LEAD COUNSEL AND ADVOCATE FOR MYANMAR
FIRST PRELIMINARY OBJECTION
Madam President, Mr Vice-President, Members of the Court,
1. It is an honour for me to appear before you again.
2. At the outset, I must express my sadness at the passing in May last year of Judge James Crawford. So many of today’s international lawyers were personally taught, inspired and encouraged by him. I have the privilege to be one of them.
3. I turn to the first preliminary objection. Myanmar contends that the Court lacks jurisdiction, or that the application is inadmissible because the real applicant in these proceedings is the Organization of Islamic Cooperation, the “OIC”. Article 34, paragraph 1, of the Statute, provides that only States may be parties in cases before the Court. The OIC is an international organization, not a State.
4. This preliminary objection raises one main question of fact, and one main question of law.
5. The question of fact is this: Is The Gambia bringing this case on behalf of the OIC, such that the OIC is in fact the real applicant?
6. And the question of law is this: Can a State bring a case before this Court on behalf of a third party which could not bring the case itself in its own name?
The question of fact
Madam President, Members of the Court,
7. I begin with the question of fact.
8. The written pleadings set out the contents of many documents giving details of dealings between The Gambia and the OIC and its other Member States leading up to these proceedings.
9. These documents show that in May 2018, the OIC’s Council of Foreign Ministers, one of its main organs, established an Ad Hoc Committee, and appointed The Gambia as its chair.1 I refer to this as the “Committee”.
10. In February 2019, this Committee adopted a plan of action that involved bringing a case before this Court against Myanmar under the Genocide Convention.2
11. The following month, the Council of Foreign Ministers adopted a formal resolution endorsing the Committee’s plan of action.3
12. Then, in May 2019, the matter was considered at a conference of the Islamic Summit, 4 the supreme authority of the OIC. 5 In its Final Communiqué, 6 the Islamic Summit—and I quote—
… urged upon the ad hoc Ministerial Committee led by the Gambia to take immediate measures to launch the case at the International Court of Justice on behalf of the OIC. 7
13. Three key points are made here. First, that the bringing of this case was called for by the Islamic Summit. Secondly, that this case was to be brought by the OIC Committee, The Gambia being mentioned only as chair of that Committee. Thirdly, that the proceedings were to be brought on behalf of the OIC.
14. Then, on 4 July 2019, just over a month later, according to a press release of the Office of the President of The Gambia,8 The Gambia’s Attorney General and Minister of Justice presented to the Cabinet “a paper on the OIC proposal for The Gambia to lead the international legal action against Myanmar at the International Court of Justice” . The Cabinet approved that OIC proposal.
15. Three points emerge from this. First, The Gambia’s decision to “lead” this legal action was pursuant to a direct proposal of the OIC. Secondly, The Gambia was to be “leading” this action, as opposed to taking this action alone and in its own right. Thirdly, The Gambia accepted the OIC proposal over a month after the Islamic Summit had already decided that this case should be brought by the OIC Committee on behalf of the OIC.
16. Then, on 11 November 2019, the day that the application instituting proceedings was filed, the legal representatives of The Gambia issued a press release9 that was disseminated in six languages.10 Its opening sentence states that The Gambia is “acting on behalf of the 57 Member States of the [OIC]”. It subsequently states—and I quote—
The OIC appointed The Gambia, an OIC member, to bring the case on its behalf.
17. This wording must surely have been carefully chosen and approved by the client.
18. We thus have express statements both from the supreme authority of the OIC and by The Gambia’s legal representatives that these proceedings are brought on behalf of the OIC. Other documents contain similar statements.
19. Statements to the effect that this case is brought by the OIC, or by the OIC Committee, have been made in a further resolution of the OIC Council of Foreign Ministers in 2020, 11 and by Bangladesh’s Foreign Minister12 and Foreign Ministry,13 the Prime Minister of Malaysia,14 the OIC Journal,15 an OIC press release,16 the OIC Twitter account,17 and the NGO, Fortify Rights.18
20. Statements that the OIC decided to bring this case have been made in the OIC Journal19 and an OIC press release,20 and by the Foreign Ministry of Bangladesh,21 the Foreign Minister of Malaysia,22 and the UN Special rapporteur on the situation of human rights in Myanmar.23
21. Statements that The Gambia brings these proceedings on behalf of the OIC have been made in a resolution of the OIC Council of Foreign Ministers,24 and by the Office of the President of The Gambia,25 the Vice-President of The Gambia in a statement to the UN General Assembly,26 and the respective Foreign Ministries of Bangladesh,27 Malaysia,28 and the Maldives,29 as well as in media reports in numerous countries,30 and on the websites of various other Governments and NGOs, as well as that of the United Nations.31
22. Statements that The Gambia has been “tasked” or “chosen” by the OIC to bring these proceedings have been made by the Office of the President of The Gambia,32 an OIC press release,33 and in the media.34
23. Statements that The Gambia, in bringing these proceedings, is acting in its capacity as chair of the OIC Committee have been made, expressly or impliedly, in a resolution of the OIC Council of Foreign Ministers,35 by the Malaysian Foreign Ministry,36 and in three OIC press releases.37
24. Further statements that The Gambia is “leading” this action, or that this is “collective” action—thereby suggesting that The Gambia is not acting in its own right—have been made by the Office of the President of The Gambia,38 the Vice-President of The Gambia,39 and the Bangladesh Foreign Ministry.40
25. Documents annexed to the preliminary objections also indicate that the costs of bringing these proceedings are met by a special fund set up by the OIC, to which voluntary contributions are made, and which The Gambia does not control.41 A press report of December 2020 says that the then donors were Bangladesh, Saudi Arabia, Turkey, Nigeria, Malaysia, and the Islamic Solidarity Fund.42 Nothing indicates that The Gambia itself will bear any of the costs, and, indeed, there are indications that it will not.43
Madam President, Members of the Court,
26. What does The Gambia say about these matters?
27. Astonishingly, it says nothing. It gives no alternative account of events and no explanations of these documents. It provides no additional facts. It gives no reasons for not addressing these facts.
28. The Gambia’s written observations annexe but a single new document relevant to these facts: a press release issued by The Gambia’s Justice Ministry on 11 November 2019.44 This new document in fact says that The Gambia has stepped forward “on behalf of the 57 Member States” of the OIC, “with the mandate” of that Organization. It is thus consistent with the statements referred to before.
29. Beyond this, The Gambia makes only general and unparticularized assertions, unsupported by any evidence.
30. The Gambia states that there is “no basis in fact” for the contention that it brings these proceedings at the behest of the OIC, 45 that it alone took the decision to initiate these proceedings on its own behalf, and that all the OIC did was to endorse The Gambia’s decision.46 Where is the evidence of this? We have seen documents indicating that it was only after the Islamic Summit decided that the OIC Committee should bring this case on behalf of the OIC that The Gambia’s Cabinet then approved the OIC’s proposal that The Gambia lead the case. In November 2020, the Gambia’s Justice Minister in fact himself referred to this case as an initiative of the OIC.47 If explanations can be given, The Gambia does not supply them.
31. The Gambia then contends that it was “instrumental” in the adoption of the OIC resolution establishing the OIC Committee and that in recognition of this it was made chair of the Committee.48 Again, where is the evidence? The mere fact that a State is appointed chair of a committee does not of itself mean that it was instrumental in the establishment of that committee or was the main proponent of action taken by the committee.49 The material before the Court does not in fact indicate exactly who made or supported which proposals, when. Myanmar cannot know this, and The Gambia provides no details. Indeed, there are suggestions that main actors may have included Bangladesh,50 or a contact group headed by Saudi Arabia.51 Another document refers to the OIC as having previously been looking for a State to bring these proceedings.52
32. The Gambia then maintains that it, not the OIC, has full control and direction of the case.53 What evidence is there of this? The material before the Court does not indicate who is making what decisions. We do know that three senior OIC officials were members of The Gambia’s delegation at the provisional measures hearing, 54 and it seems that the OIC Committee met some days before The Gambia’s Memorial was filed.55 We know that The Gambia briefs the OIC on the progress of the case.56 One OIC document acknowledges The Gambia’s prerogative to choose the legal representatives,57 but does this not suggest that this prerogative was conferred by the OIC?
33. Finally, The Gambia says that it merely “sought and obtained the support of” the OIC.58 However, documents referring to “support” being given to The Gambia are hardly inconsistent with all the other statements to which I have referred, let alone proof to the contrary.
Madam President, Members of the Court,
34. In cases before the Court, there will rarely be a question as to whether the applicant State acts as a proxy for a third party. However, where there is the burden must be on the applicant State to prove that this is not the case, rather than on the respondent to show that it is the contrary.59
35. Obvious reasons of fairness require this. It is the applicant State that knows the details of its relationship and dealings with the third party. Myanmar cannot know the particulars of The Gambia’s dealings with the OIC and its other Member States.60 The Gambia does know, and its failure to provide any evidence is telling.
36. Furthermore, as a matter of principle, it must be for an applicant to establish the facts necessary to satisfy the fundamental jurisdictional requirements of the kind imposed in every case by the very terms of the Court’s Statute. It is well established that it is the applicant who must prove there was a dispute at the time of the institution of proceedings. The identity of the real applicant is the same kind of fact.61
37. However, even if (quod non) the burden of proof was not on The Gambia, the Court would still need to determine the relevant facts on the basis of such material as is before it.
38. The Gambia has not disputed the authenticity of any of this material, nor denied or sought to explain any of the specific statements made in it, nor has it submitted any contrary evidence. Unparticularized assertions made by The Gambia, unsupported by evidence, cannot be treated by the Court as facts.62
39. The Court has before it official statements by the supreme organ of the OIC and the Government of The Gambia that the latter has been tasked by the former to bring this case on behalf of the OIC. This is reflected in numerous other documents. There is no contrary evidence. Matters must proceed on that basis.63
The question of law
Madam President, Members of the Court,
40. I turn, then, to the question of law.
41. It is of course fundamental that the Court’s contentious jurisdiction is limited.
42. One limitation is that only States may be parties in cases before it. An international organization cannot. Nor can a non-governmental organization, or a commercial corporation, or other entity. The question that arises directly, in this case, is whether an entity that is not a State can circumvent this limitation on the Court’s jurisdiction by appointing or tasking a State to bring a case on its behalf.
43. A second limitation is that the Court can only exercise jurisdiction in contentious cases with the consent of both parties, expressed for instance through their mutual participation in a treaty with a compromissory clause. A related question is whether this limitation can be circumvented in the same way. For instance, suppose that State A is not a party to the Genocide Convention but that State B and State C are both parties without reservation. Could State A, the non-party, bring a case against State B under the Genocide Convention by appointing or tasking State C to bring the case on State A’s behalf?
44. This second question is of some pertinence to this case, because 20 of the 57 Member States of the OIC are either not parties to the Genocide Convention or have made reservations to its Article IX.64 Two of those are Bangladesh and Malaysia, who appear to be members of the OIC Committee,65 and who appear together to have contributed half of the funds financing this case, as of December 2020.66 At least one press article also suggests that Bangladesh was active in persuading the OIC to bring the proceedings.67
45. These questions are not confined to cases under the Genocide Convention. They could arise in cases brought under other treaties, especially if an applicant contends that a treaty creates rights erga omnes partes. These same questions might thus arise in cases brought under treaties concerning any number of areas of law, including environmental, energy or trade law, the law of the sea, or nuclear weapons.
46. In addressing these questions, I refer to the third party on whose behalf proceedings are brought as the “real applicant”, and to the State bringing proceedings on its behalf as the “proxy” State.
47. Now, it might be argued that a proxy State would surely not go to the trouble of bringing proceedings for another unless it also had an interest of its own in the case. But that cannot be assumed. A proxy State might in theory have any number of motivations. It might, for instance, be doing a political favour to the real applicant, in return for a wholly unrelated reciprocal favour. The real applicant might simply pay a proxy State to bring a case. In any event, as The Gambia acknowledges, motivations are irrelevant to matters of jurisdiction.68
48. Regardless of motivations, the position must surely be as follows. If a third party cannot itself bring a case before the Court, for instance, because it is not a State, or because it has no reciprocal acceptance of jurisdiction with the respondent, it cannot circumvent this restriction on the Court’s jurisdiction by using a proxy State to bring proceedings on its behalf.
49. General international law principles of effectiveness and good faith necessitate this conclusion. The Court’s jurisdiction is determined by its Statute, which is a treaty. Treaty law has well-established principles of effectiveness69 and good faith,70 which are an entrenched part of international law more generally.71 If provisions of the Statute limiting the Court’s jurisdiction could be avoided through the use of proxy States, the effectiveness of those provisions would be defeated.
50. In the example I gave earlier, no case could be brought against State A under the Genocide Convention because it is not a party to it, yet State A itself could bring a case under that Convention against State B by using State C as a proxy. This would be antithetical to the principle of reciprocity. Any good faith interpretation of the provisions governing the Court’s jurisdiction, in the light of their object and purpose,72 could not permit such a practice.
51. Furthermore, the question of whether the applicant State acts as a proxy for another must be a question of fact, a question of substance, not merely a question of form or procedure. If an applicant is in fact acting as a proxy for another, it is immaterial whether or not there is a legally binding relationship between the proxy State and the real applicant, such as an agency agreement under international or domestic law, or whether or not the real applicant has the legal power to compel the proxy State to act.73 Whether or not such circumstances exist, the effect of the principles I have referred to would be the same. Nonetheless, in the present case, there are reasons to conclude that The Gambia acts as an organ or agent of the OIC.74
52. Furthermore, if an applicant is in fact acting as a proxy for another, the fact that the real applicant has given the proxy some independent discretions as to how the proceedings are conducted would not alter that fact.
53. The bringing of proceedings as a proxy State for a third party that could not itself bring proceedings can also be characterized as an abuse of process.75 If a State uses its right to bring a case before the Court in order to give access to the Court to a third party that is not entitled to it, how can it be said that this is not a use of proceedings for aims alien to those for which the procedural rights have been granted?76 Nevertheless, whether or not this is characterized as an abuse of process, principles of effectiveness, good faith and reciprocity must prohibit such a practice in any event.
Madam President, Members of the Court,
54. What, then, does The Gambia say about the legal question?
55. Again, it simply does not engage with it.
56. It just says that it is the named applicant in the application instituting proceedings and that all jurisdictional requirements are met in relation to it.77 It says that these considerations alone “foreclose” Myanmar’s first preliminary objection.78 No explanation is given of why this is so. Implicitly, The Gambia may suggest that it is always permissible for any entity not entitled to bring a case to use a proxy State to do so. If so, it presents no arguments to support that contention, nor to counter Myanmar’s contrary arguments.
57. The Gambia then says that its application states that the Agent acts in the name of, and on behalf of, The Gambia.79 However, even if the Agent acts for The Gambia, that does not address the question of whether The Gambia itself is acting on behalf of the OIC.80
58. The Gambia then refers to the principle that a State’s motivation for bringing a case is irrelevant to matters of jurisdiction.81 But of course, previous cases applying that principle did not address the question with which we are presently concerned. We are concerned with identifying who is to be treated as the real applicant for purposes of determining jurisdiction and admissibility. We are not concerned with the motivation of whoever that may be, or of whoever acts on their behalf.
59. The Gambia then says that a dispute existed between it and Myanmar at the time proceedings were instituted. That is denied by Myanmar in its fourth preliminary objection. But in any event, once it is established that the applicant brings proceedings as a proxy for a third party, the effect of principles of effectiveness, good faith and reciprocity will still be the same, whether or not the proxy also has its own dispute with the respondent in relation to the same issue.
Madam President, Members of the Court,
60. That concludes my arguments on the first preliminary objection. Myanmar contends that the relevant facts are clear. As to the law, it cannot be possible for an international organization to bring a case before the Court by using a State as a proxy applicant. The Gambia has provided no substantive response to that contention. This may be the first case in which this issue has arisen, but depending on what the Court decides, it may be far from the last. This case will set an important precedent.
61. I thank the Court for your careful attention. Madam President, may I now please ask you to call on Professor Talmon to address the second preliminary objection.