Access to the International Court of Justice regardless of the national interest

The man in the gray hat did not look up and continued walking, looking at the wet tiles. The first drops fell, the “front of all storms” made the atmosphere rarefied and I began to fear that I would not fulfill that ambition that had already lasted thirty years, with the same conviction of those who understand themselves predestined to important personal things above of national interests.

Marcelo Kohen recalls that since 2016 he was “the first non-European elected as general secretary in almost 150 years of the Instituto de Droit International”, an entity that, in 1904, won the Nobel Peace Prize, «for its efforts as an unofficial body in formulating the general principles of the science of international law.” Nothing that has to do with the personal project of this jurist who has lived and worked for more than twenty years in Geneva, in an Institute that occupies the unremarkable No. 2,940 in excellence among the ranking of universities in the world and, of course, very Far from this Nobel Peace Prize, which is considered one of the most controversial, since many of its winners have been highly criticized: for example, Henry Kissinger (1973); Aung San Suu Kyi (1991); Yasser Arafat (1994); Wangari Mathai (2004) and others. Mahatma Gandhi was never awarded despite having been nominated several times, and Adolfo Pérez Esquivel was not given due recognition in the country, who was awarded it in 1980 in his capacity as “founder of human rights organizations violence to fight against the Military Junta that governed the country” and Carlos Saavedra Lamas, who received him in 1936 for his performance as “President of the Peace Conference that achieved the armistice between Paraguay and Bolivia ending the Chaco War in 1935” and, by a rare coincidence, he was linked to our ancestor Gilberto Lerena, since both married the daughters of President Roque Sáenz Peña; Rosa with Saavedra Lamas and Ciprianita with Lerena. In short, the Nobel Prizes to people and organizations are not transferred by osmosis to their descendants, much less to directors of institutions. Only some old photograph could be inherited.

The lights of the city confuse the darkest characters and tend to appear at the wrong time of the circumstances in which the people live, which, like Argentina, are experiencing very difficult economic and social decades. Perhaps it is the case of Marcelo, that Cecilia Degl’Innocenti (Profile, 4/26/2022) He presents him as “the jurist who seeks to break with 30 years of Argentine absence from the Hague Court” and, which he says, is “prompted by the Foreign Ministry to occupy a place on the court” and that “he has represented the country for the conflict of the paper mills on the Uruguay River and the case of the Fragata Libertad”. The first case, losing, because the Court understood that Uruguay did not violate its obligations to avoid environmental contamination and the Botnia plant continues to produce, as well as others that were added later and, the second, released the frigate after more than 60 days, when the plaintiffs realized that instead of resorting to the Ghana Commercial Court they could have invoked article 95 and 96 of the United Nations Convention on the Law of the Sea before the International Tribunal for the Law of the Sea to free her . Not to mention and forget, his role as advisor to the legal team that lost Bolivia’s claim to access to the sea to Chile.

Cecilia tells us that “in 2023 Argentina will have the possibility of having a judge in the International Court of Justice after more than 30 years of absence of national representation in the most important judicial body at the international level” and, we believe, that It is not a matter of simply incorporating an Argentine into that Court but of doing so with the appropriate one, since while in 1973 the jurist and diplomat José María Ruda joined this Court, who was a member of that body until 1991 and presided over it for the last three years, who had a superlative participation in favor of the Argentine Nation, among other works, with his well-founded allegation and outstanding role that led to the sanction of Resolution 2065 (XX) of the United Nations, a historical political and legal milestone in the Question Falklands; while the aforementioned Marcelo Kohen in 2018 (Infobae, 3/22/2018) proposed to the islanders a plan that, if carried out, among other things, would have allowed them, at the age of thirty, to claim British sovereignty over the Malvinas archipelagos, contrary to the First Transitory Provision of the Argentine National Constitution, the integrity Argentine territory and the majority sentiment of Argentines.

When choosing the profile of the Argentine representatives before the Court, it is very interesting to note that while Ruda had a clear position as representative of national political interests and translated them into clear and committed legal and diplomatic actions, Kohen’s position seems that of a top technician. On the one hand, the writer refers to the fact that Kohen has the support of the national government, however, his statements are revealing regarding his commitment to the Argentine State. When asked by the journalist: How did his candidacy come about? Kohen does not refer to the fact that it was supported by the current government, but rather that it was “a proposal from prominent colleagues and friends from around the world who consider that my presence as a judge would be a positive contribution to the work of the Court…it is not the states that What do you propose to the judges?I am a teacher, not a diplomat or politician, and I think independently…I am notfor such a state or such another”but pro-international law, what matters to me is that the states respect it…My commitment as a candidate is with independence from any state, pressure or interest; put respect for international law above all else… put all the effort and work experience in international law at the service of justice». A whole self-definition of a Technician at the service of technology, in a world where the hegemonic interests of the great powers are becoming more evident every day and, especially, when this technician is part of the advisory body of the Malvinas National Council, whose main function is to lend their legal knowledge to President Fernández, Foreign Minister Cafiero and Malvinas Secretary Guillermo Carmona, who should hope that their contributions are destined to recover the full exercise of Malvinas and not to listen to a theoretical class on public international law at the service of justice.

Strikingly, Kohen mentions in the Profile article the very prominent Argentine jurists Carlos Calvo and José María Drago, both diplomats of Julio Argentino Roca, and omits José María Ruda, ambassador to the United Nations during the presidency of Arturo Illia, whose contributions regarding the Malvinas Question as we saw were relevant and also, among others, one of the most important jurisconsults in Argentina, Professor Hugo Caminos, who among other things was a member of the National Academy of Law and Social Sciences of Buenos Aires and the International Court of the Law of the Sea, who, when he was a member of the Institut de Droit International, coined a phrase derived from article 2 of the Statute of the International Court of Justice that made its moral quality clear: «entry cannot be guaranteed to those who lack moral integrity”. This comes to mind, because international positions should not only take into account the technical skills that, by the way, are absolutely essential, but fundamentally the trajectory of the postulates in favor of the national interests of the candidate that the government promotes. Not who is presented as: I am notfor such a state or that other”.

Marcelo makes it clear to us, when he responds to the journalist, about what his role would be in the Court in the event that Argentina presents the Malvinas issue: «For the Malvinas issue to reach the Court through contentious means, it would be necessary for both States to be agree and accept the jurisdiction of the Court to resolve their dispute. In this regard, Clarín (Natasha N. 12/19/21) is somewhat hesitant: “he has advised the governments of Néstor and Cristina Kirchner to take the British to the ICJ, which he has later advised against due to his own experience” and, his somewhat labile political gaze, since coming from a communist family, commemorates and ponders the “Communications Agreement with the United Kingdom” of 1971 that carried forward the call Argentine Revolution of the de facto president Alejandro Lanusse, where he confesses that “the Agreement contributed significantly to the prosperity of the islanders» (Profile, 6/29/21), the same that Macri promoted with the Foradori-Duncan Pact in 2016, a pact that is still in force despite his advice to the Malvinas National Council.

It is clear that the self-appointed Marcelo Kohen is not a politician or diplomat, nor has he been a judge, he is a teacher of public international law and that is how Argentina is doing in its erratic policy to recover the full exercise of sovereignty in the Malvinas.

It may interest you: Did Brazil spy on Argentina during the Falklands War?

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Access to the International Court of Justice regardless of the national interest