The International Court of Justice is the principal judicial organ of the United Nations and is, in my view, the principal organ adjudicating disputes between States. Its composition responds to criteria that are expressly established in the Statute of the court itself. In this context, the death of Antonio Cançado Trindade, Brazilian judge of the International Court of Justice, has opened the need to hold an election.
It is in this context, and after a debate on a potential Chilean candidacy of Claudio Grossman – which did not have the support of the Government – it was that the Foreign Ministry announced that it will support the candidacy of one of the two Brazilian candidates, more precisely, the one chosen by the government of Jair Bolsonaro. Another option was to support Marcelo Kohen, an Argentine internationalist, who is recognized for his academic quality and proven prestige in the world of international law. It is precisely this point that I intend to address.
Chile’s decision and refusal to support Dr. Kohen are based on a series of arguments that demonstrate ignorance and are evidenced as fallacies, which discredit the work of our Foreign Ministry. Namely:
It has been pointed out that it is not possible to vote for the trans-Andean candidate by virtue of the disputes that could be opened with Argentina, ignoring – in this regard – that the Treaty of Peace and Friendship – and that governs relations between these countries – establishes that any dispute between the Parties must be resolved by the arbitration mechanism and not by judgment of the International Court of Justice.
This ignorance is enhanced by a second argument and that – in essence – is fallacious, and that is none other than that which establishes that the country of the deceased judge can choose his “replacement”. Supporting this vision shows ignorance of Article 2 of the Statute of the International Court of Justice itself, which refers to the professional and moral quality of candidates, with total independence of their nationality. Nor is it certain that “replacement” by a national is a “tradition” established in the International Court of Justice, so this argument is nothing more than an instrumental interpretation.
Another argument alleges that Marcelo Kohen was Bolivia’s advisor in the matter of the Obligation to Negotiate a Sovereign Exit to the Pacific Ocean. The truth is that Professor Kohen was not part of the team that defended the Bolivian position, and like every internationalist academic he had a vision based on legal arguments. Moreover, the Court’s judgments are final, so this matter with Bolivia has already been resolved. To think that this position shows a potential animosity towards Chile is to ignore the professional and moral quality of the Argentine candidate.
Finally, and just to show the incoherence of the Government when it comes to justifying its sovereign decision, it is interesting to remember that President Boric has criticized Bolsonaro for numerous reasons, one of them being his scarce vision regarding Latin American integration. These criticisms, among other reasons, have caused Bolsonaro to criticize President Boric back and forcefully, evidencing a spirit that has meant that Brazil – and to date – has not accepted the diplomatic credentials of the ambassador proposed by the President. Well, despite this, Chile decided – at the time – to support the candidate supported by the current president of Brazil.
It is in this context, and making an objective comparison of the professional and academic history of the three candidates, as well as their visions, that the refusal not to support the candidacy of Professor Marcelo Kohen, who has always defended Latin American unity and adherence to regional norms and traditions of International Law, is not understood. factors that should be the justifying support of the national vote.
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