In the run up to the April 10th 2019 referendum regarding the Belize-Guatemala Territorial Dispute, it has become evident that the discussion needs to start to separate between facts and opinions. To that end, this article marks the first installment of a fact-check series for Res Publica 360.

Among the many things discussed about the International Court of Justice (ICJ) is the question as to whether or not the Court has a tendency to make biased rulings. And, as the title of this article indicates, the answer to that question is “yes”. However, one has to ask what is that bias? 

When one looks at not only ICJ case law, but also legal papers on the similar matter, one would observe that the ICJ’s case law demonstrates a Court that is highly biased in favor of preserving Boundary Treaties.

As was explained by Alberto Alvarez-Jimenez in his article “Boundary Agreements in the International Court of Justice’s Case Law, 2000–2010″ in the The European Journal of International Law, this was seen in several cases. One such case is the much discussed Nigeria v Cameroon case. Alvarez-Jimenez wrote:

“In its attempt to claim sovereignty over the peninsula, Nigeria argued that the agreement should be disregarded because it had to be approved by the German parliament according to the German law of the time, an approval that did not take place. The Court did not declare so. Instead of delving into German law to assess whether the agreement was valid, the Court looked at the parties’ external behaviour regarding it.” (Alvarez-Jimenez, 2012, p. 15).

Another case that is worth underscoring is that by Nicaragua v Colombia. Nicaragua argued that the 1928 Treaty was invalid because it was in “violation of Nicaragua’s Constitution in force at the time.” The Court, however, once again, manifested its bias and found the 1928 Treaty to be valid.

Alvarez-Jimenez (2012, p. 17), explained their reasoning as follows:

“The Court assessed whether Nicaragua had entered a specific reservation regarding the 1928 Treaty in the Pact, which was invoked as the source of the Court’s jurisdiction, and found that no such reservation existed. Nor did Nicaragua consider the Treaty invalid in 1948 or even decades later. In fact, Nicaragua had tacitly accepted the validity of the Treaty in 1969. The Court then concluded that the Treaty was in force in 1948, and that the issue of sovereignty over the islands in question had been settled by the 1928 Treaty.”

Bryan T. Sumer (2004, p. 4), in his paper “TERRITORIAL DISPUTES AT THE INTERNATIONAL COURT OF JUSTICE” similarly noted the strong preference demonstrated by the Court for preserving Boundary Treaties. He explained this point as follows:

“As compared to the other bases for territorial claims, the treaty justification is more legal in nature—that is, it is less emotionally persuasive than an historical claim might be. Nevertheless, claims based on treaty law are PARTICULARLY PERSUASIVE at the ICJ because Article 38 of the ICJ Statute obligates the court to consider treaties. Moreover, through treaties parties agree to relinquish their historical or other claims to the property subject to the treaty. Thus, it is no surprise that treaties (unless defective) are binding on the parties that have RATIFIED them.” (Emphasis added).

Within the scope of this “bias”, the concluding remarks by Alvarez-Jimenez (2012, p. 20) are clear:

“The Court’s case law of the first decade of the 21st century shows that the Court has been somewhat flexible in endorsing the validity of boundary agreements once it has declared them. States that have subsequently invoked the nullity of boundary treaties or settlements have not found a receptive Court to uphold such claims (Cameroon v. Nigeria, Nicaragua v. Colombia, and Qatar v. Bahrain). While room for declarations of nullity certainly exists, it can be regarded as narrow, absent very compelling reasons. The threshold is high, and states are well advised when raising such a claim to expect success only exceptionally in boundary disputes”

Regardless of the final position to be taken on this matter by Belizean voters, it is important that the facts regarding the Court’s bias in favor of preserving the validity of Boundary Treaties be made clear.

Note: In light of the above, it would be useful to also review the Court’s “bias” in how it approached the Libya v Chad case, an overview of which can be read found on the ICJ’s website HERE.