Summary

Over the winter of 2023–2024, the Public International Legal Bureau prepared for Global Affairs Canada officials the following analysis considering the hypothetical re-entry of a rocket body into Canadian territory. The Bureau advised that an unexpected re-entry of a rocket body into Canadian territory is not an actionable breach of a treaty or convention in the absence of demonstrable damage. The launching State should warn Canada, and other potentially affected States, the moment it knows or ought to know that an object is off course and re-entering in an uncontrolled manner. However, the lack of a warning or notice is not a breach of an international obligation contained in a treaty or convention.

Analysis

Article 1 of the Convention on International Civil Aviation, done at Chicago on 7 December 1944 (the “Chicago Convention”) confirms that every State has complete and exclusive sovereignty over the airspace above its territory. In practice that means that other States cannot enter Canadian airspace without permission from the Government of Canada; doing so would be a violation of Canadian sovereignty and a breach of Article 1 of the Chicago Convention. However, unintentional trespasses by rocket debris into airspace are rarely, if ever, the subject of a complaint. This includes inadvertent and uncontrolled re-entries of rocket bodies and spacecraft into foreign territory. There are recent examples of Space X debris re-entering and landing in foreign territory without the victim State making a complaint or accusing the perpetrator of breaching international law. The absence of a complaint is usually due to the lack of significant damage caused by the breach of sovereignty. A trespass without any measurable damage is rarely pursued as a breach of the Chicago Convention or customary international law. There has only been one case in which the victim State made a claim against the launching State for damage from the re-entry of a space object: Canada claimed financial compensation from the USSR as a result of the 1978 crash of Cosmos 954, a nuclear-powered satellite, in the Northwest Territories. In that case, the large area of radioactive debris was the subject of a significant remediation effort for which Canada claimed compensation. In the proposed scenario, the extent of the damage caused by the re-entry of the rocket body is unknown. Canada would likely look to determine whether radioactive or other toxic materials were incorporated into the rocket or its payload. If measurable damage would occur, Canada could, as it did in 1978, make a claim under the Convention on International Liability for Damage Caused by Space Objects, done at London, Moscow and Washington, D.C. on 29 March 1972 (the “Liability Convention”).

Annex 15 to the Chicago Convention establishes the standards relevant to the provision of notices to States and air operators of potential dangers to international civil aviation. Standard 6.3.2.3(m) of Annex 15 states that a Notice to Airmen (NOTAM) shall be circulated whenever a hazard which affects air navigation is present. Rocket launches and rocket debris are specifically identified in the Standard as hazards for which a NOTAM must be circulated. The Standard does not establish when a NOTAM should be issued (i.e. how many days or hours before the hazard is present) but the established practice is to provide 7–10 days notice in advance of the anticipated hazard materializing.

The standards in the Annexes to the Chicago Convention are not legally enforceable international obligations in and of themselves. Therefore, failure to strictly adhere to the standards is not a breach of the Chicago Convention or an international obligation. Furthermore, an unanticipated hazard caused by an unpredictable re-entry will make it very difficult to issue a NOTAM with 7–10 days’ notice. Nevertheless, the launching State should issue a NOTAM or contact the potentially affected States as soon as it becomes evident that the hazard to international civil aviation will materialize. Launching States are absolutely liable for any damage caused on earth by any space object or related component launched from their territory and as such are expected to collect information and monitor launch activities from their territories, including by private launch operators. When a launching State knows or ought to know that there is indeed a hazard and whether they would be in a position to issue a NOTAM or inform Canadian civil air navigation service providers so that they could issue a NOTAM would depend on the circumstances of each launch and the domestic reporting requirements for that kind of information that may be applied by the launching State.

Failing to warn Canadian authorities of a potential danger to international civil aviation and to persons or property on the ground may not be an actionable breach of an international obligation. However, it represents reckless and irresponsible behaviour on the part of the launching State. At some point, a launching State will be aware that its rocket is going to re-enter in an uncontrolled manner in the vicinity of Canadian territory. At that point, it should warn Canadian authorities. Some launching States will no doubt, as the USSR did in 1978, claim that they did not foresee any danger to Canadian territory, so they saw no need to alert Canadian authorities. That was an unacceptable response in 1978 and it is even more unacceptable in 2023. It represents a pattern of behaviour demonstrating reckless disregard for the interests and sovereignty of other States. While Canada may not be able to bring a claim for damages, it is still possible to highlight the reckless behaviour and advocate for more responsible behaviour from launching States. However, Canada would first need to locate the debris, and assess the damage, if any, in order to properly calibrate any possible public messaging towards the responsible launching State.

In the final analysis, launching States should warn Canada, and other potentially affected States, the moment they know or ought to know that their object is off course and re-entering in an uncontrolled manner. However, the unexpected re-entry of a rocket body into Canadian territory is not an actionable breach of a treaty or convention, based on the information currently available. This conclusion can be re-assessed as the specific facts of an individual case becomes available.

(1) Introduction

The Vienna Convention on Diplomatic Relations Footnote ¹ was negotiated during the late 1950s and early 1960s, and entered into force in 1964. The Convention codified many obligations for the exchange and treatment of envoys between States, which had been firmly established in customary international law over hundreds of years, and also added new law in a number of discrete areas. The preamble to the VCDR underlines that the Convention aims to promote fundamental principles of international law, including the sovereign equality of States, the maintenance of international peace and security, and the promotion of friendly relations among nations. The obligations in the VCDR are therefore crucial to the conduct of foreign relations and to a rules-based international order. They provide a set of rules that govern the diplomatic relations between all States. By their very nature, they are facilitative, intended to assist States in resolving an array of matters through dialogue and reliance on the Convention’s provisions regulating diplomatic relations.

It is in this context that this article assesses one area of particular importance in diplomatic relations, namely the rules that permit a State to lawfully limit or reduce the number of foreign diplomats at a diplomatic mission located in their territory. As a case study to explore the scope of the relevant VCDR provisions, this article delves into the recent decision by the Government of India to unilaterally remove the privileges and immunities of 41 accredited Canadian diplomats (more precisely “diplomatic agents” in the language of the VCDR) at the Canadian High Commission in New Delhi and their accompanying family members by October 20, 2023.

According to the Indian government’s public statement of October 20, 2023, Canadian diplomats in India were accused of “continued interference in [India’s] internal affairs,” and its actions were justified because they brought “parity” of diplomatic presence between India and Canada.Footnote ² In reality, it is Canada’s position that the relevant articles of the VCDR demonstrate that India’s actions were contrary to the VCDR, for the reasons outlined below.

Research in support of this article makes clear that the receiving State does not have an absolute discretion to set the size of a diplomatic mission in its territory. The article also shows that there does not exist in international diplomatic law any agreed concept of “parity” of representation, despite claims by India to the contrary. In addition, it shows that the only way in which a receiving StateFootnote ³ can legitimately revoke the privileges and immunities of accredited diplomats in its territory is by declaring them “persona non grata.” By showing the reality of what is and is not lawful under the VCDR, this article seeks to dispel a number of misconceptions found in the public statements by the Government of India, by which it tried to legitimize its illegal actions. This assessment is undertaken with a view to making clear that India’s actions in this instance are not accepted State practice.

(2) The Scope of Article 11.1 of the VCDR: The Size of a Diplomatic Mission

Article 11.1 of the VCDR, which addresses the circumstances in which the receiving State may limit the size of a foreign diplomatic mission in its territory, reads as follows:

In the seminal text, Diplomatic Law: Commentary on the Vienna Convention on Diplomatic Relations, Eileen Denza notes that, among the States negotiating Article 11, there was general agreement that “a balance must be struck between the interests of the sending and the receiving State.”Footnote ⁴ Denza states that, in the absence of agreement, the VCDR provides that the receiving State can determine the size of a particular foreign diplomatic mission. She immediately adds, however, that this discretion of the receiving State to determine the size of a foreign diplomatic mission has “prescribed constraints”.Footnote ⁵ Thus, while the receiving State can rely on Article 11.1 to limit the size of a foreign diplomatic mission, it can only do so within the scope provided therein.

The negotiating history of the VCDR fully supports the interpretation that Article 11.1 does not allow the receiving State to unilaterally limit the size of diplomatic missions in its territory. Leading up to and during the negotiations that resulted in the VCDR, there was agreement that it would be helpful to formulate some rule on mission size (no such rule existed at that time in customary international law). The primary point of debate was the level of discretion that the receiving State should have in the setting of limits on mission size. The final result was the present text of Article 11.1: the “subjective” test which it sets out makes clear that it is the receiving State’s assessment that is the starting point, but also fetters the State’s complete discretion by requiring that any limits which it places on mission size must be demonstrably “reasonable and normal.”Footnote ⁶

While the receiving State is allowed a certain leeway in interpreting what is reasonable and normal, for the reasons discussed above, it does not change the fact that any decision must still be reasonable and normal based on the facts.

Looking to the Vienna Convention on the Law of Treaties (VCLT), the provisions confirm the requirement to interpret a treaty in “good faith”, and “in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its [the treaties] object and purposes.”Footnote ⁷ Thus, the VCLT supports an ordinary meaning analysis. Relying on the ordinary meaning given to those terms, “reasonable” means: moderate or fair; not extreme or excessive”.Footnote ⁸ Moreover, “normal” is defined as “conforming to a type, standard, or regular pattern; characterized by that which is considered usual, typical or routine.”Footnote ⁹

Additionally, the VCLT supports an approach to the interpretation of Article 11.1 in light of the objects and purposes of the VCDR itself, which — as set out in the preamble — include principles such as the promotion of international peace and security and of friendly relations among States. Both these approaches reinforce an understanding of Article 11.1 that does not allow for unilateral action by the receiving State that completely disregards the needs of the sending State.

Finally, based on both the ordinary meaning of the language of Article 11.1, as well as an analysis of the provision in the context of the objective purpose of the VCDR, it becomes clear that while the receiving State enjoys some discretion in the way it may apply the reasonable and normal standard, it can only limit mission size in a manner that is usual, typical, moderate, fair and not excessive.

The obligation for the receiving State to determine the size of the mission in a manner that is reasonable and normal is further qualified by two additional requirements. First, the receiving State must have regard “to the circumstances and conditions in the receiving State”. Second, the receiving State must have regard “to the needs of the particular mission.”

The requirement to have regard to the needs of a particular mission can be understood as a requirement to have regard to the needs of the sending StateFootnote ¹⁰ in the receiving State. This is because the mission represents the sending State in the receiving State. Thus, the receiving State is obligated to give due consideration to the needs of the sending State in the receiving State. A decision by the receiving State to limit the size of the mission of the sending State in a manner that completely disregards the latter’s needs would be contrary to Article 11.

Article 11.1 is therefore clear that the receiving State does not have carte blanche to take any decision that it wishes regarding limits to the size of a foreign mission already staffed with accredited diplomatic agents. Article 11.1 does not provide the receiving State with absolute discretion to set the size of a foreign diplomatic mission. On the contrary, Article 11.1 is a carefully crafted result of negotiations reflecting the agreement mentioned by Denza to strike a balance between the interests of the sending State and those of the receiving State.

The case of India offers a unique deep dive on the extent to which a receiving State is allowed, under international law, to limit the size of a diplomatic mission. Based on the foregoing analysis, Article 11.1 does not, for example, provide a valid justification for India’s October 2023 decision to unilaterally and abruptly revoke the accreditation, and thus the privileges and immunities, of 41 Canadian diplomats (“diplomatic agents” in the language of the VCDR) who were serving at the Canadian High Commission of Canada in Delhi. The decision, which reduced the number of Canadian diplomatic agents in India by two-thirds, evidently failed to give any consideration to the circumstances and conditions in the receiving State as well as the needs of the Canadian mission in particular — including the need for a high staff component sufficient to meet the high demand for its services in India.

(3) Is “Parity” a Valid Basis for Limiting the Size of a Diplomatic Mission under Article 11.1?

On September 18, 2023, Canadian Prime Minister Trudeau announced before Parliament that Canadian intelligence agencies were “actively pursuing credible allegations of a potential link between agents of the Government of India and the killing of a Canadian citizen, Hardeep Singh Nijjar.”Footnote ¹¹ India responded by informing Canada that the privileges and immunities of 41 Canadian diplomats at the Canadian High Commission in New Delhi and their accompanying family members would be removed by October 20, 2023.

According to its public statement of October 20, 2023Footnote ¹², the Government of India said that its unilateral revocation of Canadian diplomats’ accreditation was grounded in what it called “parity” and “equivalence” between the number of Indian diplomats serving in Canada and the component of Canadian diplomats serving in India. India further expressly stated that it rejected any attempt to portray India’s actions as a “violation of international norms.”Footnote ¹³

The language of “parity” and “equivalence” is not found in the VCDR. While the VCDR is completely silent on this point, one could say, for the sake of argument, that “parity” of diplomatic representation in the sending State and receiving State could be one factor, among others, for the receiving State to consider in assessing what is a reasonable and normal size of the foreign diplomatic mission under Article 11.1. As noted above, however, in applying Article 11.1 the receiving State is obligated to have regard to the needs of the sending State’s mission in the receiving State. Clearly the diplomatic representational needs of one State in the other State’s territory may differ significantly, which can translate in a significant difference in the diplomatic representation footprint between them. The relative population size of each State, and the volume of client demands for consular, immigration, trade and other services will often, for example, vary greatly between a sending State and a receiving State.

The fact that parity is not a primary consideration in mission size is confirmed by reference to the large discrepancies of representation between States all over the world. There are many examples of diplomatic representation of one country that is from two times to even ten times larger than that of its bilateral counterpart. Such result is not an aberration, but rather reflects standard state practice in the conduct of bilateral diplomatic relationships between various countries. Consequently, “parity” or “equivalence” alone is not by itself a valid justification to limit the size of a foreign diplomatic mission under Article 11.1 of the VCDR.

Moreover, the attempt to use “parity” as a concept from which to assess mission size is problematic because the basis for applying “parity” can never be clean cut. For example, it is not clear whether an assessment of parity would include accredited consular staff of a sending State at consular posts, which are located outside the capital city of the receiving State. It is also unclear whether non-diplomatic staff (so called “locally engaged staff”) who work at a mission of the sending State would be included in the assessment of parity.

Ultimately, “parity” or “equivalence” is a misleading term, a term perhaps appealing at face value, but for which further examination reveals that it is not included in the VCDR as a factor for decision-making in regard to mission size, and that it is not a term which allows for easy comparison between the diplomatic state representation of sending States.

(4) Persona Non Grata Provision in the VCDR

As set out in the foregoing analysis, Article 11.1 carefully circumscribes the circumstances in which a receiving State is lawfully permitted to limit the size of a foreign mission. Additional provisions in the VCDR specify how a diplomat’s functions in a foreign diplomatic mission, and by extension the privileges and immunities to which they are entitled, can come to an end. A joint reading of articles 43 and 9 of the VCDR is important in that respect:

Once a diplomatic agent has already been accredited by the sending State, Articles 43 and 9 provide the lawful ways by which the functions of the diplomatic agent can be brought to an end. In accordance with Article 43, the first way by which the functions of a diplomatic agent can come to an end is by notification of this fact by the sending State to the receiving State, upon which the receiving State will end the accreditation of the diplomatic agent on the relevant date found in the notification. The second way is for the receiving State to end the diplomatic functions of a diplomat whom they have accredited. The only way provided for the receiving State to end the diplomatic function of a diplomat at their discretion is through notification by the receiving State of a decision to declare the diplomat persona non grata under Article 9 of the VCDR. (Article 9.2 even permits the receiving State to declare a person not grata before their arrival in the territory of the receiving State.)

Notification that a diplomatic agent is persona non grata triggers an obligation on the sending State to recall that individual or terminate their functions in the diplomatic mission “within a reasonable period” (defined in Canada’s Foreign Missions and International Organizations Act Footnote ¹⁴ as “a period, not exceeding ten days, commencing on the day on which notice is given”).Footnote ¹⁵ Article 9.2 of the VCDR provides that if the sending State refuses or fails within the reasonable period to carry out its obligations to recall or terminate the diplomat’s functions, the receiving State may then refuse to recognize the person concerned as a member of the mission.

When a diplomatic agent is declared persona non grata, they will no longer benefit from the diplomatic privileges and immunities which they had enjoyed under the VCDR throughout their period of service at the mission.Footnote ¹⁶

Several provisions of the VCDR set out the range of privileges and immunities that must be accorded to diplomatic agents for the period of their service at their diplomatic mission in the receiving State. These privileges and immunities provide diplomatic agents with specific exemptions from the application of the sending State’s jurisdiction. For example, in the absence of an express waiver by the sending State,Footnote ¹⁷ an accredited diplomat cannot be prosecuted by the courts of the receiving State, nor can they be sued in the receiving State in respect of certain civil matters. They cannot be compelled to be a witness; their residence, vehicle, and other property in the receiving State are protected from the enforcement jurisdiction that a State normally has over all individuals present in their territory.Footnote ¹⁸

The requirement that the receiving State grant diplomatic privileges and immunities to diplomatic agents is, in part, recognition of the equality of States in their conduct of foreign relations. The foreign diplomatic agent embodies the foreign State and is tasked with conducting its official functions in the receiving State. The receiving State cannot therefore legally impose its jurisdiction on a foreign State through the application of its own domestic laws. As the preamble to the VCDR states, privileges and immunities “contribute to the development of friendly relations among nations, irrespective of their differing constitutional and social systems”. The preamble also confirms that “the purpose of such privileges and immunities is not to benefit individuals but to ensure the efficient performance of the functions of diplomatic missions as representing States.”

The receiving State, however, retains the ability to declare an accredited diplomatic agent persona non grata and require the person to depart the territory of the State in a timely manner and without having to explain its decision. The existence of this tool is the counterpart for the extensive privileges and immunities that diplomatic representatives enjoy in the foreign State. Moreover, Article 9.2 of the VCDR provides that if the sending State refuses or fails within a “reasonable period” to recall the persons concerned or terminate their functions with the mission, the receiving State may “refuse to recognize the person concerned as a member of the mission.” This provides the receiving State with the authority to revoke a foreign diplomatic agent’s accreditation and the full range of diplomatic privileges and immunities. Article 9 provides the only lawful method in the VCDR for a receiving State to unilaterally revoke the privileges and immunities of a diplomat whom they have accredited.

Returning to the unilateral and abrupt revocation by India of the privileges and immunities of 41 Canadian diplomats, it has already been shown that India’s statement regarding the need for “parity” in diplomatic presence alone does not meet the justification test set out in Article 11.1 of the VCDR to limit the size of a foreign mission. As demonstrated above, the only legitimate manner in which the receiving State (India in this case) can unilaterally revoke the privileges and immunities of diplomatic agents — once they have been granted — is by using the persona non grata process set out in Article 9 of the VCDR. Thus, the revocation of the privileges and immunities of the duly accredited foreign diplomats by India, without using the persona non grata process, was inconsistent with the VCDR.

(5) Examples of Other Mass Expulsions of Diplomats

A review of previous incidents of mass expulsions since the coming into force of the VCDR supports the understanding that the mechanism for the determination of the size of a diplomatic mission set out in Article 11.1 has not been cited in past cases to justify such expulsions.

In a recent article, Kevin Riehle provides data on all expulsions of Soviet and Russian diplomats since World War II. Two specific examples which he references are the mass expulsion in 1982 of 17 Soviet diplomats from Costa Rica, and the mass expulsion of 47 Soviet diplomats from France in 1983.Footnote ¹⁹ In neither of those examples, discussed in the Riehle article or other sources, is there any indication that Article 11.1 was used by the receiving States to effect the expulsions. In fact, quite the opposite. Riehle makes clear his understanding that “[t]he only recourse for a host government that wants to protest the actions of a foreign diplomat is to declare the person persona non grata and expel them from the country for ‘activities incompatible with diplomatic status.’” Riehle goes on to specify that it is the persona non grata mechanism that “gives countries the right to expel diplomats who violate host country laws or who interfere in the host country’s internal affairs.”Footnote ²⁰

Another helpful example is from 1971, when the United Kingdom expelled 105 Soviet diplomats for “inadmissible activities.” The removal of the individuals was undertaken through the use of the persona non grata mechanism. Importantly, the decision to reduce (place a limit on) the allowable number of Soviet diplomats which the UK would accredit by a number equal to the total number of diplomats expelled from the UK, was taken as a separate decision to that of the expulsions.

The understanding that can be drawn from the above example is that placing a ceiling on the number of diplomats allowed in the receiving State was justified under Article 11.1, given the circumstances in the UK: the UK had clear evidence — portions of which were made public, that espionage activity — clearly not a permissible diplomatic activity — was being undertaken by certain members of the Soviet Embassy. Thus, the UK could make the strong argument that the needs of the mission could be met by the “true” diplomats in place who were carrying out diplomatic functions (i.e. the total contingent minus those who were expelled for espionage). In carrying out a significant expulsion of individuals, the UK did not assert that a simple ceiling on the number of foreign diplomats would be sufficient to justify the removal of the individuals. Rather, there was a separate persona non grata decision made through which the individuals were removed from the country.Footnote ²¹

The foregoing examples reinforce the conclusions regarding the illegality under the VCDR of the recent Indian actions to deny 41 accredited Canadian diplomats of their privileges and immunities, without formally declaring the individual as a persona non grata. Indian attempts to justify its actions by citing “parity” and equality of numbers — concepts that do not exist in the VCDR — do not withstand scrutiny. As the examples above confirm, India’s purported reliance on Article 11.1 to remove the privileges and immunities of Canadian diplomats in India was contrary to the VCDR.

(6) Article 47.1 of the VCDR: The Prohibition of Discrimination as between States

Article 47.1 speaks to the prohibition of discrimination against states. It reads as follows:

Article 47.1 lays down a general obligation not to discriminate as between States in the application of the provisions of the VCDR, whereas Article 47.2 sets out the exceptional circumstances in which discrimination is deemed not to have taken place. The Government of India’s decision to effectively reduce by two-thirds Canada’s diplomatic footprint in the country was discriminatory. As of the time of writing, no other States have been targeted by India for a such a significant reduction in diplomatic mission size. India’s actions were therefore inconsistent with Article 47.

(7) Conclusion

As an almost universally ratified instrument derived largely from customary international law, the VCDR continues to play a prominent role in reinforcing the rules-based international order in an increasingly complex world. Its provisions on the lawful limitations or reductions in the diplomatic footprint in a receiving State are intended to provide a stable foundation for the conduct of foreign relations.

As this article has shown, a receiving State’s unilateral decision to revoke the privileges and immunities of a significant number of a given country’s accredited diplomats, without recourse to the persona non grata mechanism, is contrary to diplomatic law. In the case study of India, the purported justification for the revocation of the privileges and immunities of two-thirds of Canada’s diplomats, based on a notion of “parity” in diplomatic presence between Canada and India is not supported by a legal analysis of the VCDR, or State practice.

Some of the effects of India’s actions were immediate — the departure of 41 Canadian diplomats. However, another less visible consequence — the erosion of the spirit and intent of the provisions of a foundational international Convention — cannot be underestimated. The actions of India have the potential to put into question the fundamental protections that international law affords to the diplomatic agents of any State, those who are tasked by their sending States to serve in foreign States without fear of personal legal consequence. Respect for international law is vital to supporting and maintaining a rules-based international order. At a time of increasing uncertainty, it behooves each member of the international community to uphold international law, including diplomatic law, as part of their commitment to strengthening the global system of international relations. Ultimately, an empowered rules-based international order is a vehicle to ensure peace, stability and security for all.

Background

On 26 February 2022, Ukraine instituted proceedings against the Russian Federation (“Russia”) at the International Court of Justice (the “Court”)Footnote ²² under the Convention on the Prevention and Punishment of the Crime of Genocide (the “Genocide Convention”).Footnote ²³ In its Application Instituting Proceedings, Ukraine argued that Russia had falsely claimed that acts of genocide had occurred in the Luhansk and Donetsk regions of Ukraine. Ukraine further argued that, based on this false and unsubstantiated allegation, Russia subsequently embarked on a military invasion of Ukraine to prevent and punish these purported acts of genocide, despite there being no factual basis supporting the existence of genocide.Footnote ²⁴ On 1 October 2022, Russia filed preliminary objections to the jurisdiction of the Court and the admissibility of the case.Footnote ²⁵

As Contracting Parties to the Genocide Convention, Canada and the Netherlands filed a Joint Declaration of Intervention with the Court on 7 December 2022 pursuant to Article 63 of the Statute of the International Court of Justice, pertaining to issues of interpretation of the provisions of the Genocide Convention relevant to both the Court’s determination of jurisdiction, and to the eventual merits.Footnote ²⁶ The Court confirmed the admissibility of Canada and the Netherlands’ joint intervention at the preliminary objections stage. The Court also determined that, of the 31 other declarations of intervention filed, 30 were admissible at the preliminary objections stage, insofar as they concerned the interpretation of the provisions of the Genocide Convention that were relevant for the determination of the Court’s jurisdiction.Footnote ²⁷

Canada and the Netherlands’ Intervention

On 5 July 2023, Canada and the Netherlands filed their joint Written Observations regarding the interpretation of the compromissory clause found in Article IX of the Genocide Convention. Footnote ²⁸ This provision states that “[d]isputes between the Contracting Parties relating to the interpretation, application or fulfilment of the present Convention, including those relating to the responsibility of a State for genocide or for any of the other acts enumerated in article III, shall be submitted to the International Court of Justice at the request of any of the parties to the dispute.”Footnote ²⁹

The joint observations of Canada and the Netherlands include three main arguments: (1) the term “dispute” must be interpreted consistently with the wide meaning given to that term in the case law of the Court; (2) disputes can be referred to the Court at the request of any of the parties; and (3) the inclusion of the word “fulfilment” in Article IX supports a broad interpretation of this provision.

(i) Wide meaning of “dispute” Canada and the Netherlands did not address the existence of a dispute between the parties as such but focussed on the proper interpretation of “dispute,” as included in Article IX.Footnote ³⁰ They argued, in particular, that the term “dispute” is sufficiently broad to encompass a disagreement over the lawfulness of the conduct of an applicant State and is not limited to the conduct of the respondent State.Footnote ³¹

(ii) Referral of disputes by any party Article IX of the Genocide Convention expressly states that disputes shall be referred to the Court “at the request of any of the parties to the dispute.”Footnote ³² Canada and the Netherlands argued that the ordinary meaning of these words supports the conclusion that any Contracting Party facing what it considers to be unfounded allegations of a breach of the Genocide Convention can, on its own accord, bring the matter before the Court. The Court’s jurisdiction is not limited to situations where the applicant State claims that the respondent State is responsible for genocide.

(iii) “Fulfilment” in Article IX supports a broad interpretation The inclusion of the term “fulfilment” in Article IX supports a broad interpretation of this provision. Canada and the Netherlands notably argued that this article confers jurisdiction where a dispute arises concerning the scope and content of the provisions of the Genocide Convention, along with any actions taken in response. As such, any actions taken in relation to the duty to prevent and punish genocide embodied in Article I of the Genocide Convention would fall within the jurisdiction of the Court.

Conclusion and Next Steps

On 2 February 2024, the Court delivered its decision on the preliminary objections relating to the jurisdiction of the Court and the admissibility of the case. The Court rejected most of Russia’s preliminary objections and determined that it had jurisdiction to adjudicate on whether there is credible evidence supporting a finding that Ukraine has committed genocide, contrary to the Genocide Convention. However, the Court upheld one of Russia’s preliminary objections and found that it did not have jurisdiction to adjudicate whether Russia’s use of force in and against Ukraine as well as Russia’s recognition of the independence of the so-called “Donetsk People’s Republic” and the “Luhansk People’s Republic,” violate the Genocide Convention. Footnote ³³

The case will now move to the merits stage. The Court has fixed 2 August 2024 as the time-limit for the filing of the Counter-Memorial by Russia.Footnote ³⁴ Recent developments can be found on the International Court of Justice’s website.

Background

On 8 June 2023, Canada and the Netherlands (the “Applicants”) filed a Joint Application instituting proceedings at the International Court of Justice (the “Court”) against the Syrian Arab Republic (“Syria”) concerning alleged violations of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (the “Convention against Torture”).Footnote ³⁵ The Applicants made a concurrent request for the indication of provisional measures.Footnote ³⁶ Oral hearings to consider the provisional measures request were held in The Hague on 10 October 2023, following a 3-month postponement requested by Syria. Ultimately, Syria chose not to attend the oral proceedings, but did provide its position to the Court by letter.Footnote ³⁷

Circumstances Requiring the Indication of Provisional Measures

Pursuant to Article 41 of the Statute of the International Court of Justice (the “Statute”) and Articles 73, 74 and 75 of the Rules of Court (1978), Canada and the Netherlands filed a request for the indication of provisional measures. In order for the Court to indicate provisional measures, the Applicants must satisfy three conditions: (1) that the Court has prima facie jurisdiction over the dispute; (2) that the rights claimed are “plausible” and linked to the measures requested; and (3) that there is a real and imminent risk of irreparable prejudice to the rights claimed.

(i) Prima Facie Jurisdiction When considering the issue of jurisdiction for the purposes of the indication of provisional measures, the Court need only be satisfied that it has prima facie jurisdiction over the dispute.Footnote ³⁸ The Applicants contended that they satisfied the criteria under Article 30(1) of the Convention against Torture to establish the jurisdiction of the Court pursuant to Article 36(1) of the Statute. They demonstrated that there is an existing dispute between the parties concerning the interpretation and application of the Convention against Torture which could not be settled through negotiation despite their genuine attempts to do so for more than two years. Furthermore, no agreement had been reached on the organisation of arbitration within six months, and the dispute had not been otherwise resolved in the meantime. Therefore, the Applicants argued that the Court had prima facie jurisdiction to hear the request for provisional measures.

(ii) The Rights Whose Protection Is Sought and Their Plausible Cause At the provisional measures stage of any proceedings, the Court must only decide whether the rights claimed, and for which protection is sought, are “plausible” and whether they are linked to the provisional measures requested.Footnote ³⁹ The Applicants asserted that their rights, which were to secure compliance by Syria with its obligations under the Convention against Torture, were plausible by dint of their status as States Parties to that convention. They submitted that the protection of their rights to seek Syria’s compliance would also protect persons in Syria that were at imminent risk of torture and ill-treatment. The Applicants further contended that the measures requested were directly linked to the rights which formed the subject matter of the dispute.

(iii) Risk of Irreparable Prejudice and Urgency In consideration of a request for provisional measures, the Court must assess whether irreparable prejudice could be caused to the rights which are at issue in the case. Provisional measures will only be indicated if there is urgency in the sense that there exists a “real and imminent risk that irreparable prejudice will be caused to the rights claimed before the Court gives its final decision.”Footnote ⁴⁰ The Applicants contended that Syria’s well-documented, systematic and reoccurring violations of its obligations under the Convention against Torture were causing irreparable prejudice to their right to seek Syria’s compliance with its obligations, and constituted irreparable harm with respect to each victim. They further explained that the urgency to indicate provisional measures had persisted throughout the dispute.

Provisional Measures Requested by the Applicants

The Applicants requested seven provisional measures, followed by an eighth introduced during the oral hearing. The provisional measures requested were aimed at ensuring compliance with Syria’s obligations to prevent torture and other ill-treatment, as well as to protect the evidentiary record and the integrity of the proceedings before the Court. Additionally, certain provisional measures were sought to specifically address the substantially enhanced risk of being subjected to torture and other CIDTP for detainees who are arbitrarily detained, held incommunicado, or living in abhorrent detention conditions.

Order of the Court and Next Steps

On 16 November 2023, the Court delivered its Order on the request for provisional measures, which has binding effect.Footnote ⁴¹ The Court determined that it had prima facie jurisdiction to decide on the question of provisional measures pursuant to Article 36(1) of the Statute and Article 30(1) of the Convention against Torture.Footnote ⁴² Furthermore, the Court reaffirmed its decision in Belgium v. Senegal Footnote ⁴³ by concluding that the Applicants had prima facie standing in this case given the erga omnes partes character of the obligations in the convention.Footnote ⁴⁴

The Court held that the rights claimed were plausible and that there existed a link between the rights claimed and some of the requested provisional measures.Footnote ⁴⁵ Furthermore, the Court stated that torture and other CIDTP create a real and imminent risk of irreparable prejudice to the asserted rights.Footnote ⁴⁶

The Court ordered two provisional measures:

1. 1. By thirteen votes to two, the Court ordered that Syria shall take all measures within its power to prevent acts of torture and CIDTP and ensure that its officials, as well as any organizations or persons which may be subject to its control, direction or influence, do not commit any acts of torture or CIDPT;

2. 2. By thirteen votes to two, the Court held that Syria shall take effective measures to prevent the destruction and ensure the preservation of any evidence related to allegations of acts within the scope of the Convention against Torture.Footnote ⁴⁷

In its Order of 1 February 2024, the Court fixed 3 February 2025 as the time limit for the filing of the Memorial by the Applicants. The time limit for the filing of the Counter-Memorial by Syria was set for 3 February 2026.Footnote ⁴⁸

Background

On 16 December 2022, the Tribunal produced an order accepting the request from COSIS for an advisory opinion on the following:

1. a. to prevent, reduce and control pollution of the marine environment in relation to the deleterious effects that result or are likely to result from climate change, including through ocean warming and sea level rise, and ocean acidification, which are caused by anthropogenic greenhouse gas emissions into the atmosphere?

2. b. to protect and preserve the marine environment in relation to climate change impacts, including ocean warming and sea level rise, and ocean acidification?Footnote ⁵¹

Following the Tribunal’s order on 15 February 2023, States Parties to the Convention were granted until 16 June 2023, to provide their written statements on the questions submitted to the Tribunal.Footnote ⁵²

Summary of Canada’s Position

In the conclusion of its statement, Canada respectfully submitted that the Tribunal should reach findings that are aligned with the following:

1. 1. Anthropogenic emissions of greenhouse gases (GHGs) are captured by the definition of marine pollution under Article 1(1)(4) of the Convention;

2. 2. All States Parties have a general obligation under Part XII to protect and preserve the marine environment in relation to the impacts of climate change, including ocean warming, acidification, and sea level rise;

3. 3. All States Parties have a general obligation under Part XII to put rules and measures in place to prevent, reduce and control pollution of the marine environment in relation to the deleterious effects that result or are likely to result from climate change, including through ocean warming and sea level rise, and ocean acidification, which are caused by anthropogenic GHGs emissions into the atmosphere;

4. 4. All States Parties also have obligations to prevent, reduce and control pollution of the marine environment from specific forms of pollution related to climate change, with the most important ones being pollution from land-based sources, and pollution from and through the atmosphere;

5. 5. The obligations of States Parties under Part XII are ones of due diligence, which require both the adoption and enforcement of rules and measures, and such rules and measures must take into account “internationally agreed rules, standards and recommended practices and procedures,”Footnote ⁵³ especially those from the International Climate Change regimeFootnote ⁵⁴;

6. 6. All States Parties have a duty to cooperate in addressing pollution of the marine environment from climate change, which can include mitigation and adaptation efforts, capacity-building and the transfer of technology initiatives, and the further development of international norms;

7. 7. The obligations under Part XII are informed by the obligations under specialized international regimes dealing with climate change, and especially those under the International Climate Change regime, but the obligations under Part XII should not create additional obligations that go beyond or conflict with the relevant external obligations; and

8. 8. An important indicator of the extent to which States Parties are meeting their general obligation to protect and preserve the marine environment, as well as their specific obligations under Part XII in relation to climate change pollution and the impacts of climate change, is the extent to which they effectively and ambitiously implement relevant international agreements related to climate change.Footnote ⁵⁵

Canada is of the view that the above positions will ensure the preservation of the Convention’s overall integrity and overarching objectives, while also ensuring that obligations under other agreements, such as the United Nations Framework Convention on Climate Change (UNFCCC) and the Paris Agreement, are not undermined by imposing a separate set of conflicting or differing climate change related obligations.

As a final observation in its statement, Canada highlighted the role it played during the negotiations of the Convention in ensuring the inclusion of Article 192. In 1972, during a Sea-Bed Committee session, Canada introduced a working paper on the preservation of the marine environment for the purpose, in part, of providing “a general outline of a comprehensive approach to the preservation of the marine environment and the prevention and control of marine pollution.”Footnote ⁵⁶ The paper noted an absence of any treaty provision “explicitly laying down the general obligation of States to preserve the marine environment and to prevent its pollution from all sources” and stressed:

While those words were written over 50 years ago, during a time when climate change was not under international consideration, Canada believes that the sentiment of those words remains relevant today and serves as an important reminder of the Convention’s role in furthering commitments to protect and preserve our oceans, by supporting and promoting the work in other more specialized international regimes dealing with climate change.

As such, addressing the impacts of climate change on our oceans should involve the harmonious and complementary engagement of many different areas of international law, including the law of the sea and the International Climate Change regime.