1782 to Watch: In re Republic of the Gambia

Burmese protesters outside the Peace Palace

You may be interested in a § 1782 application just filed in Washington by the Republic of the Gambia, which is prosecuting a case against Myanmar in the International Court of Justice concerning the situation of the Rohingya people. This brings to mind my last visit to the Hague in December, when I arrived early in the morning at the Peace Palace for a talk I was giving at a Hague Conference event. There were large crowds chanting slogans and waiving flags outside the Peace Palace grounds. Surely they weren’t there out of an interest in the Service Convention? It turned out they were Burmese people there to support their President, Aung San Suu Kyi, who was there to present Myanmar’s case before the ICJ. The photograph that goes with this post is my photo of the demonstrators as I was entering the Peace Palace.

Anyway, the application is interesting for two reasons. First, I could be wrong, but I cannot recall another § 1782 case seeking discovery for use in an ICJ case. The ICJ, it would seem, is an “international tribunal,” and thus within the scope of the statute, but it will be interesting to see whether Facebook, the respondent, makes an issue of that point. Second, I note that the Gambian state itself is the applicant, which raises a problem I’ve commented on before: in my view a sovereign cannot be an “interested person” for purposes of the statute, because we know from the precedents that a sovereign cannot be a “person” from whom discovery may be sought, and the word “person” must have the same meaning in both instances. The better practice is to have the foreign state’s attorney general or a similar official act as the applicant. Note that the memorandum, perhaps on purpose and perhaps not, evades this point by characterizing Gambia as an “interested party” rather than an “interested person,” which is a curious misquotation of the statute.

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