Brazil, Honduras, the International Court of Justice, and the Future of Hemispheric Unity

By IAR Staff Writer
November 8, 2009

It is a defining feature of modern diplomacy that embassy staff enjoy special privileges when engaged in the business of their missions abroad. It is an age-old practice, and one that can trace a lineage back to ancient Persia, Greece, and Rome.

But these privileges have also been a subject long mired in controversy. Privileges are often abused, and sometimes with sinister intent. Philip II, King of Spain for the late 16th century, was notorious for using his ambassadors as agents to weave conspiracies, coordinate the work of assassins, and act as agents for his own Machiavellian designs.

In Rome, a city congested with diplomats, civil affairs were at times incapable of any order or civil harmony. Political dissidents, and even common criminals, could evade the justice of Roman law by seeking quarter in a foreign embassy. So intolerable had the situation become, that in the year 1693 Pope Innocent XII threatened to expel all foreign missions if they did not agree to specific qualifications on their right of quarter.

So it was then, and may still be, that ambassadors were associated more with agents of subversion and political intrigue rather than passive representatives of the governments from whom they received their charge. For this reason, disputes over abuse of diplomatic privilege have historically been a point of high controversy. The occasion has never been entirely absent. But the dispute between Brazil and Honduras has given opportunity for the larger political questions to be reconsidered from their dormancy.

Last week, the Honduran ambassador to the Netherlands filed an application with the International Court of Justice (ICJ or the Court) to bring suit against Brazil on charges that sheltering Manuel Zelaya amounts to illicit interference in the internal affairs of Honduras. According to the ICJ press release (found here),

the “dispute between the Republic of Honduras and the Federative Republic of Brazil relates to legal questions concerning diplomatic relations and associated with the principle of non-intervention in matters which are essentially within the domestic jurisdiction of any State, a principle incorporated in the Charter of the United Nations”.

In particular, the document indicates that “[Mr. José Manuel Zelaya Rosales and] an indeterminate number of Honduran citizens”, who have been taking refuge in the Brazilian Embassy in Honduras since 21 September 2009, “are using [its] premises . . . as a platform for political propaganda and thereby threatening the peace and internal public order of Honduras, at a time when the Honduran Government is making preparations for the presidential elections which are due to take place on 29 November 2009″. It is stated that “[t]he Brazilian diplomatic staff stationed in Tegucigalpa are allowing Mr. Zelaya and his group to use the facilities, services, infrastructure and other resources in order to evade justice in Honduras”.

The suit raises fundamental questions about what constitutes legitimate interference in another state’s politics and whether diplomatic prerogatives can be used for these purposes. It is a matter that gets directly to the heart of problems in modern international law and implicates momentous issues of foreign intervention, sovereignty, and the boundaries of diplomatic privilege.

But the suit relates not only serious issues within the law, it also touches on matters of high politics. Of course the suit before the ICJ is submitted to the Court as a legal, not a political question. So, whether Honduras can win its case or not will depend, in the first instance, on the details of interpretation of the Vienna Convention of Diplomatic Relations and other legal authorities. In the background, political considerations will certainly loom large.

This is most apparent in the venue selected for considering the suit. The choice of the ICJ is full of political symbolism; not so much for where it is, but for where it is not. The Honduran government did not submit the case to an American court, or an American commission, or an ad hoc American tribunal. Instead they brought the suit to the ICJ, located at The Hague, in the Netherlands.

The Micheletti government went out of its way to bring the suit to Europe. What to make of this?

It has long been a principle of American politics to resolve major controversies within the Western Hemisphere and to eschew foreign interference: the Montevideo Treaty of 1933 on the Rights and Duties of States, the Rio Treaty of 1947 for American Reciprocal Assistance, and the Charter for the Organization of American States (OAS) of 1948—these represent the high points in Hemispheric solidarity.

But the integrity of hemispheric politics was often more sound than substance. The Cold War introduced new fissures into the hemisphere's politics. And the situation was not helped by U.S. inaction during the Falklands War—taking the side of Britain over Argentina—which was considered a betrayal of American solidarity and an implicit repudiation of its treaty commitments.

The Honduran-Brazil dispute will be the first instance where a major political controversy was referred to a legal body outside the continent. By itself, it does not seem a major development. The question is whether it sets precedent for future inter-American disputes?

It would be reckless, at this time, to overstate the significance of the case. The dispute between Honduras and Brazil is only recently submitted. It is very possible the Court will decide not to review the case, to say nothing of deciding in favor of Honduras or demanding that the country is entitled to satisfaction.

Nevertheless, one must remember that aphorism: from little acorns large oaks grow. It may be that the example of Honduras will give heart to future American malcontents and pariah governments. The former Cuban-Soviet entente is proof that one small American state can defy other countries in the Western Hemisphere. Of course the Honduran situation is different, but if Honduras can find success abroad, the consequences for Western Hemisphere politics could be plenty.

The real significance of the Brazil-Honduran dispute is not the direct effects it will have on hemispheric politics, but rather what it says about its present health. If the OAS is incapable of mediating serious disputes, if the institutions for pacific arbitration go unutilized, if inter-American rivalry becomes the norm rather than the exception, if outside states and organization have license to interfere in major inter-American disputes, then it may be confirmation that the project of Simon Bolivar and James Blaine to create a united hemisphere is finally at an end. If so, one would expect the institutions of hemispheric solidarity will slowly pass into obsolescence.

The author of this article wishes to remain anonymous.

Disclaimer: This photo is being used under licensing by creative commons. The original source can be found here: http://www.icj-cij.org/presscom/index.php?p1=6&p2=5&p3=-1&p=69. If you have any objections to the use of this photo, please contact iar@gwu.edu.

Comments

It's difficult not to disagree with the author's statement that "the Honduran-Brazil dispute will be the first instance where a major political controversy was referred to a legal body outside the continent." It seems as if he is completely unaware of a very similar case, concerning Haya de la Torre, between Colombia and Peru, from the late 1940s. Other major political controversies between American States brought before the ICJ include, apart from numerous maritime boundary disputes, the illegal intervention of the United States in Nicaragua, the case concerning access to consular services by Mexican citizens sentenced to death in the United States, the case concerning the allegedly illegal aerial herbicide spraying by Colombia in Ecuador, and the case concerning pollution caused by pulp mills between Uruguay and Argentina.

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