boundary remains fact-based and evidence-driven. Akin to my assessment in Chapter 7 on effective control in territorial disputes, peoples’ actions are only considered as evidence for a specific task, if relevant, without considerations for their needs.

Elsewhere, the Court has demonstrated support for state litigants who, themselves, factor in the needs of their coastal populations when tasked with a drawing exercise. In the 1951 Anglo-Norwegian Fisheries case, Norway unilaterally enacted a 1935 decree delimiting its northern coast using straight baselines. The objective of the decree was to reserve certain fishing grounds situated off its northern coast for the exclusive use of its own fishermen. In defence of its decree, Norway argued that Norwegian fishermen living along the northern coast (the Lopphavet basin) had exclusively fished there throughout history. It therefore advocated for the traditional fishing rights of the communities living at the coast and the requirement to protect their interests. According to Norway, the fishing zone as delimited was necessary to safeguard the interests of these communities.Footnote ³¹ The Court recognised that these ‘[fishing] grounds were known to Norwegian fishermen and exploited by them from time immemorial’Footnote ³² and decided that ‘Such rights, founded on the vital needs of the population and attested by very ancient and peaceful usage, may legitimately be taken into account in drawing a line which, moreover, appears to the Court to have been kept within the bounds of what is moderate and reasonable’.Footnote ³³

The focus of this case was on the lawfulness of straight baselines, which states can draw of their own accord, as opposed to the determination of a pre-existing maritime boundary, which cannot be drawn by a state unilaterally. Nonetheless, this case shows the Court’s approval for the state litigant’s consideration of local fishermen’s needs. Where the Court engages in a similar drawing exercise (to determine the pre-existence of a maritime boundary), however, it is more mindful of the objectivity required by the task at hand. In my view, this is the correct approach for this particular task. While states may wish to exercise their sovereignty by considering fishing when unilaterally drawing their own lines, the Court’s foundational drawing tasks should be an objective fact-based – and not need-based – process.

In Maritime Dispute (Peru v. Chile), the Court first reached the conclusion that the pre-existing boundary spanned 80 nautical miles and then delimited the maritime boundary to determine its course from that point on.Footnote ³⁴ To reach the conclusion that the pre-existing boundary spanned 80 nautical miles, the Court could only rely on existing relevant evidence indicating what that boundary looked like. Similarly, delimiting the rest of its course beyond 80 nautical miles was the act of drawing the provisional line, which is the first stage of the maritime boundary delimitation process.

Indeed, when delimiting a maritime boundary, the Court has developed a general methodology in its jurisprudence. The first stage is usually the delimitation of a provisional line. The second stage of maritime delimitation requires the Court to consider whether certain factors – referred to as ‘relevant circumstances’ – necessitate adjusting the provisional line to achieve an equitable result.Footnote ³⁵ The final stage, in Exclusive Economic Zone (EEZ) and continental shelf delimitation, is to verify that this line does not lead to an inequitable result (disproportionality test).Footnote ³⁶

Massimo Lando observes that ‘[E]stablishing a provisional equidistance line[] should be approached as [an] objective exercise[]. Conversely, adjusting the provisional equidistance line and the assessment of disproportionality ensure that the boundary achieves an equitable solution’.Footnote ³⁷ The judicial process of the Court has distinguished between drawing lines and adjusting them. The Court may therefore draw provisional line in maritime delimitation (stage one), and then adjust the latter in light of needs of local populations, for example (stage two). In the delimitation exercise, there was an opportunity to raise concerns related to local populations as a relevant circumstance.Footnote ³⁸ The adjustment of the provisional line for relevant circumstances in maritime boundary delimitation, examined in further detail below, is where consideration of local populations is more appropriate and has more potential.

6.3 Maritime Boundary Delimitation

The Court can consider coastal populations as a relevant circumstance in stage two of the maritime delimitation process, necessitating the adjustment of the provisional line to achieve an equitable result. The Court can also consider coastal populations as a factor in stage three, when assessing the overall test for the equitableness of the boundary (disproportionality test). This involves conducting a final check that there is ‘no great disproportionality of maritime areas (…) by comparison to the ratio of coastal lengths’.Footnote ³⁹

Arguments relating to the fishing activities of coastal populations have come before the Court in different forms. First, states have indicated the importance of natural resources, the access to which provides food and energy and is therefore an important source of wealth for both governments and local populations. This was raised and rejected in Territorial and Maritime Dispute (Nicaragua v. Colombia), for example.Footnote ⁴⁰

A second argument is that fishing activities should be considered as evidence of the state’s conduct or effective control (effectivités) over a certain contested maritime zone, which should be factored into the delimitation of a contested boundary (Section 7.2). For instance, in Black Sea, Ukraine argued that its behaviour (providing licences for fishing practices and intercepting illegal fishing boats) constituted maritime effectivités and proved its sovereignty over the fishing zone extending up to the disputed line.Footnote ⁴¹ The acte à titre de souverain (‘act as the sovereign’) with respect to fishing should therefore be considered as a relevant circumstance.Footnote ⁴² The Court, echoing the findings of an arbitral tribunal that ‘resource-related criteria have been treated more cautiously’ in international adjudication, stated in this case that it ‘[did] not see (…) any particular role for the State activities invoked (…)’.Footnote ⁴³

Both arguments place more emphasis on the state’s interests: natural resources benefit states more generally, while fishing activities are raised as a conduct of states and evidence of their sovereignty. A third argument, which will be the focus of this section, squarely addresses the needs of local populations. In several instances, state litigants have argued that coastal populations’ ability to fish and acquire resources necessary for their livelihood should be a relevant circumstance, warranting the adjustment of the provisional line drawn in the first stage of the maritime delimitation process. However, the Court has only upheld this argument and adjusted the provisional line accordingly in one instance. This is because of its formalistic approach (Section 6.1) and a concern for the stability of boundaries.

I argue in this section that the principle of equity can play a greater role in promoting a fuller consideration of the needs of coastal populations. I first explain the principle of equity (Section 6.3.1). I then observe how the Court developed its jurisprudence consistently dismissing state litigants’ claims related to their populations (Section 6.3.2). Finally, I reflect on the appropriateness of this approach in light of the principle of equity (Section 6.3.3).

6.4 Historic Fishing Rights

Contrary to Section 6.3 addressing the stages of maritime boundary delimitation, this section focuses on disputes where the Court ascertains if a state has sovereignty over a maritime zone without drawing a maritime boundary. In this context, another scenario allowing for the consideration of fishing activities and their importance for local populations is when such activities are argued to be historic fishing rights. In this section, I identify the reasons for the Court’s reticence to uphold historic fishing rights in this context, including a concern for stability. I argue that reframing the understanding of stability can allow for a greater balance to be struck and, therefore, for the needs of coastal populations to be considered.

Given that traditional fishing has, by definition, been practised by coastal populations for generations, it qualifies as their historic right. The basic concept of historic fishing rights holds that nationals of one state have the right to traditionally fish in another state’s jurisdiction due to the historic longevity of this practice. Traditional fishing rights are private rights by nature and are acquired by use and time. However, ‘the interest of the State in the fisheries enjoyed by its nationals, and the protection which it provides them with, provide such private activities with a public underpinning and make possible the establishment of a mixed (private/public) prescriptive title’.Footnote ¹⁴³

State litigants have invoked their populations’ traditional fishing as a historic right to be considered in the Court’s assessment of the sovereignty over a contested maritime zone. As clarified by the arbitral tribunal in the South China Sea arbitration, historic rights ‘may [be a claim to] sovereignty, but may equally include more limited rights, such as fishing rights or rights of access, that fall well short of a claim of sovereignty’.Footnote ¹⁴⁴ States typically make such claims to sovereign rights in the other state’s EEZ or to invoke the alleged right of a state and its nationals to access and exploit living resources in another state’s EEZ.Footnote ¹⁴⁵

In this section, I observe that while the Court has stated that ‘[h]istoric titles must enjoy respect and be preserved as they have always been by long usage’,Footnote ¹⁴⁶ it has yet to uphold a claim to sovereignty nor has it found that one state’s population has a right to fish in the maritime zones of another state. I reflect on the reasons for this here, which include a concern for stability.

First, historic fishing rights are rarely upheld by the Court because opportunities to do so have been few and far between. Indeed, historic fishing rights are challenging for state litigants to invoke due to the burden of proof. This was seen in Alleged Violations of Sovereign Rights and Maritime Spaces in the Caribbean Sea (Nicaragua v. Colombia) (2022), where the Court rejected Colombia’s third counterclaim that Nicaragua failed to respect the traditional and historic fishing rights of the inhabitants of the San Andrés Archipelago, including the indigenous Raizal people, in the waters in which they were allegedly entitled to exercise said rights.Footnote ¹⁴⁷ To reach this conclusion, the Court considered whether there was a customary rule of international law under which the Raizales were entitled to fish in the relevant maritime zones. Colombia had provided eleven affidavits to prove the existence of this long-standing fishing practice. Although the Court acknowledged the need for ‘some flexibility’ in considering their probative value,Footnote ¹⁴⁸ it expressed caution in giving weight to affidavit evidence and ultimately judged that the eleven affidavits did not sufficiently establish its claim.

Judge ad hoc McRae argued in his dissenting opinion that the Raizales are indigenous fishermen and their claimed rights were therefore indigenous rights, which warranted special attention.Footnote ¹⁴⁹ He also argued that the standard the Court set for establishing traditional fishing rights was essentially one that could never be reached.Footnote ¹⁵⁰ Although Judge Xue made a declaration emphasising the importance of traditional fishing rights, and particularly their recognition and protection under customary international law,Footnote ¹⁵¹ she ultimately agreed with the decision to reject the counterclaim. The majority view of the judges to reject it indicates the bench’s reluctance to uphold traditional historic fishing rights in assessing the sovereignty of a maritime zone.

Second, historic fishing rights have also yet to be upheld because their importance decreased with the emergence of the EEZ. Traditional fishing rights have been addressed by the international community since before the adoption of UNCLOS in 1982. In 1958, the First Law of the Sea Conference (UNCLOS II) adopted a resolution recognising the preferential requirements of a state whose people are overwhelmingly dependent on coastal fisheries for their livelihood or economic development, or who engage in local fishing in small boats and are dependent on coastal fisheries for the animal protein in their diet.Footnote ¹⁵² The travaux préparatoires of Article 6 of the 1958 Convention on the Continental Shelf (one of the four conventions adopted at UNCLOS II) indicate that such fishing rights were ‘special circumstances’ influencing the delimitation of the continental shelf.Footnote ¹⁵³ However, with the steady emergence of the concept of the EEZ regime, traditional fishing activities were gradually marginalised by states.Footnote ¹⁵⁴

The Court seems to have followed this approach of minimising the importance of historic fishing rights. In Gulf of Maine, discussed earlier, the Chamber noted the US’s emphasis that its historic fishing presence in the area – which the Chamber described as ‘somewhat akin to the invocation of historic rights, though that expression has not been used’Footnote ¹⁵⁵ – should be a considered circumstance in the maritime boundary delimitation.Footnote ¹⁵⁶ The Chamber explained that while the US, as the coastal state, may have been able to achieve an actual de facto predominance for its fisheries at certain places and times, the situation radically altered after the coastal states set up EEZs. Such de facto predominance could no longer constitute a valid ground for its claiming of the incorporation into its own exclusive fishery zone of an area which had legally become Canada’s.Footnote ¹⁵⁷

Third, despite their decreased importance, any number of states may make historic fishing claims on the same disputed waters, and no single state can claim an exclusive fishing right. In the recent South China Sea arbitration, for instance, both China and the Philippines claimed historic fishing rights in the same fishing grounds.Footnote ¹⁵⁸ This would put the Court in a difficult position to decide between competing claims. While this has yet to occur, in the Fisheries Jurisdiction cases the Court dealt with competing claims between historic fishing rights, on the one hand, and other similar rights protecting local populations, on the other hand. There, the Court did not prioritise historic fishing rights either.

Indeed, the Fisheries Jurisdiction cases suggest that historic fishing rights do not automatically supersede all other considerations and are not absolute rights. While these were not maritime boundary delimitation disputes, the conclusions reached about historic fishing rights could also apply to such disputes. In these cases, the UK and Germany challenged Iceland’s assertion of an exclusive fishing zone extending 50 nautical miles.Footnote ¹⁵⁹ This assertion directly impacted the rights of British and German nationals who had historically fished in these waters. Iceland, however, justified its preferential rights on the grounds of its local populations as well. It claimed that its economy depended almost entirely on fishing in the vicinity of its coasts, and for this reason, ‘the population of Iceland has followed the progressive impoverishment of fishing grounds with anxiety’.Footnote ¹⁶⁰ Given that fishing equipment was much less efficient than it is today, Iceland advocated that measures to protect fisheries ought to be extended in proportion to the growing efficiency of fishing equipment.Footnote ¹⁶¹

The Court recognised that Iceland did have ‘preferential fishing rights’ in the maritime areas adjacent to its fishing zone but also that the UK and Germany had ‘traditional fishing rights’ in the same maritime areas.Footnote ¹⁶² The Court explained that neither right is absolute:

Accordingly, the Court concluded that both states had an obligation to recognise the other’s rights and that ‘[t]he most appropriate method for the solution of the dispute is clearly that of negotiation’.Footnote ¹⁶⁴ The parties were thus under mutual obligation to undertake negotiations to find an equitable solution in good faith. This demonstrates that historic fishing rights are in no way absolute. The Court’s judgment required Iceland to respect the historic fishing rights of the citizens of Germany and the UK and thus reaffirmed the importance of traditional fishing rights of third states. However, Iceland’s preferential rights also had to be respected by Germany and the UK.

The non-absolute nature of historic fishing rights was also indicated in Gulf of Maine, examined earlier, where the US claimed historic fishing rights and the Court did not give it any more consideration than it did to Canada’s socio-economic arguments relating to fishing activities.Footnote ¹⁶⁵ Indeed, there is no hierarchy between one type of fishing right and the other. The non-absolute nature of historic fishing rights is perhaps not too surprising if we consider that during the UNCLOS II negotiations, a proposal of a six-nautical mile fishing zone subject to traditional fishing rights for ten years was not adopted by the plenary.Footnote ¹⁶⁶

The fourth reason why the Court has yet to uphold historic fishing rights when assessing the sovereignty of a maritime zone is because they are exceptional in nature and cannot contravene the UNCLOS. Indeed, historic fishing rights often serve as an exception to the rules laid down in the UNCLOS in practice, most commonly because those rights existed before its adoption.Footnote ¹⁶⁷ For instance, Article 15 of the UNCLOS provides that the delimitation rule for the territorial sea does not apply ‘where it is necessary by reason of historic title or other special circumstances to delimit the territorial seas of the two States in a way which is at variance therewith’,Footnote ¹⁶⁸ and the heated negotiations about fishery limits in light of the breadth of the territorial sea during UNCLOS II indicate that fishing rights were targeted in these provisions.Footnote ¹⁶⁹

Further to this, historic fishing rights cannot supersede UNCLOS in cases of incompatibility, as indicated in the South China Sea arbitration. This means that the Court would not be able to uphold historic fishing rights if they contravened any clause in UNCLOS. Indeed, the arbitral tribunal did not doubt that China had historic rights giving it certain privileges in such waters, but explained that China’s adherence to UNCLOS had changed this situation and meant that it accepted to relinquish ‘the rights it may have held in the waters allocated by the Convention to the exclusive economic zones of other States’.Footnote ¹⁷⁰ This reasoning was inspired by the Court’s response to the US’s arguments about its historic fishing presence in the area, in Gulf of Maine.Footnote ¹⁷¹ The Tribunal explained that the South China Sea arbitration differed from the Fisheries Jurisdiction cases as the latter involved the UK and Germany asserting a right of access to Icelandic waters, rather than disputing Iceland’s EEZ rights, as China did.Footnote ¹⁷² Historic fishing rights are therefore interpreted within the framework and limitations imposed by UNCLOS, which ‘supersedes earlier rights and agreements to the extent of any incompatibility’.Footnote ¹⁷³ China’s historic rights were ‘contrary to the Convention and without lawful effect to the extent that they exceed the geographic and substantive limits of China’s maritime entitlements under the Convention’.Footnote ¹⁷⁴

A final and most relevant reason why the Court has not upheld historic fishing rights may be a concern for stability. Historic fishing reflects an activity carried out by a coastal population whose presence could change or evolve over time. In this sense, they could represent less permanence than geographical features in maritime disputes. Therefore, following a similar logic to that applied to territorial disputes (Chapter 7), the Court may be reluctant to draw conclusions based on possibly migrating populations in inter-state disputes. However, international law recognises stability as a characteristic of historic fishing. As the arbitral tribunal stated in the South China Sea award,

More broadly, with respect to vested rights referred to in this passage, international law has long recognised the stability of private rights such as historic fishing rights. Indeed, as the Permanent Court of International Justice (PCIJ) made clear, ‘Private rights acquired under the existing law do not cease on a change of sovereignty’.Footnote ¹⁷⁶ Therefore, historic fishing rights are characterised by their stability due to the longevity of this practice. They therefore reflect stability that aligns with the Court’s approach in such disputes and should be considered where appropriate.

To conclude, given the difficulties that arise when states invoke such rights as arguments in their pleadings, and the challenging characteristics of such historic fishing rights, they have yet to be upheld by the Court in its assessment of sovereignty over a disputed maritime zone.Footnote ¹⁷⁷ However, the arbitral tribunal stated in Grisbådarna as early as 1909, in reference to Sweden’s historic fishing rights, that ‘it is a well-established principle of the law of nations that the state of things that actually exists and has existed for a long time should be changed as little as possible’.Footnote ¹⁷⁸ It would therefore be advisable for the Court, a proponent for the principle of stability, to embrace historic fishing rights in all of their permanence where relevant.

6.5 Conclusion

Local populations are rarely factored into the legal reasoning of the Court in maritime disputes. The Court has dismissed states litigants’ arguments regarding the concerns for their fishing populations to influence the determination of a pre-existing boundary (Section 6.2). The desires or needs of local populations have always been rejected as relevant circumstances (or as a factor when assessing the overall test for the equitableness of the boundary) save in Jan Mayen, due to the exceptional severity of the situation (Section 6.3). The Court, although acknowledging the general value of historic fishing rights, has yet to uphold them as an argument in a maritime dispute (Section 6.4). From the perspective of social idealism, concerned with a greater balance between states and individuals, such outcomes can be considered unjust, calling into question the legitimacy of the decision (Section I.1.2).

The overarching explanation for the approach observed in this chapter is the Court’s application of formalism (Section 6.1). While I have argued that such an approach is appropriate when determining the pre-existence of a boundary (Section 6.2), the principle of equity could find application when adjusting the provisional line in maritime delimitation, to consider local populations impacted by this process (Section 6.3). While formalism and concerns for stability have hindered this, I have noted that equity is integral to the legal process. Moreover, the prioritisation of geographical circumstances is no less contrary to legal formalism than other relevant circumstances, may sometimes yield superficial outcomes, and may occasionally fall short in to adequately resolving the relevant dispute. Finally, I have identified and challenged the Court’s reluctance to uphold arguments related to historic fishing rights, as they reflect the stability and permanence valued by the Court (Section 6.4).

Debates on the nature of law—whether as predictable and constant or as equitable and just—both within and beyond the context of maritime boundary disputes, reflect the broader intellectual tension between stability and change that has shaped international legal discourse since time immemorial.Footnote ¹⁷⁹ Resolving such tensions and striking a satisfactory balance is a delicate, case-by-case task. However, while law must be stable, it ‘cannot stand still’.Footnote ¹⁸⁰ In this chapter, I have proposed ways to reconcile the need for change with the need for stability in maritime boundary disputes to better serve the local populations impacted by such judgments of the World Court.

Territorial land disputes are means for states to reinforce their territorial integrity. The principle of territorial integrity in international law assures a geographical space for a government to exercise its authority and therefore reinforces state sovereignty.Footnote ² Finalising the space in which a state may exercise its sovereignty, through stabilising its territorial boundaries, is therefore critical to states. Such boundaries can be defined as ‘the imaginary lines on the surface of the earth which separate the territory of one State from that of another, or from unappropriated territory, or from the Open Sea’.Footnote ³

There are two types of territory-related disputes that may appear before the International Court of Justice (ICJ, the Court): ‘frontier disputes’ or ‘delimitation disputes’ are centred on delimiting or clarifying the particularities of a line itself, while ‘disputes as to attribution of territory’ focus on the areas divided by the line.Footnote ⁴ While the Court elucidates that their difference is in the ‘degree as to the way the operation in question is carried out’, it admits that there is ‘not so much a difference in kind’Footnote ⁵ between them. Thus, both types of disputes will be examined in this chapter.

Inhabitants form a critical part of any territory. The first criterion of statehood in the 1933 Montevideo Convention on the Rights and Duties of States is ‘a permanent population’.Footnote ⁶ A lack of inhabitants on a territory may be an indication that it is terra nullius: belonging to no one.Footnote ⁷ The Court has clarified that state sovereignty comprises not only control over territory but also control over people.Footnote ⁸

As individuals form an important part of a territory, they are likely affected when territorial boundaries change. In the words of former ICJ President Rosalyn Higgins, ‘When a state delimits its territorial boundaries, grants nationality under its own rules and asserts territorial and extended jurisdiction over its nationals, individuals are manifestly affected.’Footnote ⁹ Indeed, handing down a judgment regarding a territorial dispute is only the beginning of the story for a state’s population, as several changes may thereafter occur on the ground. For instance, nationals may become foreigners, certain residents may have their status altered, and private property may become foreign instead of domestic, thereby requiring new rules of governance. Transferring property from one nation to another would be negotiated, and people may have to be compensated for losing their properties.Footnote ¹⁰ For instance, in Land and Maritime Boundary between Cameroon and Nigeria (Cameroon v. Nigeria: Equatorial Guinea intervening), the Court, inter alia, ordered a transfer of sovereignty of the Bakassi peninsula from Nigeria to Cameroon. This has impacted Bakassians identifying as Nigerian who have been killed, disenfranchised, or become internally displaced persons.Footnote ¹¹ As one author explained when describing this dispute,

In this chapter, I argue that such implications for individuals are seldom considered in territorial disputes and propose ways to do so. Such adjustments are encouraged to fulfill the demands of justice under social idealism, serving as a basis for evaluating the legitimacy of judgments. I first observe that the Court traditionally resolves territorial disputes with reference to a firm hierarchy of titles, few of which allow for the consideration of individuals (Section 7.1). Titles are modes of acquisition through which states will establish their sovereignty over a piece of landFootnote ¹³ – in other words, the legal or factual conditions that prove a state’s wilful territorial sovereignty.Footnote ¹⁴ I then consider how the title of effectivités could potentially allow for the consideration of individuals (Section 7.2) and acknowledge that their rights and needs have been mentioned by the Court as an afterthought in certain judgments (Section 7.3). Finally, I analyse the reasons for the Court’s approach (Section 7.4) and argue that the principle of equity could play a stronger role in allowing for the consideration of individuals in territorial disputes (Section 7.4). Section 7.5 concludes.

7.1 Legal Titles and Local Populations: A Mismatch

The most preferred titles by the Court are legal titles. The main difference between legal titles and the other main category of title, effectivités (Section 7.2), is that the latter is concerned with the display of authority – certain practices proving and establishing the existence of sovereigntyFootnote ¹⁵ – while legal titles rely on the source or root of territorial jurisdiction.Footnote ¹⁶ Indeed, emanating from legal acts, legal titles typically take the form of ‘a document endowed by international law with intrinsic legal force for the purpose of establishing territorial rights’.Footnote ¹⁷ While there are many kinds of legal titles, the most valued of them by the Court is a boundary treaty.Footnote ¹⁸

There are many reasons why boundary treaties are the most preferred legal titles. Treaties, more generally, are featured in Article 38 of the ICJ Statute, which compels the Court to consider them as a source of international law. They also reflect state consent, which is a paramount principle in the eyes of the Court.Footnote ¹⁹ Thus, to question the content of the treaty if presented would be tantamount to questioning and obstructing the parties’ desires.Footnote ²⁰

Boundary treaties are of particular value to the Court in the context of such disputes because they solidify territorial stability in a number of ways. First, in terms of ratione temporis, such treaties are timeless in that their consequences will continue even if the treaty itself ceases to exist, as stated by the Court in Territorial Dispute (Libyan Arab Jamahiriya/Chad).Footnote ²¹ Second, in terms of ratione personae, boundary treaties create objective borders that are valid erga omnes, creating rights binding upon third states.Footnote ²² Third, the common requirement for parties to register treaties with the United Nations Secretariat, pursuant to Article 102 of the UN Charter, gives a greater degree of certainty and transparency. These elements guarantee peace and long-term stability for states.Footnote ²³ The Court has explained the importance it places on such stability: ‘Whether it is a land frontier or a boundary line in the continental shelf that is in question, the process is essentially the same, and inevitably involves the same element of stability and permanence and is subject to the rule excluding boundary agreements from fundamental change of circumstances’.Footnote ²⁴

While certain treaties may confer rights upon individuals (see Section 9.1), the focus of boundary treaties is naturally not the inhabitants of the state parties. Therefore, given that the Court prioritises such treaties, it is no surprise that individuals are often sidelined in the Court’s judicial reasoning in the exercise of territorial boundary delimitation.

The second type of legal title prioritised by the Court in territorial disputes is the principle of the intangibility of boundaries inherited from colonisation, more commonly referred to as uti possidetis juris. This principle aims to ‘secur[e] respect for the territorial boundaries at the moment when independence [was] achieved’.Footnote ²⁵ Colonial powers will have typically adopted bilateral or unilateral instruments – for instance, a decree by one leader of a colony – or joint declarations or agreements between two colonial powers defining a boundary.Footnote ²⁶ The principle of uti possidetis juris transforms such delimitations into international frontiers.Footnote ²⁷

Like boundary treaties, most colonial agreements treated by the Court make no reference to the inhabitants of the disputed territory. Therefore, the principle of uti possidetis juris does not allow individuals to be considered in the Court’s legal reasoning in the context of territorial boundary disputes. Furthermore, this process of ‘freez[ing] the territorial title’Footnote ²⁸ focuses on the colonial power’s boundaries prior to the independence of the modern-day state and not indigenous boundaries of the first people settled on the land. The designated Chamber of the Court recalled in Land, Island and Maritime Frontier Dispute (El Salvador/Honduras: Nicaragua intervening) (1992) that ‘when the principle of the uti possidetis juris is involved, the jus referred to is not international law but the constitutional or administrative law of the pre-independence sovereign’.Footnote ²⁹ Hence, when El Salvador argued that the uti possidetis boundaries should be drawn based on those of the earlier Indian settlement (‘poblaciones’), the Chamber refuted this.Footnote ³⁰ The emphasis of such legal titles is on the will of the colonial sovereigns dominating the territory in question as opposed to local populations.

In the Court’s spirit of ensuring stability, the rationale behind the uti possidetis juris principle was the need for stability and security after decolonisation, particularly in African nations.Footnote ³¹ While understandable, the principle has still been criticised for undermining local populations. Makau Mutua has argued that this form of territorial boundary delimitation does not respect the real configuration of African populations. In his view, in instances where ‘European map-makers split one nation in two states (…), the fate of the people was discussed as though they were two separate and alien entities, in defiance of reality on the ground’.Footnote ³² Furthermore, the application of this principle is problematic insofar as it legitimises a posteriori the administrative decisions made in grave violation of the rights and freedoms of colonised populations.Footnote ³³ In this vein, Judge Mohamed Bennouna contemplates whether ‘contemporary international law can rely on law produced by such an institution, even though it involved only administrative boundaries which, moreover, attached little importance to the populations concerned and their historical and sociological relationships’.Footnote ³⁴

In sum, legal titles such as treaties and colonial instruments applied through the principle of uti possidetis juris do not leave much room for the consideration of individuals, as they reflect the desires of past and present sovereign powers at the expense of local populations. Beyond legal titles, however, effectivités present more prospects for inclusion.

7.2 The Potential of Effectivités

Contrary to the legal titles examined before (Section 7.1), effectivités has given individuals a platform of sorts in the Court’s jurisprudence on territorial disputes.Footnote ³⁵ Effectivités is the exercise of effective possession by an authority of the state on the basis of its sovereignty. Contrary to legal titles, relying on a legal source to prove the state’s sovereignty, effectivités relies on the state’s actions and practice that demonstrate its authority over the relevant territory. It includes any ‘actual continuous and peaceful display of state functions’,Footnote ³⁶ such as, but not limited to, ‘legislative acts or acts of administrative control, acts relating to the application and enforcement of criminal or civil law, acts regulating immigration, acts regulating fishing and other economic activities, naval patrols as well as search and rescue operations’.Footnote ³⁷ The Permanent Court of International Justice (PCIJ) explained in Eastern Greenland that alongside such a display of authority, ‘the intention and will to act as sovereign’ is required.Footnote ³⁸

Acts of individuals can serve as evidence of a state’s sovereignty over the relevant territory. An example where effectivités was recognised to this end was in Sovereignty over Pedra Branca/Pulau Batu Puteh, Middle Rocks and South Ledge (Malaysia/Singapore) (2008). Here, Malaysia claimed that its title to Pedra Branca/Pulau Batu Puteh was confirmed by the ties of loyalty existing between the Sultanate of Johor and a nomadic ‘people of the sea’ named the Orang Laut. These people were reported to have engaged in ‘various activities such as fishing and piratical activities in the waters in the Straits of Singapore, including in the area of Pedra Branca/Pulau Batu Puteh’.Footnote ³⁹ Malaysia provided evidence – writings of British officials in Singapore – that the Straits of Singapore were these peoples’ habitat that they frequently visitedFootnote ⁴⁰ and that they were subjects of the King of Johor, appointed by the latter.Footnote ⁴¹ Due to the high probative value given to these sources, the Court concluded that Malaysia had the original title over Pedra Branca/Pulau Batu Puteh.Footnote ⁴²

Therefore, effectivités is seemingly, as a state litigant once said, ‘[t]he only satisfactory way of dealing with the emotively real and ethically unavoidable question of the link between man and the land’.Footnote ⁴³ However, this title carries two main problems when considering its ability to integrate individuals into the Court’s legal reasoning in territorial disputes.

First, effectivités is secondary to legal titles. Despite this showcase of the behaviour of individuals in the assessment of territorial sovereignty, the Court has always stood by the primacy of legal title over effective control.Footnote ⁴⁴ This means that if both a legal title and effectivités are presented, and the legal title and effectivités state different rights, then preference is given to the legal title.Footnote ⁴⁵ For instance, the Court rejected Thailand’s claims of sovereignty over the temple in Preah Vihear, allegedly manifested through a number of acts of effective control subsequent to a 1904 boundary treaty with France attributing sovereignty to Cambodia.Footnote ⁴⁶

Effectivités only serves to confirm the right derived from a legal title if the latter is ‘obscure’Footnote ⁴⁷ or ‘doubtful’,Footnote ⁴⁸ therefore failing to provide a clear solution regarding the disputed territory.Footnote ⁴⁹ For example, the Court turned to effectivités in El Salvador/Honduras after noting that the legislative and administrative texts provided were ‘confused and conflicting’.Footnote ⁵⁰ Effectivités may also override legal titles where the latter is lacking.Footnote ⁵¹ For instance, in Sovereignty over Pulau Ligitan and Pulau Sipadan (Indonesia/Malaysia) (2002), the Court only considered effectivités after having decided that neither of the parties had provided a legal title.Footnote ⁵² Finally, effectivités may also be considered where a contending state proves that it acquiesced effective control over a disputed territory, despite the existence of a treaty attributing original sovereignty to another state (acquisitive prescription).Footnote ⁵³ Therefore, despite effectivités taking individuals into account, it is only a subsidiary consideration.

The second limitation to effectivités is its preoccupation with the state’s authority as opposed to the individual’s desires. The activities of individuals are not assessed to arrive at a solution that factors their needs or desires into account. Rather, they serve as ‘evidence of the intention of that Government to act as sovereign (…) involving a manifestation of State authority in respect of [the relevant territory]’.Footnote ⁵⁴ The Court clearly stated in Indonesia/Malaysia that ‘activities by private persons cannot be seen as effectivités if they do not take place on the basis of official regulations or under governmental authority’.Footnote ⁵⁵ The mere presence of individuals is therefore insufficient to be considered by the Court – only their presence à titre de souverain would yield value.Footnote ⁵⁶

Thus, the Court rejected Indonesia’s argument that Indonesian fishermen used the waters around Ligitan and Sipadan, as these activities did not constitute acts à titre de souverain reflecting the intention and will of Indonesia.Footnote ⁵⁷ Similarly, in Kasikili/Sedudu Island (Botswana/Namibia) where Namibia invoked its title on the grounds of effectivités in two instances to claim its sovereignty over the island, the Court found in both instances that there was nothing showing that the presence of the Masubia people was linked to territorial claims by the Caprivi authorities.Footnote ⁵⁸ It noted that it was ‘not uncommon for the inhabitants of border regions in Africa to traverse such borders for purposes of agriculture and grazing, without raising concern on the part of the authorities on either side of the border’.Footnote ⁵⁹ The acts of individuals in and of themselves are therefore insufficient to establish effectivités, reflecting the theory of agency.Footnote ⁶⁰

As it stands, the peoples’ consent and acceptance to be ruled by the claiming state litigant is in fact an implicit element in the Court’s assessment. They, for instance, pay taxes imposed by the state litigants or use buildings that the state litigants claim to have built. This receptivity indicates their acceptance of the state’s authority and therefore allegiance to that state. This, however, is not explicitly acknowledged nor examined in territorial disputes. As I have argued elsewhere, the Court could, in determining the application of effectivités, go further than assume the peoples’ allegiance due to their passive acceptance of the state’s actions.Footnote ⁶¹ It could verify that the individuals in question have exhibited allegiance and a desire to be governed by that state and explicitly affirm this.

For example, in El Salvador/Honduras, the Chamber noted that ‘[i]n the absence of legislative instruments formally defining provincial boundaries, not only the grants to Indian communities but also land grants to private individuals afford some evidence which might indicate where the boundaries were thought to be or ought to be’.Footnote ⁶² In this case, the private individuals must have consented to the granting state’s authority even if no mention was made of this in the analysis of effectivités by the Court. It is not only the state’s intention to govern a people but also the latter’s desire to be governed by the state, which has value in the claim of effectivités. Similarly, in Malaysia/Singapore, if there were any reason to believe that the Orang Laut did not accept the sovereignty of the Sultanate of Johor, the effectivités of Malaysia would likely not have been upheld. However, this step of the reasoning is omitted in judgments in territorial disputes, which only place emphasis on the state. My proposal is to not only analyse the Sultan of Johor’s authority over the Orang Laut but also to consider if the Orang Laut accepted such authority and, if so, explicitly state this.

This subtle shift does not compromise the principle of stability of boundaries as the Court is already foregoing such stability when resolving a territorial dispute on the grounds of a state litigant’s effectivités, due to the absence or inadequacy of a boundary treaty. The state’s territorial integrity also remains unaffected insofar as effectivités still aims to affirm the state’s sovereignty. However, this proposal implies that if, when assessing the peoples’ desires in the examination of effectivités, they do not align with the state’s acts a titre de souverain, then effectivités would not be upheld as a valid title in the given context. In such a scenario, the Court would still have other more subsidiary means to resolve the territorial dispute pursuant to its practice, such as the principle of equity explored later (Section 7.6).Footnote ⁶³

In summary, examining a state’s effectivités over a territory—and, by extension, the actions of individuals—is the primary means by which the latter are incorporated into the framework established by the Court for addressing territorial disputes. Despite its subsidiary nature, a shift in legal reasoning during its application can allow the desires of local populations to be considered in territorial disputes before the Court. This proposal does not completely address the marginalisation of individuals in territorial disputes before the Court, nor does it prioritise them in such cases. However, it offers a way to acknowledge peoples’ aspirations without upending the established jurisprudence that has shaped the Court’s steadfast approach.

7.3 Forsaken Titles

Legal titles and effectivités are the two main categories of title considered by the Court in territorial disputes. As observed earlier, neither directly reflects human concerns. However, state litigants have occasionally invoked other arguments allowing for local populations to be considered in the dispute, such as human concerns and history, respectively. This section illustrates such instances, noting that such titles have been rejected by the Court as they fail to fit in the well-established title system developed in its jurisprudence.

First, states have plainly expressed concern for the human dimensions of the case to advocate for the rights of their inhabitants in territorial disputes. In El Salvador/Honduras, for example, El Salvador explicitly requested for the appointed Chamber to consider the ‘human factor’ in hopes of impacting the Chamber’s legal reasoning in its delimitation of the territorial boundary. Explaining how the disputes would impact its local populations, it pleaded on the grounds of ‘reasons of crucial human necessity’,Footnote ⁶⁴ arguing that factoring in human considerations was ‘indispensable in the best interests of the requirements of authentic international justice’.Footnote ⁶⁵ It therefore asked the Chamber ‘to ensure that the duly considered judgment is appropriate for the destiny and necessities of the persons whose lives are bound up in the matter’.Footnote ⁶⁶ The Chamber, however, responded that its task was ‘to declare what areas are, and what are not, already part of the one State and the other. If Salvadorians have settled in areas of Honduras, neither that fact, nor the consequences of the application of Honduran law to their properties, can affect the matter’.Footnote ⁶⁷

A similar example where human concerns invoked by state litigants were rejected by the Court was in Frontier Dispute (Burkina Faso/Niger) (2013), where Niger argued extensively that populations should be taken into account in the delimitation of the territorial boundary. It argued that the 1927 Arrêté and Erratum that the Court was anticipated to rely on to resolve the dispute ‘raised problems for the nomadic populations’Footnote ⁶⁸ given that they are not sufficiently precise to fix the frontier at issue.Footnote ⁶⁹ Furthermore, Niger submitted that the territorial colonial partitions constituted a ‘socially disruptive factor’ which provoked ‘population movements motivated by the preservation of communal or cultural identities, or the safeguard of interests’.Footnote ⁷⁰ While the Court did not directly factor in such considerations, it used a map produced by the French Institut géographique national (IGN map)Footnote ⁷¹ as a reflection of the colonial effectivitésFootnote ⁷² in its resolution of the dispute, pursuant to the parties’ request.Footnote ⁷³ Given that the map was drawn on the basis of information, provided by the local authoritiesFootnote ⁷⁴ and consultations with village chiefs and local people,Footnote ⁷⁵ on the boundaries of their cantons,Footnote ⁷⁶ it was deemed by Judge Antônio Augusto Cançado Trindade to be ‘the appropriate frontier line therein from the perspective of the relations between people and territory’.Footnote ⁷⁷

Human concerns aside, state litigants have also made historical claims as title. This title is typically rooted in the idea that a certain state possessed a certain territory first or for a significant period of time. It therefore sheds light on a community who historically inhabited the disputed territory. However, the Court has typically discarded these arguments if it has been able to rely on legal titles or, eventually, effectivités. In Preah Vihear, the Court, satisfied with the 1904 Boundary Treaty, explicitly stated that it was unable to regard other arguments relied on by the parties ‘of a physical, historical, religious and archaeological character’ as legally decisive.Footnote ⁷⁸ In Territorial dispute (Libya/Chad), Libya had submitted to the Court that prior to French colonialism, part of the disputed territory (the “Borderlands”) was already inhabited by peoples under Libyan dominance,Footnote ⁷⁹ but the presence of a treaty eclipsed this argument.Footnote ⁸⁰ As explained earlier (Section 7.1), in El Salvador/Honduras, El Salvador argued that the uti possidetis boundaries should be drawn based on the indigenous delimitation of the early Indian settlement (‘poblaciones’), as opposed to the Spanish colonial administration’s boundaries.Footnote ⁸¹ The Court, however, rejected any historical titles pre-dating the parties’ independence in 1821.Footnote ⁸² In brief, historical claims have yet to be upheld by the Court in a territorial dispute.

State litigants have therefore expressed concerns for their people in various ways. French jurist Pierre-Marie Dupuy has commented that doing so benefits not only the local populations but also the litigants themselves: ‘[S]i, devant la Cour internationale de Justice ou tout autre tribunal international, un Etat était demain amené à défendre sa souveraineté sur la portion d’un fleuve ou d’un lac, il le fera d’autant mieux sur le plan juridique qu’il pourra s’appuyer sur le droit de sa population à l’eau.’Footnote ⁸³

The rejection of both human concerns and historical claims indicates that the Court is trapped within the parameters of the notion of legal title. Beyond the parties’ arguments, the consideration of populations will depend on their inclusion in legal sources recognised as legitimate by the Court. Arguments and titles raised outside of the title system have no place in the Court’s decision-making in territorial disputes.

7.4 P.S.: Questions, Rights and Needs

While the Court may not acknowledge historical claims nor human concerns, its inquiry into the human dimensions of the dispute through questions during oral proceedings has been noteworthy. For example, in the oral proceedings of Burkina Faso/Niger, Judge Cançado Trindade asked the parties to indicate, with precision, to what extent will the fixing of the frontier have a bearing on the nomadic populations in the relevant areas.Footnote ⁸⁴ Burkina Faso responded that the reduction of pastoral spaces posed by international borders may cause difficulties to the nomads, but in the instant case, any frontier that is determined between it and Niger will have no detrimental effect on the populations (nomads or otherwise) living in the border area.Footnote ⁸⁵ Niger, on the other hand, replied that while the authorities of both states do not rigorously apply the regulations for the movement of populations, this forms part of the modus vivendi between them (arrangement allowing for peaceful coexistence).Footnote ⁸⁶ Judge Cançado Trindade concluded from this that ‘any frontier to be determined does not seem likely to have an impact on the population, as long as both States continue to guarantee the free movement to the nomads and semi-nomads, and their living conditions do not change as a consequence of the fixing of the frontier (by the Court)’.Footnote ⁸⁷

The practice of asking questions indicates a certain interest from the judges on the bench in the fate of such populations and hints to a possible discussion in the judges’ deliberations. The practice also suggests that if the parties not provide this information proprio motu, the Court can inquire into the potential impact of boundary delimitation on the local populations of one or both countries.

Given the rarity of this practice and reliance on the interests of specific judges, a more common approach has been for the Court to acknowledge individual rights and needs of populations post scriptum, directing state litigants to address the repercussions of its judgments. The affirmation of individual rights post scriptum has been observed in four instances. First, refuting El Salvador’s human-centric claims explained before (Section 7.3), the appointed Chamber noted in El Salvador/Honduras that

Second, although it was decided in Kasikili/Sedudu Island that the island forms part of the territory of Botswana,Footnote ⁸⁹ the Court decided that there should be unimpeded access for the craft of the nationals and flags of the parties in the two channels of the river around the island irrespective of sovereignty on an equal treatment basis.Footnote ⁹⁰ This followed Botswana stressing its policy on free navigation during the oral hearings.Footnote ⁹¹

Third, in resolving the Cameroon v. Nigeria dispute, the Court was required to delimit the vicinity surrounding the Cameroonian village of Turu,Footnote ⁹² which had expanded onto Nigerian territory over time,Footnote ⁹³ and the boundary in the vicinity of the Nigerian village of Kotcha, which had spread over onto the Cameroonian side of the boundary.Footnote ⁹⁴ Predictably applying the treaty before it (the Thomson-Marchand Declaration) to resolve the matter, it stated that ‘It is instead up to the Parties to find a solution to any resultant problems, with a view to respecting the rights and interests of the local population’.Footnote ⁹⁵ It later stated in the judgment that ‘the implementation of the present Judgment will afford the Parties a beneficial opportunity to cooperate in the interests of the population concerned, in order notably to enable it to continue to have access to educational and health services comparable to those it currently enjoys’.Footnote ⁹⁶ This resulted in the establishment of a mixed commission to protect the right of affected populations through the Greentree Agreement.Footnote ⁹⁷ Its Article 3 accords rights to Nigerian nationals of the Bekassi Peninsula that must be respected by Cameroon.Footnote ⁹⁸

The fourth example where the Court acknowledged populations’ rights post scriptum is in Frontier Dispute (Benin/Niger) (2005) where Benin had argued that its people on the Nigerian bank had the acquired right to use the waters of the Niger River and that such rights should not be interfered with.Footnote ⁹⁹ The Court, following the precedent established by its predecessor that private rights acquired under existing law do not cease on a change of sovereignty,Footnote ¹⁰⁰ ruled that ‘the determination in regard to the attribution of islands effected above is without prejudice to any private law rights which may be held in respect of those islands’.Footnote ¹⁰¹

Beyond recalling individual rights or inviting state litigants to pay attention to them post hoc, the Court requested on one occasion for state litigants to have due regard for populations’ needs. It stated in Burkina Faso/Niger that ‘each Party, in exercising its authority over the portion of the territory under its sovereignty, should have due regard to the needs of the populations concerned, in particular those of the nomadic or semi-nomadic populations, and to the necessity to overcome difficulties that may arise for them because of the frontier. The Court notes the cooperation that has already been established on a regional and bilateral basis between the Parties in this regard, in particular under Chapter III of the 1987 Protocol of Agreement and encourages them to develop it further’.Footnote ¹⁰² The Court therefore likely considers that in certain cases, reminding the parties to consider local populations can help mitigate the negative repercussions of its judgment.

7.5 Reasons for the Court’s Approach

It has been established at this stage that the link between the legitimacy of territorial title and the fate of the residing population is seldom underlined in the Court’s judgments.Footnote ¹⁰³ A robust system has been woven into the Court’s jurisprudence, where legal titles, such as treaties, take precedence (Section 7.1). Only in the absence of such titles will the Court turn to effectivités (Section 7.2) where various acts by individuals may be valuable only as proof of the government’s acte de souverain over the territory in question. They serve more as a means of establishing the state’s sovereignty, rather than reflecting where individuals themselves feel a sense of belonging. This system leaves little room for other arguments such as human concerns or historical claims, although states have occasionally raised them (Section 7.3). However, such arguments have yet to be considered, with the Court only acknowledging individuals’ rights and needs post scriptum (Section 7.4).

It should be mentioned that the opportunities for the Court to address the repercussions on local populations are generally limited to states raising such concerns in their pleadings. Indeed, the Court is not authorised to raise such concerns upon its own initiative but is bound by the principle of non ultra petita (‘not beyond the request’). This principle holds that the Court may not decide more than it has been asked to and may not innovate outside of the parties’ submissions.Footnote ¹⁰⁴ The Court has recognised the principle in its own jurisprudence.Footnote ¹⁰⁵ It implies that unless state litigants raise concerns about their local populations in their pleadings, the Court may not take up the matter on its own accord. While state litigants have done so on many occasions presented in this chapter, the opportunity has not always presented itself for the Court to give due consideration to local populations.

However, in instances where such concerns have been raised, the Court has rejected them for two main reasons. The first reason is to respect the principle of the stability of boundaries (Section 6.1). The Court has made clear that the exercise of territorial delimitation has the objective ‘to achieve stability and finality’.Footnote ¹⁰⁶ This principle finds its origins in Article 62(2)(a) of the Vienna Convention on the Law of Treaties, which prohibits the invocation of a fundamental change of circumstances as a ground for terminating or withdrawing from a treaty establishing a boundary.Footnote ¹⁰⁷ The International Law Commission specified that this principle had the objective of avoiding ‘dangerous frictions’ by allowing changes to be made to boundary treaties, which are ‘instrument[s] of peaceful change’.Footnote ¹⁰⁸

While the principle of the stability of boundaries is important, the extent to which it should dictate the Court’s delimitation process has been questioned in scholarship. Charles de Visscher stated in 1969 that it is the sole criterion for interpreting boundary treaties.Footnote ¹⁰⁹ However, scholars have since challenged this, arguing that the exercise of delimiting territorial boundaries offers ‘great flexibility’ to judges,Footnote ¹¹⁰ who have a notably large discretionary power when delimiting territorial boundaries.Footnote ¹¹¹ My view, supported by certain scholars, is that the principle of the stability of boundaries serves to resolve preliminary questions related to the function of the boundary, such as the legal nature of the delimitation, its legal effects, or its domain of application. However, it is not necessarily relevant to the actual delimitation process, that is deciding whether the line should go here or there.Footnote ¹¹² Massimo Starita reasons that ‘Cela pour la simple raison que le but atypique des traités établissant des frontières (…) et le principe de sécurité qui l’accompagne semblent trop génériques pour aider l’interprète à choisir entre un tracé et un autre’.Footnote ¹¹³ It is therefore possible that the Court has occasionally applied the principle further than necessary.Footnote ¹¹⁴

The second reason for the Court’s approach to local populations in territorial disputes is its desire to respect formalism. As discussed in Chapter 6, legal formalism pleads for an exclusive application of law without consideration for non-juridical elements, such as morality, substantive values, politics or humanitarian, or social or economic considerations (Section 6.1). In the view of the Court, considering local populations in territorial disputes would contradict formalism, which is critical for a decision’s objectivity, neutrality, and credibility.Footnote ¹¹⁵ In the context of territorial disputes, the Court has been careful to note that it has not stepped outside the legal realm to reach its decision where it may be suspected that it has done so.Footnote ¹¹⁶

However, no formalist can deny the existence of the principle of equity (Section 6.3.1). Equity may be a tool to peacefully adapt laws at the drastic disservice of state litigants’ local populations. Its mere existence confirms the viable coexistence between the law and other considerations.Footnote ¹¹⁷ Indeed, equity is often considered alongside stability in the process of delimitation, as one arbitral tribunal stated.Footnote ¹¹⁸ Resorting to it would appear to be innate to a court carrying ‘justice’ in its name.Footnote ¹¹⁹ The next section examines its potential application in the context of territorial disputes to the benefit of local populations.

7.6 The Principle of Equity as a Tool to the Benefit of Local Populations

Equity may provide greater consideration of local populations than would be possible if only legal titles were applied. It allows for individuals to be integrated into the hierarchical framework developed through the Court’s jurisprudence on territorial disputes. Applying the principle of equity would typically result in a zone being split in half and equally attributed to each party. While the Court has stated that ‘[e]quity does not necessarily imply equality’,Footnote ¹²⁰ it has clarified that ‘where there are no special circumstances the latter is generally the best expression of the former’.Footnote ¹²¹

The Court has resorted to the principle of equity when it has had no other option and no evidence pointing to a legal title or effective control that could help it delimit the boundary. It has applied equity twice in the context of territorial disputes: in Burkina Faso/Mali (1986) where it divided the Soum pool equitably between the two states who had not submitted any evidence indicating where the boundary could run,Footnote ¹²² and in Burkina Faso/Niger (2013) to delimit a boundary river. Applying equity infra legem, it decided that ‘the requirement concerning access to water resources of all the people living in the riparian villages is better met by a frontier situated in the river than on one bank or the other’.Footnote ¹²³

Both times, the Court claimed to be applying equity infra legem – considered as an intrinsic attribute of the rules of law. As explained in Chapter 6, equity may also denote a means for filling the gaps in international law (equity praeter legem) or be used in derogation from the law, to remedy its social inadequacies (equity contra legem).Footnote ¹²⁴ This distinction is important to note, as it explains in part the Court’s reluctance to apply it altogether.

Chapter 6 explained that the Court has explicitly shown disapproval for equity contra legem (Section 6.3.1). It has been careful to specify in the scarce instances of applying equity that it was not doing so contra legem, as this is tantamount to ex aequo et bono where other considerations are taken into account instead of the law and not in parallel to it.Footnote ¹²⁵ The Court would not wish for state litigants to feel like it was disregarding the applicable law.

It has therefore stated that it would be unjustified to resort to equity in order to modify a frontier that has already been defined by valid sources of international law – no matter what deficiencies may exist.Footnote ¹²⁶ This stance is not ideal for local populations who may face repercussions from the Court’s decision in a territorial dispute. However, the principle of equity can be employed in the context of territorial disputes in order to allow for the consideration of individuals. Unlike in maritime disputes where equity is ‘the very content of the applicable rules’,Footnote ¹²⁷ equity in land territorial disputes is ‘seen as an attribute of the rules to be applied’.Footnote ¹²⁸

There are ways to innovate the application of equity in light of the above. For instance, the consideration for the needs of local populations in territorial disputes could be a ‘relevant circumstance’, akin to the second stage of the maritime delimitation process (Section 6.2 in fine). One author has described the recognition of such rights in judgments such as Burkina Faso/Niger as ‘a crystallization of a trend that consecrates [human rights] as a relevant circumstance in boundary delimitation cases’.Footnote ¹²⁹ Human rights of relevance in the context of territorial disputes could include access to food, water, subsistence, and the rights of indigenous peoples. Dissenting in Kasikili/Sedudu Island, Judge Christopher Weermantry proposes that the Court ‘should consider itself empowered to make a slight deviation from the strict geometric path indicated by the boundary treaty, but always preserving a balance between the entitlements of the two parties to the enjoyment of this precious asset’.Footnote ¹³⁰ This is similar to the Court’s practice in maritime delimitation, where it may adjust its provisional line upon the basis of relevant circumstances and must be sure that the line respects the principle of equity.

Indeed, instead of only employing equity when no title is available in territorial disputes, it could be an overarching principle overseeing that the Court’s adopted approach is fair and appropriate, as is also the case in maritime disputes. Thus, equity would be an element the Court will always check even after having applied a treaty or a colonial agreement through uti possidetis, to ensure that the applied law is ‘flexible and responsive’, in the words of Elihu Lauterpacht.Footnote ¹³¹ This aligns with the understanding of equity infra legem, which was described by the Court in Burkina Faso/Mali as ‘a method of interpretation of the law in force, and one of its attributes’.Footnote ¹³² This type of equity would interpret and guide the delimitation exercise.

Such a proposal comes with three important caveats. First, the application of equity in territorial disputes could generally be applied to any legal title whose implementation would affect local populations to some extent. The Court could apply the ‘catastrophic repercussions’ doctrine established in maritime disputes, despite criticisms of this threshold (Section 6.3.2). For example, cases whereby entire populations are uprooted to another country could qualify as meeting this threshold, warranting equitable considerations to interpret the legal title in more justice and fairness.

Second, this exercise cannot be used to outright contradict the legal title in question. Judges must remain within the boundaries of law. This is because treaties, as sources of international law enshrined in Article 38 of the Court’s Statute, reflect the paramount principle of state consent (Section 7.1).Footnote ¹³³ To question the content of the treaty by violating it (contra legem) would be questioning the parties’ wishes. The use of equity should therefore not change the sense of a clear text to create a new rule altogether that state litigants did not anticipate. Rather, it should be applied as far as possible to rectify justice through the interpretation of the relevant clauses of the legal title. This is a delicate exercise, nonetheless possible through the boundless discretion attributed to the Court in applying the principle of equity.Footnote ¹³⁴

Third, the application of the principle of equity by the Court in favour of local populations would only be applicable if concerns for these populations were initially raised by the state litigants in their pleadings or, where relevant, in a Special Agreement. Otherwise, the Court would be perceived as overstepping. Such behaviour may cause states to take their distance if they perceive that the Court is taking excessive liberties within its assigned duties.

To conclude, the principle of equity is treated in the context of territorial disputes as an afterthought in the absence of other titles. But it can be applied alongside any title to guarantee more fairness. Therefore, if the application of a treaty or a colonial agreement through uti possidetis negatively impacts the relevant population (for example, causing catastrophic repercussions) and if concern for this has been expressed by the parties, then equity infra legem should be applied at the Court’s discretion to control the damage as far as possible without contravening the title.

7.7 Conclusion

This chapter sought to outline how individuals are factored into the exercise of delimiting a contested territory. The overarching observation may be summarised as follows: ‘Territorial disputes have been a domain reservé for states and their diplomatic lexicon. Solely states have invoked peoples’ traditions, rights and fates in international adjudications. States have defended the former as a state’s historic rights or needs, giving normally a “territorial look” instead of a “population approach”’.Footnote ¹³⁵ Indeed, in territorial disputes, the Court sticks to its clearly developed system of hierarchised legal titles, which only involves individuals if they serve to prove an acte de souverain with regard to a sovereign state’s effective control. Only equity, applied ultima ratio, can allow for individuals’ needs to be considered. Thus, the Court’s delimitation process in both territorial disputes is largely no more than a purely geometrical exercise.

In this chapter, I reflected on how both effectivités and the principle of equity can be enhanced to allow for greater inclusivity in territorial disputes. This is because reducing the resolution of such disputes to a purely geometrical exercise may cause strife to many human beings and therefore be characterised as unjust. This, in turn, calls into question the legitimacy of the decision from the approach of social idealism. In the words of Judge Weermantry,

This chapter opened by explaining that territorial disputes rightfully allow states to reinforce their sovereignty. However, it is not absurd to claim that individuals concerned by the outcome of territorial inter-state disputes should be considered in decisions that will affect their everyday lives. As Judge Bennouna has aptly stated, ‘It is true that the Court, as the principal judicial organ of the United Nations, must contribute to the strengthening of peaceful relations between States (…). Nowadays, however, the search for peace among States also entails ensuring human security, namely respect for the fundamental human rights of the persons concerned and their protection, including by international justice. The exercise of sovereignty has thus become inseparable from responsibility towards the population. This new approach to sovereignty should certainly be present when the Court rules on the course of boundaries between States.’Footnote ¹³⁷

Compared to its extensive practice in territorial or maritime disputes, the International Court of Justice (ICJ, the Court) has had fewer opportunities to resolve environmental disputes between states. Since states acknowledged the scope of issues threatening the well-being of the planet that can only be tackled collectively, international environmental law has largely been developed through multilateral negotiations. However, there has been a recent surge in the judicialisation of international environmental issues. Not only have they been codified as sources of international law, but they have increasingly been the subject of disputes before international courts and tribunals, including the ICJ.

The judicialisation of international environmental law has provided ample opportunities for the Court to develop and clarify the law in this area. It has done so by identifying certain environmental principles – such as the duty to undertake environmental impact assessments (EIAs) or to prevent transboundary pollution – as customary international law.Footnote ² It has also developed certain environmental law principles, such as the duty to prevent and of due diligence.Footnote ³ In making such assessments, opportunities have arisen for the Court to draw connections between the environmental matters and the people impacted by environmental harm. This, however, has rarely been undertaken.

An environment of sufficient quality must be maintained to circumvent undesirable effects on human health and living standards and thus violate certain human rights.Footnote ⁴ The connection between the environment and human rights has been increasingly affirmed by regional human rights bodies,Footnote ⁵ the UN Human Rights Council, and the UN General Assembly.Footnote ⁶ If any damage to the environment is potentially harmful towards human health and quality of life, then any complaint regarding harm to the environment that is brought to the Court will likely have the objective of protecting individuals whose human rights have been violated as a result of this harm. Thus, several environment-oriented cases that the Court has entertained, whether contentious or advisory, were brought to its docket in the spirit of protecting individuals, with governments submitting arguments regarding the protection of their own populations.Footnote ⁷ However, opportunities have been missed to draw emphasis on the victims of environmental degradation. Such emphasis is desirable from a socially idealist standpoint, which, inter alia, perceives individuals as central members of international society and aspires for just judicial decisions through greater balance between states and individuals. In this context, this translates into stronger acknowledgement that inter-state environmental disputes impact the rights, health, and well-being of people.

Scholars have taken increasing interest in the judicialisation of international environmental disputes.Footnote ⁸ However, this chapter argues that such judicialisation before the ICJ has not developed international environmental law in a way favourable to victims of environmental degradation. First, certain promising human rights-focused environmental disputes were discontinued, indicating that other forms of peaceful dispute settlement remain more common in the environmental context (Section 8.1). Second, raising arguments in certain incidental proceedings in environmental disputes, such as counterclaims, have limited the potential for certain decisions to develop peoples’ rights in environmental disputes (Section 8.2). Third, the Court’s perceived judicial caution has limited its ability to clarify the role of local populations in environmental impact assessments (EIAs) (Section 8.3) and develop certain environmental principles in light of populations, such as the precautionary principle or the principle of intergenerational equity (Section 8.4). Section 8.5 concludes.

8.1 Protecting Victims of Environmental Degradation: Missed Opportunities

The first section presents environment-related contentious cases before the Court whereby states invoked arguments reflecting concern for their affected populations. It argues that the discontinuation of such disputes indicates that other forms of peaceful dispute settlement remain more common in the environmental context. Conversely, certain key environmental decisions rendered by the Court say very little about the relevant impacted populations, as they were not the focus of state litigants’ arguments.

First, three cases where state litigants focused extensively on the repercussions of environmental damage for their citizens were discontinued: Nuclear Tests (New Zealand v. France / Australia v. France), Certain Phosphate Lands in Nauru (Nauru v. Australia) and Aerial Herbicide Spraying (Ecuador v. Colombia).

In Nuclear Tests (New Zealand v. France / Australia v. France), both Australia and New Zealand instituted separate proceedings against France in 1973, as the latter wished to carry out nuclear tests in the atmosphere in the South Pacific region. Both Australia and New Zealand put forward the well-being of their populations as important arguments in their applications to institute proceedings. Indeed, Australia’s decision to seize the Court reflected the conviction of the Australian people.Footnote ⁹ One of Australia’s principal arguments in its application instituting the proceedings was that France was violating its right and the right of its people, in common with other states and their peoples, to be free from atmospheric nuclear weapon tests by any country.Footnote ¹⁰ More specifically, Australia’s motive was to protect the Australian peoples’ health and well-being,Footnote ¹¹ as it was concerned that the exposure of populations to radiation as a result of the nuclear tests would result in genetic mutations that would affect present and future generations.Footnote ¹² Furthermore, Australia contended that its people had undergone psychological strainFootnote ¹³ and mental stress resulting from fear and anxiety that the nuclear tests posed.Footnote ¹⁴ Australia concluded that this was ‘a cause of injury to them’.Footnote ¹⁵

New Zealand adopted similar rhetoric in its application to institute proceedings. Speaking on behalf of the Cook Islands, Niue, and other Pacific territories in which it monitors levels of radioactivity,Footnote ¹⁶ it claimed that France’s violation had caused harm, including apprehension, anxiety, and concern to its people.Footnote ¹⁷ It also stated in its application that there had been a ‘progressive realisation of the dangers which [nuclear tests] present to life, to health and to the security of peoples and nations everywhere’Footnote ¹⁸ and that no nation has the right to ‘pursue its security in a manner that puts at risk the health and welfare of other people’.Footnote ¹⁹

Both Australia and New Zealand’s approaches in this case place the individual at the centre of the motive to bring a case and reasons why the Court should uphold their claims. New Zealand argued that France’s nuclear tests breached its peoples’ rights to live free from radioactive material and, specifically, that such material should not cause them ‘harm, including apprehension, anxiety and concern’.Footnote ²⁰ As for Australia, it argued that France had breached its people’s rights to be free from such tests and to decide whether to be exposed to such radiation.Footnote ²¹ However, the Court did not end up rendering a judgment on the merits as France made several public statements announcing its intention to refrain from carrying out nuclear tests.Footnote ²² Characterised as unilateral statements, these sufficed for the Court to consider that the dispute had disappeared.Footnote ²³ The case was, in essence, discontinued not by the parties involved but by the Court itself, which deemed a non-judicial, political approach—specifically, a unilateral statement—sufficient to resolve the dispute.

The Certain Phosphate Lands in Nauru (Nauru v. Australia) case, which was discontinued after the issuing of preliminary objections, inherently focused on the nexus between environmental law and human rights. Nauru seized the Court against Australia alleging that certain phosphate lands in Nauru that were mined by Australia (prior to Nauru’s independence in 1968) were worked out, due to Australia’s poor administration of the territory at the time.Footnote ²⁴ Therefore, there was a violation of the Nauruan peoples’ right to self-determination and sovereignty over its natural resources.Footnote ²⁵ Nauru’s principle argument was that Australia had breached the trusteeship obligations laid down in Article 5(2)(1) of the Trusteeship Agreement, which guaranteed the promotion of the indigenous inhabitants’ advancement towards independenceFootnote ²⁶ and the consideration of their customs, usages, rights, and interests.Footnote ²⁷

The phosphate industry was an important means for the Nauruan people to seek ‘greater control over their own lives’;Footnote ²⁸ however, it was exploited by Australia and left in a useless state for habitation, agriculture, and other purposes necessary for the Nauruan people to live, until rehabilitation could be carried out. The repercussions of Australia’s actions for the Nauruan people were emphasised in Nauru’s Memorial.Footnote ²⁹ In the opinion of Judge Antônio Augusto Cançado Trindade, this case placed emphasis on the long-term needs and future of the Nauruan people, revealing that ‘the well-being of peoples is not devoid of a temporal dimension’.Footnote ³⁰ Had the Court rendered a judgment on the merits, it would have undoubtedly developed international law on the environment, human rights, and self-determination. However, Nauru and Australia notified the Court that they had reached a settlement and therefore discontinued proceedings.Footnote ³¹

A final discontinued case placing people at its core was Aerial Herbicide Spraying (Ecuador v. Colombia). Seizing the Court against Colombia for spraying toxic herbicides at locations near, at, and across their shared border,Footnote ³² Ecuador stated, ‘the spraying had already caused damage to people, crops, animals and the natural environment on the Ecuadorian side of the frontier, and pose[d] a grave risk of further damage over time’.Footnote ³³ In its application to institute proceedings, Ecuador also emphasised the severe impact on its communities and indigenous people.Footnote ³⁴ This included health issues caused by exposure to the sprays,Footnote ³⁵ damage to plants and crops that disrupted local farming needs,Footnote ³⁶ and pollution of water sources, which harmed aquatic life and adversely affected river communities relying on rivers for domestic purposes.Footnote ³⁷ For instance, Ecuador’s population in the northern boundary areas ‘reported serious adverse health reactions including burning, itching eyes, skin sores, intestinal bleeding and even death’.Footnote ³⁸

Furthermore, Ecuador pointed to the damage to plants and crops affected the farming needs of the local populationFootnote ³⁹ – the community of Las Salinas, for example.Footnote ⁴⁰ It reported negative effects on the health and food security of border populations by polluting water sources and aquatic life, particularly for river communities who use rivers for domestic purposes.Footnote ⁴¹ Ecuador also reported that people have been forced to relocate as a consequence of the aerial spraying.Footnote ⁴² In Ecuador’s Memorial, it included a number of witness statements to substantiate its claims of harm to individualsFootnote ⁴³ and included a table listing the Ecuadorian communities, the provinces they come from, and the time period in which they were impacted by the aerial sprays.Footnote ⁴⁴

This case would have required the Court to examine whether Colombia had breached its obligations to prevent transboundary harm and to comply with international human rights law and the rights of indigenous peoples. Achieving this would have required a thorough evaluation of the presented evidence detailing how these populations were affected. However, the case was eventually discontinued on 13 September 2013, as the parties were able to come to a settlement through negotiation.Footnote ⁴⁵

In these three discontinued cases, state litigants prioritised their populations in their arguments. In contrast, the Court has issued other significant judgments in environmental law that are not centered on human impacts Rather, the impacts on such cases on state litigants’ populations are briefly mentioned, and the legal question does not involve analysis related to local populations.

The first is Certain Activities carried out by Nicaragua in the Border Area (Costa Rica v. Nicaragua), where Costa Rica claimed that Nicaragua had breached its international treaty obligations by committing several incursions on Costa Rican territory, including activities that caused environmental damage to the rainforests, wetlands, and, consequently, the Colorado and San Juan Rivers.Footnote ⁴⁶ The proceedings for this case were joined with Construction of a Road in Costa Rica along the San Juan River (Nicaragua v. Costa Rica) (hereafter, the Road case).Footnote ⁴⁷ In the latter case, Nicaragua protested to the Court that Costa Rica had carried out road construction works along the border, causing environmental damage to Nicaragua’s territory.

Both state litigants made reference to the impact of the alleged breaches on their populations. In Certain Activities, Costa Rica claimed that Nicaragua had breached, inter alia, the SI-A-PAZ agreement (15 December 1990). This agreement sought to put into practice projects for national and sustained management of natural resources (with respect for the sovereign rights of each country), in order to improve the quality of life of the local populations and those of both countries in general.Footnote ⁴⁸ It was signed partly because the border region between Costa Rica and Nicaragua is inhabited by marginalised rural groups that have been unable to achieve sustainable development due to a lack of financial resources and technical advice.Footnote ⁴⁹ In the Road case, Nicaragua argued in its Memorial and filing for provisional measures that the construction of the road impacted upon the health of the riparian populations of the San Juan River.Footnote ⁵⁰ Costa Rica, on the other hand, justified its decision to construct the road by claiming that it needed Costa Rican police to have direct and expeditious access to the border area in order to provide the local population with essential services.Footnote ⁵¹

However, the Court’s legal reasoning in resolving the dispute did not necessitate further consideration of local populations. While it was briefly mentioned that Nicaragua had breached Costa Rica’s rights of navigation on the San Juan River,Footnote ⁵² the Court focused on interpreting the Treaty of Limits to determine whether Costa Rica had sovereignty over the disputed territory in Certain Activities.Footnote ⁵³ The interpretation of sources was also the means to assess the breaches of Costa Rica’s territorial sovereignty by Nicaragua.Footnote ⁵⁴ In assessing whether the obligation to prevent significant transboundary harm had been breached in both the Certain Activities and Road cases, the Court focused on the relevant procedural and substantive obligations that related to the environmental damage.Footnote ⁵⁵ To determine Costa Rica’s substantive obligation not to cause transboundary environmental harm, the Court focused on the sediments dredged from the river and deposited on the Costa Rican bank of the San Juan River, as well as the damage caused to the Humedal Caribe Noreste wetland by the dredging programme.Footnote ⁵⁶

The second environmental case where state litigants’ populations were only briefly mentioned is the Gabčíkovo–Nagymaros (Hungary/Slovakia) case. Here, the Court sought to resolve a dispute between the Republic of Hungary and the Czech and Slovak Federal Republic regarding the implementation and termination of a bilateral treaty regulating the construction and operation of the Gabčíkovo–Nagymaros Barrage System. This was ‘the first case before the ICJ to be concerned with international environmental law in such a comprehensive manner’,Footnote ⁵⁷ and the ‘heart of the dispute [was] the actual and anticipated environmental impacts of a major power project (…) between the capitals of two States’.Footnote ⁵⁸ The two states had agreed, through a treaty, to construct works on their respective riverbanks in order to produce hydroelectricity and improve navigation along the Danube.Footnote ⁵⁹ Hungary, however, suspended its works and then terminated the treaty due to its concern for the project’s impact on the environment,Footnote ⁶⁰ justifying its actions by relying on a state of necessity.Footnote ⁶¹

In light of the confluence between environmental law and human rights, it may be interpreted that Hungary’s motive to litigate was to safeguard its environment to the benefit of its population. Furthermore, the Court’s confirmation that safeguarding the environment is an ‘essential interest’ of the state, pursuant to Article 33 of the Draft Articles on State Responsibility, signalled the importance of protecting the Hungarian citizens’ human rights.Footnote ⁶² However, Hungary only briefly mentioned that it sought, inter alia, to repair the ‘damages suffered by the Hungarian population on account of the increase in the uncertainties weighing on its future (pretium doloris)’Footnote ⁶³ and that its people had the fundamental rights to its natural resources.Footnote ⁶⁴ Neither party’s arguments lingered on the impact of the project on their populations nor did Hungary’s requests require a people-focused assessment of any sort. The Court therefore did not dwell on this in its judgment, abiding by the principle of non ultra petita (‘not beyond the request’) (Section 7.5).

In sum, the discontinuation of environmental disputes yielding significance to victims of environmental degradation contextualises judicialisation as one of many ways to resolve environmental disputes in the international legal order. It also sheds light on the prevalence of other forms of peaceful settlement to resolve environmental disputes, such as negotiation. While the judicialisation of environmental disputes is increasing – especially in the wake of the climate crisis – the multiple avenues of dispute settlement might limit the potential for the World Court to develop the human rights–environmental law nexus to the benefit of individuals. Therefore, the judicialisation before the ICJ has not yet developed international environmental law in a way favourable to victims of environmental degradation.

8.2 The Limitations of Counterclaims

Even when arguments with both environmental and human impacts have been presented before the Court, and the cases were not discontinued, procedural obstacles have hindered the Court from developing its jurisprudence to the benefit of individuals. In Alleged Violations of Sovereign Rights and Maritime Spaces in the Caribbean Sea (Nicaragua v. Colombia), for instance, Colombia raised a counterclaim that Nicaragua failed in its due diligence to protect the rights of the inhabitants of the San Andrés Archipelago, particularly the Raizales, to enjoy a healthy, sound, and sustainable environment.Footnote ⁶⁵ The Court, however, decided by fifteen votes to one that this counterclaim was inadmissible.Footnote ⁶⁶

This dispute was a follow-up to the 2012 Territorial and Maritime Dispute (Nicaragua v. Colombia) case, where the Court was requested to assess which of the two states had sovereignty over a number of territorial and maritime features situated in the Caribbean Sea. The Court awarded all disputed territories to Colombia,Footnote ⁶⁷ while its delimitation of the relevant maritime zones largely favoured Nicaragua.Footnote ⁶⁸ After this judgment was rendered, Colombia enacted a 1946 Presidential decree proclaiming certain maritime boundaries in the Western Caribbean.Footnote ⁶⁹ According to Nicaragua, this decree establishes jurisdictional rights over its maritime zones as confirmed by the Court and thus violates Nicaragua’s sovereign rights over its maritime areas.Footnote ⁷⁰ Nicaragua therefore seized the Court in November 2013. In Colombia’s Counter-Memorial, in addition to defending its position with regard to the claims brought against it by Nicaragua, Colombia submitted counterclaims (which are, by definition, new claims linked to the principal claim). The second counterclaim was that Nicaragua violated its due diligence to protect the rights of the inhabitants of the San Andrés Archipelago, in particular the Raizales, to benefit from a healthy, sound, and sustainable environment.Footnote ⁷¹

At this stage of proceedings, the Court was not tasked with deciding whether the Nicaragua had violated its due diligence to protect the rights of the inhabitants, but rather whether there was a direct connection, pursuant to Article 80 of the Rules of the Court, between Colombia’s new counterclaim and Nicaragua’s principal claims.Footnote ⁷² If it were to decide that the new counterclaim was valid, it would pave the way for determining, at a later stage of the proceedings (the merits), whether Nicaragua had breached its due diligence obligations.

Under Article 80(1) of the Rules of the Court, for a counterclaim to be admissible, it must fall within the Court's jurisdiction and be directly related to the subject matter of the opposing party’s claim.Footnote ⁷³ If these requirements are met, the Court ‘may’ entertain a counterclaim, the wording suggesting that it enjoys a certain measure of discretion.Footnote ⁷⁴

In the present case, with regard to this second counterclaim, the Court concluded that such a connection did not exist factually nor legally. It first reasoned that the facts underlying the counterclaims relate to Nicaragua’s failure to protect and preserve the marine environment in the south-western Caribbean Sea (thereby affecting the Raizal community), while the principal claims are based on ‘Colombia’s Navy’s alleged interference with and violations of Nicaragua’s exclusive sovereign rights and jurisdiction in Nicaragua’s EEZ’.Footnote ⁷⁵ Furthermore, no legal connection existed, as Colombia invoked treaty and customary law regarding environmental protection in its counterclaim. Conversely, it referred to rules of treaty and customary law concerning the UNCLOS provisions on sovereign rights, jurisdiction, and duties of a coastal state within its maritime areas. The Court also determined that no legal connection existed, as it viewed the Parties as pursuing different legal objectives through their respective claims: Nicaragua initially sought to demonstrate that Colombia had violated its sovereign rights and jurisdiction within its maritime areas. In contrast, Colombia, through its counterclaim, aimed to establish that Nicaragua failed to fulfill its obligation to protect and preserve the marine environment in the south-western Caribbean Sea.Footnote ⁷⁶

Colombia’s concerns were not inherently problematic. Rather, it was Colombia’s decision to present them as counterclaims that explained their rejection. The requirements of Article 80(1) of the Rules of the Court posed a challenge for Colombia in raising a new claim at this stage of proceedings. This suggests that the judicialisation of environmental harm has limitations: certain procedures may prevent the development of peoples’ rights in the environmental context if specific conditions are not met. In this sense, environmental judicialisation before the ICJ has further impeded the development of jurisprudence that could benefit victims of environmental degradation.

8.3 People and Environmental Impact Assessments

It has thus far been observed that the judicialisation of environmental disputes to protect victims of environmental degradation has been challenging due to the discontinuance of promising cases (Section 8.1) and procedural obstacles (Section 8.2). However, even where promising opportunities have arisen, it is observed in this section that the Court has displayed notable judicial caution, often refraining from addressing questions directly relating to the role of local populations in the environmental dispute. This was notable in the Pulp Mills on the River Uruguay (Argentina v. Uruguay) case.

The Pulp Mills case is another critical dispute in which individuals’ health and well-being formed a crucial part of the parties’ arguments. Argentina seized the Court against Uruguay, which it accused of authorising and commissioning the construction of two pulp mills on the River Uruguay without notification,Footnote ⁷⁷ thus violating the 1975 Statute of the River Uruguay.Footnote ⁷⁸ Uruguay also allegedly failed to take precautionary measures, including conducting an environmental impact study.Footnote ⁷⁹

In this case, Argentina particularly advanced arguments on the negative effects of the pulp mills on its population, namely on human health, well-being, and livelihood.Footnote ⁸⁰ Regarding human health, Argentina went to great lengths to demonstrate that the impacts of the pulp mills on the River Uruguay and on the air were hazardous to human health,Footnote ⁸¹ not to mention that they incurred civil unrest.Footnote ⁸² The rights of the Argentinian population were also emphasised during oral proceedings, where Argentina’s counsel claimed that the rights at stake concerned the riverside populations, most directly affected by Uruguay’s compliance with its international legal obligations.Footnote ⁸³ The general well-being of the local population was also advanced by Argentina on a number of occasions.Footnote ⁸⁴

Furthermore, Argentina argued that the regions near the River Uruguay had been developed for tourism, a source of revenue for a large number of inhabitants; the pollution of the river was thus damaging to their livelihood.Footnote ⁸⁵ Uruguay, on the other hand, responded that the pulp mills were not a menace to human healthFootnote ⁸⁶ – even going as far as advocating in its Rejoinder that social impact monitoring had indicated an improvement in the ‘quality of life’ in Fray Bentos and ‘surrounding communities’.Footnote ⁸⁷ The Court finally ruled that Uruguay had not breached any substantive obligations under Article 41 of the 1975 Statute of the River Uruguay.Footnote ⁸⁸

But unlike contentious cases seen earlier such as Gabčíkovo-Nagymaros or Certain Activities/Road, this case raised specific questions regarding aspects of environmental principles and their connection to people. As mentioned earlier, the Court has taken opportunities to consolidate certain environmental law principles as rules of customary international law. One of these principles is the duty to perform an environmental impact assessment (EIAs). Principle 17 of the Rio Declaration on Environment and Development (1992) states that ‘[e]nvironmental impact assessment, as a national instrument, shall be undertaken for proposed activities that are likely to have a significant adverse impact on the environment and are subject to a decision of a competent national authority’.Footnote ⁸⁹ This established practice in environmental law has the rationale of preventing environmental degradation, by enabling the state to evaluate the environmental consequences of a project and thus decide if the potentially negative impact outweighs the benefits.Footnote ⁹⁰ The Court established in Pulp Mills and reaffirmed in Certain Activities/Road that the obligation to carry out an EIA is part of customary international law.Footnote ⁹¹

While this was a welcome finding, ambiguity persists regarding the finer details of EIAs.Footnote ⁹² As Judge Bhandari opined in Certain Activities/Road, international environmental law is ‘lamentably silent’ on its exact contents.Footnote ⁹³ More specifically, the Court was given an opportunity to clarify the role of local populations in the EIA process in Pulp Mills. Both Argentina and Uruguay claimed in their Memorials that conducting an EIA includes consulting the affected populations.Footnote ⁹⁴ However, they disagreed on two key points. First, they disagreed on whether consulting affected populations as part of an EIA is an obligation under international law. The second point was the extent to which the affected populations must be consulted. I argue in this section that the Court’s approach to such questions is marked by judicial caution.

Judicial caution is an approach or an attitude of ‘prudence’ when applying the law in force,Footnote ⁹⁵ out of concern that judges may overstep their authority or render decisions with far-reaching implications. Sir Gerald Fitzmaurice observed that this may involve deciding the case at hand ‘with the minimum of verbiage necessary for this purpose’.Footnote ⁹⁶ While judges may still develop international law, Hersch Lauterpacht described that they may do so ‘without admitting it; (…) while guided at the same time by existing law; (…) while remembering that stability and uncertainty are no less of the essence of the law than justice’.Footnote ⁹⁷ In Pulp Mills, judicial caution was evident in the Court’s handling of clarifying the role of local populations in EIAs.

Firstly, the Court demonstrated judicial caution in this case when asked to determine whether conducting an EIA entails an international obligation to consult local populations. Argentina and Uruguay disagreed on this point. Argentina contended that the provision of the appropriate information and consultation with states concerned and the affected local population are integral parts of the principle.Footnote ⁹⁸ According to Argentina, this obligation requires the state conducting the EIA to fulfill it before obtaining consent from the potentially affected state.Footnote ⁹⁹ Thus, having failed to adequately consult the affected Argentinian populations, Uruguay violated its duty to perform an EIA.Footnote ¹⁰⁰

To support that the consultation of affected populations is an international legal obligation under the duty to carry out an EIA, Argentina cited a number of international legal sources:Footnote ¹⁰¹ the Convention on Environmental Impact Assessment in a Transboundary Context (Espoo Convention),Footnote ¹⁰² the African Commission on Human and Peoples’ Rights,Footnote ¹⁰³ the Inter-American Commission on Human Rights,Footnote ¹⁰⁴ and Operational Policy 4.01 on Environmental Assessment of the International Finance Corporation (IFC).Footnote ¹⁰⁵ These sources indicate that populations must participate in the process of assessing the impact on the environment and that their views must be taken into account. Argentina also referred to the World Bank Inspection Panel, which has underlined the importance of conducting timely and meaningful consultations with the concerned populations.Footnote ¹⁰⁶ It also mentioned an example of the case taken up by the Aarhus Convention Compliance Committee (an innovation explained later in this chapter) concerning the construction of the Bystroe deep water navigation canal. The Committee ruled that Ukraine had violated the Aarhus Convention, as it was fully aware of the concerns of the Romanian citizens and could have initiated the participation process through the Romanian authorities.Footnote ¹⁰⁷ Argentina also made reference to Article 13 of the 2001 International Law Commission (ILC) Draft Articles on Prevention of Transboundary Harm from Hazardous Activities, and Principles 7 and 8 of the United Nations Environment Programme (UNEP) Goals and Principles.Footnote ¹⁰⁸ Essentially, Argentina insisted that the public must have the possibility to examine all the pertinent details in order to guarantee its transparent participation.Footnote ¹⁰⁹

Uruguay, on the other hand, argued more generally that the EIA is a national – and not an international – procedure. It is not a joint procedure to be carried out in cooperation with other states.Footnote ¹¹⁰ It cited Principle 17 of the 1992 Rio Declaration on Environment and Development as well as the ILC’s commentary on its draft Articles on Prevention of Transboundary Harm from Hazardous Activities, both of which describe the EIA as a national instrument or procedure in and by the state of origin.Footnote ¹¹¹ Uruguay agreed that it must notify potentially affected states, pursuant to Principle 12 of the 1987 UNEP Goals and Principles of Environmental Impact Assessment (UNEP EIA Principles), but asserted that such states are not expected to participate in a national EIA because it is not an international process.Footnote ¹¹² Uruguay also added that even if there were a right to participate, it would only be to the extent of providing information and making representations – but not providing prior approval.Footnote ¹¹³ Therefore, Uruguay denied that such an international obligation exists altogether – let alone an international obligation towards concerned populations.

The Court, after summarising the positions of the two parties in its judgment, curtly decided that ‘no legal obligation to consult the affected populations arises for the Parties from the instruments invoked by Argentina’.Footnote ¹¹⁴ This was a manifestation of judicial caution, where the Court avoided the crux of the question. Argentina did not mean to argue that Uruguay is bound by the specific instruments that Argentina mentioned. Of course, Uruguay could not be legally bound to consult affected populations on the basis of the Espoo Convention, as this is a United Nations Economic Commission for Europe (UNECE) convention that neither Argentina nor Uruguay has signed or ratified. Nor would Argentina argue that Uruguay is bound by anything established by the African Commission on Human and Peoples’ Rights, or by non-legal sources such as the Operational Policy 4.01 on Environmental Assessment of the IFC or by the UNEP EIA Principles. Argentina could not have been saying that a legal obligation to consult affected populations arises for Uruguay from these sources.

Rather, Argentina meant to say that the consultation of affected populations has generally become an international legal obligation, most likely in the form of customary international law. This would justify the mentioning of these instruments by way of example to demonstrate the development of this practice by states, and/or their belief that this is a legal obligation (opinio juris). Thus, the Court was stating the obvious that no legal obligation arose from the instruments invoked. It chose a very narrow reading of the question in order to avoid responding to the real question, which was whether an international legal obligation to consult the affected populations generally existed. This more challenging question would have required the Court to identify the existence of a customary norm.

Apart from customary law, the Court could have also affirmed that consulting affected populations as part of an EIA constitutes an international obligation, based on Uruguay's unilateral statement. Judge ad hoc Raúl Emilio Viñuesa mentioned in his dissenting opinion that the Court did not address Uruguay’s unilateral obligation to comply with established European standards. These standards mandate public consultation with local populations potentially affected by transboundary projects, ensuring their effective participation at an early stage.Footnote ¹¹⁵ Perhaps Uruguay had indeed made a unilateral declaration under international law that could have been examined by the Court, as such declarations are considered to be binding on the state that made it.Footnote ¹¹⁶ Thus, both types of international legal obligation – customary law and unilateral declarations – could have established that consulting the local populations is, indeed, an international legal obligation that Uruguay must respect. However, the Court, in its exercise of judicial caution, refrained from addressing this matter altogether.

The Court’s second display of judicial caution emerged in addressing a point of contention between Uruguay and Argentina regarding the extent to which the affected populations must be consulted. Uruguay claimed in its Counter-Memorial that its EIA summary was made available for public comment from 7 December 2004 to 3 January, and a Public Meeting was held on 21 December 2004 to that end.Footnote ¹¹⁷ It also argued that it gave Argentina sufficient information about the second pulp mill (referred to as Botnia). For instance, on 9 December 2005, it gave an outline presentation on the evaluation of the medium prepared by MVOTMA (Ministerio de Vivienda Ordenamiento Territorial y Medio Ambiente), examining the impact of pulp mills on human communities, specifically examining populations. The presentation stated that Uruguay’s implementation plan ‘shall define concrete measures for the impacts on the environment from noise, disturbing odour, and effects on tourism, fishing and leisure activities in the area surrounding Fray Bentos’.Footnote ¹¹⁸

Argentina retorted that Uruguay’s decisions were based on unsatisfactory environmental assessments.Footnote ¹¹⁹ It argued that the Compliance Advisor/OmbudsmanFootnote ¹²⁰ of the World Bank’s IFC reported that Uruguay’s EIA did not adequately address the concerns of potentially affected local people.Footnote ¹²¹ Indeed, its method reflected a lack of consultation with the public.Footnote ¹²² The November 2005 report stated that Uruguay’s consultation process seemed ‘rushed’, ‘presented as a fait accompli to those being consulted’, without ‘sufficient acknowledgment of the legitimacy of concerns and fears of communities that are local to the project’.Footnote ¹²³ It encouraged Uruguay to implement specific efforts to ‘ensure that people who believe that they will be impacted are able to have trust in the process’.Footnote ¹²⁴

The Court, in addressing this question, noted all the instances in which Uruguay consulted the affected populations on both the Argentine and Uruguayan sides of the river: meetings with the participation of Argentine NGOs on 2 December 2003 in Rio Negro and on 26 May 2004 in Fray Bentos; a public hearing with inhabitants of Fray Bentos and nearby regions on 21 December 2004; and interviews conducted in Fray Bentos, Gualeguaychú, Montevideo, and Buenos Aires between June and November 2005 with civil society groups.Footnote ¹²⁵ Upon the basis of these events, the Court concluded that consultation of the affected populations ‘did indeed take place’.Footnote ¹²⁶

However, this bypassed the initial question. The parties were not in dispute that Uruguay had taken measures to consult affected populations, but rather whether Uruguay’s actions were sufficient. For this, the objective was to know to what degree local populations are to be consulted for an EIA under international law and whether Uruguay had met this standard in the present case. Judge ad hoc Viñuesa described in his dissent that ‘[t]he Parties’ disagreement concern[ed] the results of the consultation of the affected populations, the extent to which concerns raised were taken into consideration and whether the consultation was meaningful’.Footnote ¹²⁷

It is undisputed that public participation and consultation is a critical component of EIAs – even described by one author as ‘its soul’.Footnote ¹²⁸ Professor Alan Boyle commented that ‘[t]here should have been no difficulty persuading the Court (…) that public consultation is a necessary element of the EIA process (…)’.Footnote ¹²⁹ The right of public participation in EIAs is well-recognised in international environmental law and considered a symbol of its ‘democratisation’.Footnote ¹³⁰ However, the extent to which local populations should be consulted is unclear in international environmental law. This raises further questions regarding the timing, manner, and duration of the consultation process.

The question of when local populations should be consulted is particularly challenging. This is not helped by the fact that it is unclear at what stage an EIA should be carried out in international law. One issue to be clarified is whether an EIA should be carried out before any authorisations to commence the project are granted.

Argentina argued in its Memorial in Pulp Mills that ‘without prior assessment there can be no meaningful notification and consultation in most cases of environmental risk’Footnote ¹³¹ and that ‘the project sponsor supplies relevant material in a timely manner prior to consultation’Footnote ¹³² for such consultations to be meaningful. The Court ruled that Uruguay failed to give prior notification to CARU (Comisión Administradora del Río Uruguay), the binational commission tasked with monitoring the river pollution – and to Argentina, as required by Article 7 of the 1975 Statute.Footnote ¹³³ The Court made it clear that with regard to CARU, the notification must be carried out in order for CARU to determine ‘on a preliminary basis’,Footnote ¹³⁴ with the aim of obtaining ‘initial environmental authorization and before the granting of that authorization’.Footnote ¹³⁵ With regard to the state, the Court also clarified that ‘the notification must take place before the State concerned decides on the environmental viability of the plan, taking due account of the environmental impact assessment submitted to it’.Footnote ¹³⁶

However, these conditions are strictly applicable to the 1975 Treaty in question. What does general international law say about when to carry out an EIA? Doctrine is not clear on this, but some lean towards the view that EIAs should be carried out before any authorisations to commence the project are granted.Footnote ¹³⁷ This would mean that affected populations would be consulted as part of the EIA process, before the granting of an authorisation. Boyle explains that while it may normally take place before authorisation is granted, it may actually occur in several stages or schemes – for instance, an initial assessment followed by a full one if the likelihood of harm is identified.Footnote ¹³⁸

In Pulp Mills, the Court acknowledged that Uruguay had indeed consulted the affected populations between June and November 2005.Footnote ¹³⁹ However, Uruguay issued the initial environmental authorisations to construct the first pulp mill (referred to as CMB) on 9 October 2003 and to construct the second pulp mill (Botnia) on 14 February 2005.Footnote ¹⁴⁰ It granted an authorisation for the first phase of construction of the Orion (Botnia) mill on 12 April 2005. Thus, authorisation to commence the project had already been granted before populations were consulted. Only one authorisation was granted after consultations had begun: on 5 July 2005: an authorisation to construct a port terminal for its exclusive use and to utilise the river bed for industrial purposes.Footnote ¹⁴¹ Therefore, populations should have been consulted prior to any action for it to be considered meaningful.Footnote ¹⁴² It was not, despite the Court’s assertion to the contrary.Footnote ¹⁴³ However, the Court’s cautious approach, reflected in its use of the ‘minimum of verbiage necessary’,Footnote ¹⁴⁴ left its reasoning leading to this conclusion unclear. Further elaboration on this point would have been helpful to clarify the ambiguous yet critical practice of conducting EIAs.

Timing is only one element in an assessment of the extent to which local populations should be consulted for an EIA. Other questions may also be raised, such as the extent of consultation, the method of consultation, and its duration. Regardless, the Court refrained from addressing these questions in its judgment due to its judicial caution. They are essential, given the importance of human rights in the international environmental regime.

8.4 People and Environmental Principles

Judicial caution has not been to EIAs alone. Opportunities have been lost to draw connections between people and two environmental principles that have been raised in disputes: the precautionary principle and the principle of intergenerational equity.

8.5 Conclusion

There have not been many environmental disputes to appear before the Court and some key human-focused ones have been discontinued (Section 8.1). While opportunities have been impeded by counterclaim requirements (Section 8.2), other prospects to develop jurisprudence on individuals’ rights in the environmental context have been noted, particularly regarding the scope and details of EIAs (Section 8.3). The Court has also had opportunities to create linkages between these rights and the principles of precaution and of intergenerational equity in its reasoning (Section 8.4). In brief, the development of international environmental law to the benefit of human beings has been limited before the Court.

In the context of the climate crisis, the judicialisation of environmental disputes will only continue to surge. Given the increasing recognition of the connections between the environment and the human experience, the human–environment nexus also continues to grow in the judicial context. In light of this, judicial caution might be difficult for the Court to sustain. A stronger acknowledgement of the relevance of individuals in environmental disputes, along with efforts to balance the interests of individuals and states in this context, would enable the Court to more effectively address global environmental challenges with no end in sight.

Two key sources of international law are treaties and customary international law.Footnote ² At their heart is state practice: treaties are agreements between states, while customary international law results from consistent state practice by which states consider themselves bound. However, the International Court of Justice (ICJ, the Court) has recognised in certain decisions that such sources may confer rights and benefits for individuals. This chapter examines such decisions and observes that the Court adopts a more favourable approach to individuals in this area of its jurisprudence than to other subject areas examined in Part II of this book. Such measures taken by the Court reflect an acknowledgement of the relevance of such disputes for individuals in the pursuit of a greater balance between individuals and states. This chapter will first address rights conferred on individuals in treaties (Section 9.1), before turning to customary law (Section 9.2). Section 9.3 concludes.

9.1 Individual Rights Conferred upon Individuals in Treaties

A treaty is defined by the Vienna Convention on the Law of Treaties (VCLT) as follows: ‘An international agreement concluded between States in written form and governed by international law, whether embodied in a single instrument or in two or more related instruments and whatever its particular designation.’Footnote ³

Under the traditional positivist doctrine, individuals were not regarded as having rights and duties under international law. No international legal source conferring rights and duties to a state was directly applicable to individuals. Rather, individuals exercised rights and duties originating exclusively from municipal law. Indeed, ‘[t]he pure positivist doctrine was at the same time also in principle a dualistic doctrine’.Footnote ⁴ There was a clear distinction between municipal law and international law – the former governing the rights and the obligations of individuals in all circumstances and the latter excluding the individual entirely and only pursuing rights and duties of states.Footnote ⁵ Thus, in order for international treaties to create rights or duties for individuals, contracting states had to create these provisions into their domestic law.Footnote ⁶

The role of the individual in the international legal system has evolved over time, and international treaty law has not been immune to this. The conferral of rights directly to individuals through treaties particularly expanded after the Second World War with the development of international human rights treaties, intended to confer such rights directly to them. However, the ICJ has interpreted relevant provisions of other international treaties, beyond the international human rights framework, as conferring rights on individuals.Footnote ⁷

The Court’s method of interpretation has varied from case to case. In the International Law Commission’s (ILC) initial debates on treaty interpretation, two main approaches were recognised.Footnote ⁸ The first was the textualist approach: a literal interpretation based on the ordinary meaning of the text, governed by Article 31 of the VCLT (‘shall be interpreted (…) in accordance with the ordinary meaning to be given to the terms of the treaty’). The second was the ‘intentionalist’ approach, focused on the intentions of the drafters. While not always the case, these intentions can possibly be ascertained by considering the context of the treaty (contextual method), its object and purpose (teleological method), or its travaux préparatoires (historical method). There is no clear hierarchy between these latter methods to determine the drafters’ intentions nor between the textualist and intentionalist approaches more broadly.Footnote ⁹

The Court has never explicitly referred to its interpretative methodology using these terms, nor has it cited the VCLT in the course of its interpretation. However, the broader dichotomy of textualist and intentionalist approaches can be loosely identified in the Court’s jurisprudence. For this reason, this chapter will analyse its treaty interpretation by reference to these two main approaches. I will argue that both the ‘textualist’ and ‘intentionalist’ approaches employed by the Court and its predecessor have allowed for the recognition of individuals’ rights.

I will first address the ‘intentionalist’ interpretation employed by the Permanent Court of International Justice (PCIJ) in Jurisdiction of the Court of Danzig and by the Court in the 2009 Dispute regarding Navigational and Related Rights (Costa Rica v. Nicaragua) case (Section 9.1.1). I will then examine the ‘textualist’ approach of the Court in a series of cases pertaining to the Vienna Convention on Consular Relations (Section 9.1.2).

9.2 Individuals as Beneficiaries of Customary Rights: A Mystifying Threshold

Beyond treaties, the Court has also conferred rights to individuals through the identification of customary international law. It has been required, in some cases, to identify customary international law, the existence of which would confer rights to private persons in specific contexts. In this section, it is observed that the high threshold for the identification of bilateral custom has seemingly eased over time, ultimately benefiting individuals.

Customary international law is the settled, extensive, and virtually uniform practice of states coupled with their belief (opinio juris) that such practice amounts to a legal obligation.Footnote ⁸⁰ While this implies a large number of states, it is also possible for bilateral rules binding just two states to be identified. This is referred to as local custom. In Land, Island and Maritime Frontier Dispute (El Salvador/Honduras: Nicaragua intervening), Honduras even argued that even a ‘trilateral local custom’ could have established an agreement regarding joint sovereignty between itself, El Salvador, and Nicaragua.Footnote ⁸¹ The Court has clearly explained the concept of local custom in the Right of Passage over Indian Territory (Portugal v. India) case:

The guidelines for the standard of proof required to identify local custom were established in the Asylum (Colombia/Peru) case, in which Peruvian national and political leader Victor Raúl Haya de la Torre had been accused of instigating a military rebellion and was granted diplomatic asylum in the Colombian Embassy in Peru. The Court was asked to decide, inter alia, whether Colombia was entitled to unilaterally decide whether the offence committed was a political offence or a common crime – a decision which would be binding on Peru, the territorial state. Colombia argued that it was entitled to do so, and such a decision was binding on Peru due to an existing local custom recognised by Latin American states.Footnote ⁸³ In response, the Court clarified the standard of proof:

In this case, the Court deemed that Colombia had not effectively proven that these conditions had been fulfilled. With regards to the requirement of constant and uniform usage practised by the relevant states, the Court noted that the evidence presented by Colombia ‘disclose[d] so much uncertainty and contradiction, so much fluctuation and discrepancy (…)’.Footnote ⁸⁵ The inconsistency made it impossible to discern any constant and uniform usage.Footnote ⁸⁶ Furthermore, this case placed special emphasis on the importance of opinio juris, which is seemingly stricter in a bilateral context.

While the requirements to establish international and local custom are the same and both find their roots in Article 38 of the ICJ Statute, the standards of proof in order to bilaterally bind two states appear to be more rigorous. General customary international law is a more flexible law-making approach as it considers an undetermined number of states’ behaviour reflecting the ‘majority holding’ with regard to a particular practice. On the other hand, local (bilateral) custom only involves two states and therefore depends on the particular activity of one state being accepted by the other. It requires the unequivocal acceptance of the two parties in order to take shape. The keystone principle of consent thus manifests itself more starkly in the context of local (bilateral) custom than with respect to general customary international law. One would therefore presume that local custom is indeed more difficult to establish.

However, in the Right of Passage over Indian Territory (Portugal v. India) case one decade later, the Court was satisfied that the conditions described in the Asylum case had been met. In this case, the Court had to ascertain the existence of a local custom between India and Portugal with regard to a right of passage of private persons, civil officials, and goods. Noting that the passage of private persons and civil officials was clearly defined and agreed upon by both parties, it found a ‘constant and uniform practice allowing free passage between Daman and the enclaves’ which had ‘continued over a period extending beyond a century and a quarter unaffected by the change of regime in respect of the intervening territory which occurred when India became independent’.Footnote ⁸⁷ This practice had therefore given rise to a right and a correlative obligation.Footnote ⁸⁸ No further explanation was given with respect to its reasoning.

Similarly, the Court’s approach to identifying custom relevant to individuals’ rights in the aforementioned Navigational and Related Rights case indicates a progressive relaxation to the benefit of individuals. Beyond interpreting the 1858 Treaty of Limits, as analysed earlier, it was also requested by Costa Rica to determine whether Costa Rica’s inhabitants had a customary right to subsistence fishing in the San Juan river.Footnote ⁸⁹ The Court found that the riparian communities in Costa Rica had a customary right to subsistence fishing from the San Juan River. If we apply the criteria established in Asylum (Colombia v. Peru) and in Right of Passage over Indian Territory (Portugal v. India), there was no evidence that Costa Rica’s right to subsistence fishing had become binding on Nicaragua,Footnote ⁹⁰ as Costa Rica never claimed before the case that it even had such a right.Footnote ⁹¹ Furthermore, there was no constant and uniform usage practised by states, as the Court itself stated that ‘the practice, by its very nature, especially given the remoteness of the area and the small, thinly spread population, is not likely to be documented in any formal way in any official record’.Footnote ⁹² Thus, there was no documented practice attesting a customary fishing right.Footnote ⁹³

The Court, in its reasoning, explained that Nicaragua never protested the Costa Ricans fishing in the area.Footnote ⁹⁴ Is acquiescence, however, enough to establish the opinio juris of the parties? There is no unanimous answer in international law, although the ILC’s 2018 Draft conclusions on identification of customary international law state in Article 10(3) that ‘[f]ailure to react over time to a practice may serve as evidence of acceptance as law (opinio juris), provided that states were in a position to react and the circumstances called for some reaction’.Footnote ⁹⁵ The commentary to the draft conclusions specifies that two conditions must be met:

In the present case, as the Court itself recognised the remoteness of the area and its small population,Footnote ⁹⁷ the absence of protest could have simply derived from the lack of practical significance of the very small amount of fishing involved. There is no evidence that Nicaragua did not protest because it felt a sense of legal obligation that the riparian Costa Ricans had the right to fish.Footnote ⁹⁸ It would therefore appear that the requirement for the establishment of local custom is not as high as would be expected. In this case, the Court demonstrated exceptional flexibility with regard to these criteria in order to uphold the fishing rights of the riparian communities.

To conclude, it is difficult to ascertain what the necessary standard of proof is for establishing local custom. In the sparse case law, progression can be noted by the Court from a high threshold to a more flexible approach granting individuals rights. As with the assessment with respect to treaty interpretation described earlier, the Court has seemingly been more receptive to identifying customary rights to the benefit of individuals in time – although few cases serve to establish a solidified pattern.

Another related indicator of this is the Court’s acknowledgment of individuals’ behaviour as contributing to the formation of custom in Navigational and Related Rights. Customary law (international or local) is traditionally established by actions of states.Footnote ⁹⁹ However, in the specific case, it is the practice of a local community of Costa Rican riparians – the affected individuals – that is being discussed. Indeed, the ILC explains that ‘the acts of private individuals may sometimes be relevant to the formation or expression of rules of customary international law, but only to the extent that States have endorsed or reacted to them’.Footnote ¹⁰⁰ It would therefore appear that in the present case, the Court recognised the existence of customary international law through the acts of local populations reflecting Costa Rica’s effective control upon them. This draws a parallel to the conclusions drawn in Chapter 7 on territorial disputes: individuals may contribute to the formation of a legal title justifying the state’s ownership of a piece of land, if the individuals’ actions prove the state’s sovereignty.

9.3 Conclusion

To conclude this chapter, the approaches identified by the Court when identifying sources of international law have allowed for the rights of populations to be acknowledged in the Court’s jurisprudence and in the international legal system at large. The Court’s findings have contributed to the undisputed fact that the VCCR confers individual rights, for instance, and its predecessor arguably advanced individuals’ rights in Danzig. Its evolutionary interpretation of the word ‘commerce’ has also benefited a large scope of individuals. Furthermore, its recognition of the constant and uniform usage practised by Costa Rican riparians as amounting to custom was equally beneficial to individuals, as well as other conclusions drawn despite questions raised as to its reasoning.

The Court’s recognition of individuals’ rights conferred in treaties and customary law has therefore been favourable to individuals compared to other areas of its jurisprudence examined in the previous chapters in Part II of this study. Indeed, more rigid and detailed rules and processes governing substantive areas such as territorial (Chapter 7) or maritime disputes (Chapter 6) have been developed through years of jurisprudence, offering less discretion. This is possibly because the interpretation of treaties and the identification of custom are two of the most complex and mysterious tasks in international law.

Indeed, the Court has often been criticised for the mystery it generates when tasked with identifying sources of international law. Scholars have painstakingly tried to understand the Court’s reasoning and method in its identification of custom – referred to by one author as ‘secret custom’.Footnote ¹⁰¹ Similarly, scholars have noted the politics and challenges in treaty identification by the Court.Footnote ¹⁰² The Court’s ambiguous approach to the identification and interpretation of international legal sources is therefore commonplace and not necessarily due to a particular desire to address individuals’ concerns. Regardless of its intentions, this chapter shed light on the opportunities the Court has largely seized to conduct treaty interpretation and to identify customary law in a way favourable to affected individuals.

Part II of this monograph explored the extent to which individuals are considered in the legal reasoning of the Court. It did so by identifying contexts in which individuals are not at the centre of the dispute (as was the case in Part I) but would be affected by it, such as maritime disputes (Chapter 6), territorial disputes (Chapter 7), environmental disputes (Chapter 8), and the interpretations of treaties and identification of custom (Chapter 9).

It was observed that individuals are rarely considered in the Court’s legal reasoning in such disputes. An exception lies in the interpretation of treaties and the identification of customary law, where the Court has, albeit sometimes ambiguously, contributed to the development of individuals’ rights.

Generally, such consideration for individuals rests upon certain identified conditions: the Court must not overstep its assignment, contravene the principle of stability, or counter legal formalism.

The Court would not consider individuals proprio motu if there were no mention of them in state litigants’ pleadings and limits itself to the evidence provided by the litigantsFootnote ¹ or respecting their requests in their Special Agreements.Footnote ² They therefore set the boundaries for the pending judgment. While the Court may reject the litigants’ submissions if it wishes,Footnote ³ it may not innovate outside of their submissions.Footnote ⁴ However, it was seen in many instances in Part II that state litigants often do raise concerns for their populations in their pleadings.

Reticence to contravene the principle of stability or to counter formalism largely explains the Court’s approach in maritime (Chapter 6) and territorial boundary disputes (Chapter 7).Footnote ⁵ In the former chapter, it explains why the Court has rarely considered relevant circumstances to adjust a provisional line and has yet to consider historic fishing rights.Footnote ⁶ In the latter chapter, it is why boundary treaties are of particular value to the CourtFootnote ⁷ and why the uti possidetis principle takes precedence over the principle of self-determination.Footnote ⁸

A fishing practice characterised by its historical longevity and therefore considered to be stable should form part of the Court’s application of the principle of stability. This reframing would allow for historic fishing rights to be upheld and, therefore, for the needs of local populations to be considered. As for the Court’s adherence to formalism, it is still balanced by the principle of equity. The latter’s existence acknowledges that the law is not always fair and that other relevant factors should be considered where they may allow for justice. In maritime boundary disputes, it was argued that equity does not encourage extra-legality and can play a greater role when adjusting a provisional line. In territorial boundary disputes, equity could also play a prominent role, extending beyond its traditional function as the last resort in the absence of other titles. The application of equity is both precise and appropriate, remaining true to its original conception and purpose. In the words of Professor Stephen Humphreys,

In both contexts of territorial and maritime disputes, judges are thus encouraged to assess whether the outcome aligns with the core demands of justice and to make the necessary adjustments if it does not. As argued in the introduction of this study, justice serves as a benchmark for evaluating judicial outcomes, representing a balance between states and individuals within the framework of social idealism. David D. Caron and Christian Tomuschat have argued that insisting on justice ‘makes good sense in situations where the legal position, as inherited from the past, does not respond to the needs of times that have changed’, but that the approach to change should be ‘peaceful (…) that seeks to adapt a traditional legal framework to a present which demands a greater share of equity and justice’.Footnote ¹⁰ Such proposals have been made in the relevant chapters.

Beyond non ultra petita, stability, and formalism, one final reason for the Court’s reticence is its caution to develop international law. In concluding Part II, I reflect that while the Court does not have a legislative function, it develops the law nonetheless through the clarifications and interpretations. It should not shy away from doing so, particularly where individuals are involved.

While the UN General Assembly proclaimed in its Resolution 171(II)A of 1947 that ‘it is (…) of paramount importance that the Court should be utilised to the greatest practicable extent in the progressive development of international law’,Footnote ¹¹ neither the UN Charter nor the Court’s Statute attributes it with a legislative function. Nor do the travaux préparatoires of the Statute indicate that the Court was intended to be a lawmaker. Conversely, Article 38 indicates that its function is ‘to decide in accordance with international law’, possibly implying pre-existing law.Footnote ¹² The Court has supported this reading in its jurisprudence, stating, in the 1974 Fisheries Jurisdiction case, ‘In the circumstances, the Court, as a court of law, cannot render judgment sub specie legis ferendae, or anticipate the law before the legislator has laid it down.’Footnote ¹³ It also clearly stated in the Nuclear Weapons advisory opinion that

However, developing the law can be borne out of various tasks. The Court has identified the legal status of already-existing law.Footnote ¹⁵ It has also clarified the meaning or provided interpretations.Footnote ¹⁶ Its design of criteria for ascertaining customary law and identifying treaties or recognising obligations erga omnes are only some examplesFootnote ¹⁷ – as well as those apparent in Chapter 9 where the Court interpreted treaties and identified custom to the benefit of individuals. While none of these tasks involve legislating stricto sensu, the outcome has been the development of international law. As Hernández argues,

The Court’s clarifications and interpretations of law constitute a form of legal development, even though judges have characterised this process as incidental rather than intentional.Footnote ¹⁹

This developing function, while not formally prescribed, is inevitable for two reasons. First, many judgments will be applicable to the wider network of states. This is obvious in advisory opinions often stemming from requests by the UN General Assembly. But even in contentious disputes, matters under consideration will likely be relevant to other prospective future state litigants. The Court’s interpretation of multilateral treaties in bilateral disputes will impact all state parties to those treaties.Footnote ²⁰ Moreover, both the Court and its predecessor have, at times, addressed or issued instructions to other states in their judgments on contentious disputes.Footnote ²¹

Second, the gap created in the infrastructure of the international legal order positions the Court as a (reluctant) legislator. In the absence of a ‘world government’ or ‘world parliament’ producing binding law, and given the slow establishment of custom and of widely accepted multilateral treaties capable of developing international law, the World Court is looked at to perform somewhat of a legislative function.Footnote ²² These two circumstances contribute to the Court’s incidental development of international law.

To conclude, to legislate outright and to demonstrate undue zeal and provide an authoritative narrative on broader issues may weaken the Court, as opposed to strengthen it, by causing states to take their distance if they perceive that the Court is taking excessive liberties within its assigned duties.Footnote ²³ However, this is not what has been proposed in Part II, where, in numerous instances, state litigants have sought to draw the Court’s attention to the relevance of their populations. Accommodating such concerns would involve an adjustment in the roles of stability and formalism within the judicial function. Additionally, while the Court does not have a formal law-making function, it develops international law nonetheless through its interpretations and clarifications and should not hesitate to do so when clarification is sought by state litigants on matters relating to the affected individuals in such disputes.

This study synthesised the broad scope of contexts in which individuals interact with the International Court of Justice (ICJ, the Court). Its approach was binary, exploring this relationship in terms of the Court’s procedural mechanisms, on the one hand, and its legal reasoning and decision-making, on the other hand.

First, this study sought to assess the extent to which individuals are integrated in the procedural law of the Court (Part I). Looking beyond disputes on the violation of a multilateral human rights treaty or customary human rights obligations, it identified thematic areas where individuals are still at the heart of the dispute: diplomatic protection, advisory proceedings, and those reviewing the decisions of certain administrative tribunals. Rather than examining how the Court has developed the law in such disputes, it noted the ways in which individuals are starkly absent from proceedings, analysing the underlying reasons for this and exploring how they could be further integrated.

Second, the study explored the extent to which individuals are considered in decisions of the Court (Part II). It again looked beyond disputes on the violation of a multilateral human rights treaty or customary human rights obligations, where individuals are inherently considered. Instead, it turned to areas greatly dealt with by the Court where certain human dimensions may potentially be overlooked as they are not the principal focus of the dispute. It therefore focused on territorial, maritime, or environmental disputes, as well as disputes around treaty interpretation or custom identification. It was observed that states parties often raise concerns to the Court about the relevance of their populations. It was therefore discussed why, despite this, the Court does not factor in such considerations in its decision-making.

The conclusions reached may come as no surprise to connaisseurs of the Court: individuals are both integrated in the procedural law of the Court and considered in its decisions to a minor extent. While granting legal standing to individuals was considered during the establishment of the Court’s predecessor, it was denied for fear of threatening state sovereignty (Chapter 1). This, however, did not lessen the types of disputes that would arrive at the Court’s docket with a clear connection to one or several individuals. Diplomatic protection proceedings, for example, were the historical avenue enabling the protection of injured individuals (Chapter 2). Yet, the fiction characterising this practice would result in the absence of the individual in proceedings, despite his or her centrality to the dispute. A similar lack of initiative can be noted in advisory proceedings, where questions of interest to communities of individuals are often posed to the Court (Chapter 3). Despite the procedural avenues being available to the Court, I have argued that they have not been exercised by the latter. Conversely, it made attempts in advisory proceedings reviewing the decisions of certain administrative tribunals (Chapter 4), adjusting its procedural mechanisms to satisfy the principle of the equality of the parties. Yet, it was unable to go so far as to allow individuals to stand as equal parties to international organisations, or to use procedural discretion in other ways to more convincingly equalise the parties. This contributed to the relevant administrative tribunals removing their jurisdiction from the Court.

The conclusion is no different when examining how the Court considers individuals in its decisions (Part II). While state parties have brought arguments forward that coastal fishing populations should be factored in to determine if tacit agreements existed between parties on a maritime boundary, as a relevant circumstance in maritime boundary delimitation or as historic fishing rights, the Court has perceived such arguments as ‘non-legal’ and has prioritised the stability of boundaries (Chapter 6). The threshold for individuals to be considered as a relevant circumstance is exceptionally high and has only been met in one instance. In territorial disputes, the Court has only considered individuals’ behaviour as evidence of the Court’s sovereignty as opposed to a reflection of their own desires (Chapter 7). In both instances, equity, which would allow for the greater consideration of individuals, is an afterthought as opposed to an element of the legal reasoning. In environmental disputes, opportunities to strengthen the nexus between human rights and environmental matters have also been missed, despite promising disputes being raised by states, direct questions being asked about the relevance of local populations, and relevant principles being invoked (Chapter 8). Only in the realm of the interpretation of treaties and the identification of customary law have initiatives been uniquely taken by the Court to recognise individuals’ rights (Chapter 9).

What these procedural and substantive instances examined in this book show is that the relationship between the individual and the ICJ is not a distant or improbable subject of inquiry. On the contrary, each chapter has demonstrated the clear relevance of individuals in the matters under examination. Each chapter has also illustrated the attempts made by individuals, state litigants, or both for greater inclusion of individuals both in law and practice. Such attempts remain evident in new cases filed and requests for advisory opinions at the time of writing.

The natural question that arises is why such attempts have remained largely unfulfilled. Why have efforts to integrate individuals procedurally and substantively been so unsuccessful? This study has identified and analysed the specific reasons behind the reluctance of both the Court and state litigants.

This overall reticent approach can be rooted in the historical decision to limit locus standi before the Court to states. Indeed, the absence of the individual’s locus standi has fostered a state-centred culture and mindset at the Peace Palace where emphasis is placed on states’ interests, both procedurally and in legal reasoning. It has also meant that they have limited opportunities to express their views and that consideration for them in judgments will be at the goodwill of both state litigants and the Court. Procedural and substantive law are difficult to separate and ‘react upon each other’ in every legal systemFootnote ² and, to an extent, explains why the findings of this study have been largely analogous whether discussing the individual in the law or the practice of the ICJ.

This reluctance manifests itself in a multitude of ways explored in this book – including how the Court occasionally perceives disputes where individuals are in focus. Rosenne refers to the Application of the Convention of 1902 Governing the Guardianship of Infants (Netherlands v. Sweden), where the Netherlands sued Sweden for allegedly violating the 1902 Convention on the guardianship of infants by placing a Dutch child living in Sweden under a Swedish regime of protecting upbringing.Footnote ³ He explains that the case was originally entitled Case concerning the Guardianship of an Infant in the Court’s General List, which emphasised the human being in the matter as opposed to implying that the case was a matter of ‘abstract treaty interpretation’.Footnote ⁴

A similar observation can be made in Jurisdictional Immunities of the State (Germany v. Italy: Greece intervening). Leading up to this case, Italian courts had entertained civil claims brought against Germany by victims of Nazi crimes seeking reparation. Germany seized the Court claiming that Italy had failed to respect its jurisdictional immunity. The Court sided with Germany, after assessing whether immunity was applicable to acts committed by the armed forces of a state in the course of conducting an armed conflict.Footnote ⁵ Judge Yusuf criticised that the real-life situation of the Nazis demanded an examination not of this question but of whether the refusal of Italian courts to grant jurisdictional immunity to Germany constituted an internationally wrongful act.Footnote ⁶ The emphasis was therefore on the link between the denial of immunity by the Italian courts, on the one hand, and the lack of reparations, on the other hand.Footnote ⁷ In his view, the Court’s focus was ‘too abstract and formalistic’ and best left ‘for academic papers and scholarly discussions’.Footnote ⁸ This might, in part, be influenced by the Court’s isolated character, as described by Philip Allott.Footnote ⁹

Therefore, while much has been done and can be celebrated at the Court in both its jurisprudence and procedure, the main hindrance to any strengthening of the relationship between the individual and the Court lies in the willingness and creativity of state litigants and of the Court to navigate the contours crafted by Article 34(1) of the latter’s Statute both in law and in practice.

I have argued that this can be done. In law, both state litigants and the Court have the power to summon witnesses, and state litigants may also give relevant individuals a platform as a part of their delegations during oral proceedings. In practice, I have argued that while the Court may not be able to go beyond state litigants’ requests, it could make more of an effort to respond to such concerns when raised by states. I have challenged the Court’s concerns for stability by arguing that its perception of this concept can be more accommodating. I have argued that its concerns for formalism might harm its legitimacy more than uphold it.

This stems from a social idealist approach to international law, which pleads for a greater balance between states and individuals, and places more emphasis on the role of the individual in the international legal order. Through this lens, it is argued that the Court’s effectiveness and legitimacy are compromised through its current approach. The Court’s effectiveness – the measurement of the degree to which a court accomplishes its specific objective aim – depends on its ability to adopt an all-encompassing approach to ensuring peace. It also depends on its ability to incorporate the UN Charter’s people-focused preamble into this approach, as the principal judicial organ of the UN. Finally, it must confer legitimacy to the UN as a judicial custodian. This legitimacy stems from the fairness of its process and the just quality of its decisions. From a social idealist approach, both are at stake when examining the Court’s relationship with individuals.

Admittedly, any assessment of legitimacy is a slippery slope and frustratingly intangible.Footnote ¹⁰ The same holds true for effectiveness and for yardsticks such as justice, fairness, and democracy. Such assessments are therefore inevitably subjective, especially when informed by an international legal theory. The delicate tensions between the state and the individual, stability and development of international law, law and justice, lex lata and lex ferenda, apology and utopia, and the role that the Court plays amidst them all, has shadowed me throughout the writing of this study and will, in all probability, remain a part of my thinking beyond,Footnote ¹¹ for it is certainly not enough to only understand the functioning of the World Court in these respects. Rather, we must commit ourselves to understanding these debates in the wider context of international law. The scholarly efforts of this study have been put forth in this spirit.