On 18 June 2018, Venezuela notified the International Court of Justice that it intends not to participate in the proceedings before the Court in the case over the Essequibo region brought by Guyana (for an excellent analysis of Guyana’s application and the complex historical and procedural background on this blog see here). Venezuela’s move is reminiscent of a long series of cases before the PCIJ and then the ICJ in which the defendant State chose not to appear. At its peak in a period in the 1970/80s this phenomenon had almost become the norm rather than the exception, a situation widely seen as symptomatic of a major crisis of confidence in the Court. The Institut de Droit International noted with concern ‘that the absence of a party is such as to hinder the regular conduct of the proceedings, and may affect the good administration of justice’. This short contribution will assess whether similar concerns are warranted now that the Court will once again be confronted with this peculiar procedural situation. It will first briefly evaluate to what extent Venezuela’s announcement may be part of a re-emerging trend of non-participation. It will then consider how Venezuela’s decision will legally impact the proceedings, highlight key challenges for the conduct of the proceedings, and suggest how and to what extent the Court can address these.
Back to the 1970s?
Since the US ceased participating in the Nicaragua case following the decision on jurisdiction more than thirty years ago, there have only been rare incidents of (temporary) non-participation in contentious proceedings before the ICJ (Bahrain was not represented when the second judgment on jurisdiction and admissibility in Maritime Delimitation and Territorial Questions was delivered, nor at a later meeting of the Court when time limits for submissions at the next stage were fixed; note also in the different context of advisory proceedings Israel’s refusal to take part in the Wall case). Non-participation thus seemed to have gone out of fashion – France, for example, had failed to appear in the Nuclear Tests cases in 1973/74 but chose to participate when New Zealand requested the Court to resume that case in 1995.
Recently, however, Pakistan who had submitted a counter-memorial did not appear in the oral hearings in the Marshall Islands case. Croatia only partially participated in the ad hoc arbitration with Slovenia. And Venezuela’s announcement comes only relatively shortly after China and Russia did not take part in major UNCLOS proceedings (the South China Sea and the Artic Sunrise cases). Even among these States, however, participation at present seems to remain the norm: Russia, for example, is currently participating in cases brought by Ukraine, both before the ICJ and in an UNCLOS Annex VII arbitration.
It would thus be premature to see Venezuela’s announcement as a sign for a broader trend, or as indicating a general lack of confidence in inter-State adjudication. Venezuela’s move should rather be viewed as an expression of a structural pattern in its own long-standing critical stance towards international adjudication and international organisations more generally – in line with its withdrawals from the ICSID convention and the ACHR, as well as the recently initiated withdrawal process from the OAS. The political thrust of this decision is thus relatively clear. In terms of its legal consequences, however, the announcement does not seem to cause major obstacles for the proceedings.
Legal consequences of the announced non-participation
Absence of the defendant has been regulated by the Statutes of the PCIJ and ICJ, and both Courts have had ample opportunity to develop a solid body of jurisprudence on its legal consequences.
First, for Guyana’s application Art 53(1) of the ICJ Statute clarifies that Venezuela cannot prevent the proceedings from taking place: ‘Whenever one of the parties does not appear before the Court, or fails to defend its case, the other party may call upon the Court to decide in favour of its claim.’ Thus, so long as Guyana nevertheless wants the case to move on, Venezuela’s failure to take part does not act as an obstacle to the proceedings, as the Court regularly held in the past (see, e.g., Nuclear Tests, para 11). On the other hand, this does not mean that the Court will automatically find in favour of Guyana’s application, simply because its claims are not contested by the other side in the courtroom. Instead, Art 53(2) of the Statute requires:
‘The Court must, before doing so, satisfy itself, not only that it has jurisdiction in accordance with Articles 36 and 37, but also that the claim is well founded in fact and law.’
There is thus no judgment by default as in many domestic jurisdictions and, for example, at the Court of Justice of the European Union (Art 41 of the CJEU Statute).
Second, Venezuela is not bound by its own announcement in the sense that it would have to abstain from taking part. On the contrary, it is free to decide at any stage to start participating (Nicaragua, para 284). To ensure their equal treatment, the Court will invite both parties to take procedural steps such as appointing agent and counsel, filing written pleadings, or commenting on specific issues. And, indeed, should Venezuela stick to its announcement and not perform any act of formal participation, this would be perfectly lawful. Although this is not clearly spelt out, it is implicit in Art 53 of the Statute that there is no obligation for States to participate in proceedings before the ICJ. This position is confirmed by the absence of a finding of illegality against non-participation in prior cases before the Court and its predecessor.
Venezuela does, however, have all legal obligations incumbent upon parties to disputes before the Court. It became a party to the case in the moment when Guyana filed the application under Art 40 of the ICJ Statute. This status will not be affected by its non-participation, as Art 53 of the Statute implies when speaking of the ‘parties’ (c.f. Fisheries Jurisdiction, para 17). In particular, Venezuela will thus have the obligation to abide by the Court’s decisions (Arts 59, 60 of the Statute and Art 94(1) UN Charter).
Procedural challenges for the Court, possible responses – and their limits
As much as Venezuela’s non-participation does not prevent the case from moving on, it raises serious practical and structural difficulties for conducting the proceedings. Venezuela can be expected not to submit pleadings, nor to nominate agents and counsel to plead or answer questions in the hearings, nor to submit supporting evidence or challenge evidence put forward by Guyana. This means that it will not contribute to ascertaining the relevant facts in any of the formal ways. It also implies that the Court will not formally receive Venezuela’s position and arguments on the complex issues the case raises. Certainly, from Venezuela’s perspective the risk of not being able to present the Court with its own version of the case may simply be the price to pay for this procedural strategy. But for the conduct of the proceedings, the lack of participation causes significant structural problems: First, the parties to inter-State proceedings carry the main burden of presenting the required evidence. Second, the discourse between both parties and the Court is a characteristic feature of contentious proceedings before the ICJ. The late Sir Gerald Fitzmaurice thus feared that in cases of non-appearance ‘the core [of the proceedings] is washed away’ ((1980) 51 BYIL 89 at 115).
To some extent, the Court can practically alleviate these concerns if it considers Venezuela’s informal communications or public statements on its position. Indeed, Venezuela has already made known aspects of its position, particularly its contestation of the Court’s jurisdiction. And like most non-appearing defendant States in prior cases, Venezuela might continue to comment publicly on aspects of the case, for example through a position paper published by the government (as China did in parallel to the South China Sea arbitration). Such statements could, for example, be addressed when the Court assesses its jurisdiction. Normally the Court would rule on preliminary objections to its jurisdiction to the extent that these are raised by the parties. Doing so here would mean automatically accepting Guyana’s submission on this point, simply because Venezuela will not formally raise preliminary objections. This would sit uneasy with the Court’s duty to ‘satisfy itself (…) that it has jurisdiction’. Following its practice in like cases (see e.g. Aegean Sea, paras 45-47), the Court will therefore discuss preliminary objections Venezuela has raised extra-procedurally. Although these objections do not conform with the formal procedure for raising preliminary objections to jurisdiction (Art 79 of the Rules of Court), it is within the Court’s discretion to take them into account.
Some limitations nevertheless remain. It is worth highlighting that extra-procedural statements cannot adequately replace detailed written and oral pleadings. Also, to maintain procedural fairness and the equal treatment of both parties, there are limits to the exercise of its discretion in considering informal communications: the arbitral tribunal in the Artic Sunrise case, for example, refused to consider a Russian position paper published six months after the hearings and only shortly before the scheduled delivery of the judgment (para 68) – to do so would have caused undue delay to the detriment of the applicant State (the Netherlands).
Moreover, the Court will not necessarily restrict itself to discussing what Venezuela raises extra-procedurally: it could even consider proprio motu objections Venezuela might have raised (as the Court did in US Diplomatic and Consular Staff in Tehran, para 39). This might, however, create tensions with the Court’s perceived neutrality and procedural fairness: Guyana as the applicant must not be disadvantaged through Venezuela’s behaviour and must at least be given the opportunity to comment on all objections the Court considers. How far the Court must and may go in putting itself into the shoes of the defendant is therefore a delicate matter of balancing its duty under Art 53(2) of the Statute with the equality of the parties.
Along similar lines, the Court can also be expected to take a more active posture for establishing facts and seeking evidence. The Court must satisfy itself ‘that the claim is well-founded in fact’. Lacking evidence produced by Venezuela, the Court will have to rely more heavily on alternative forms of evidence. In past cases of non-appearance in inter-State adjudication, independent expert opinions have often played an important role in ascertaining contested facts (see the order in Corfu Channel, where Albania ceased participating in the compensation phase following the merits judgment, and recently the South China Sea arbitration before an UNCLOS Annex VII tribunal). To the extent possible, the Court can require additional evidence and memoranda from Guyana on issues left unclear. Finally, in this 21st century case, publicly available information could play an even more important role than in the past. Generally, the Court’s flexible procedure for considering evidence will be a vital tool to overcome some of the practical difficulties raised by Venezuela’s absence. Nevertheless, here as well some limits persist. In particular, certain pieces of evidence in the sphere of the defendant will remain unavailable to the Court – Venezuela could, for example, prevent evidence being taken for which access to its territory would be required (such as site visits by independent experts).
Venezuela’s underlying hostile attitude towards inter-State adjudication, in particular towards the adjudication of this case, is unlikely to change over the course of the proceedings. Nevertheless, for all States’ perception of the proceedings’ integrity it remains crucial that the Court succeeds in safeguarding the rights of both parties by striking the best possible balance between the effective conduct of the proceedings and the procedural fairness to both sides: the ways in which the Court addresses the new case of non-participation might go some way to determining whether or not this phenomenon remains primarily a tactic of the past.