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182 Cards in this Set
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Article 38 Statute of the the ICJ |
statute which outlines the ways in which the ICJ will apply IL to it's cases a) international conventions (treaties) b) international custom c) general principles of law d) provisions of Article 59, judicial decisions, and expert opinion
does not inhibit the ability to decide a case ex aequo et bono |
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ex aqueo et bono |
both parties agreeing to not include some source in deciding a case for the ICJ |
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United Nations Charter Articles 10, 11, 13 |
UN general assembly and other international organizations may adopt non-binding resolutions (soft law) and binding treaties which may codify existing law or initiate the development of new law |
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United Nations Charter Article 25 & Chapter VII |
UN security council (15 states) has no general power to make law but can adopt binding resolutions relating to matters of peace and security |
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intergovernmental conferences |
conferences that can negotiate and adopt treaties and declarations which may iniate development of new law
e.g. Vienna Conference, international environmental law, and 3rd Conference on Law of the Sea |
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International Law Commission |
codifies and develops general international law: limited law-making function, but authoritative restatement and clarification on exiting law |
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custom |
a general practice accepted as law, binding on all states participating or acquiescing in the general practice, most important party of international law |
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international conventions (treaties) |
binding only on the parties thereto, bilateral or multilateral, and is most important tool for making international law |
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general principles of law |
e.g. in national law or in declarations, borrowing from national legal systems |
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judicial decisions, ILC reports, and scholarly writings |
do not make law but provides authoritative evidence of the law |
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hierarchy of sources of international law |
custom and treaties at the top, but may change each other
treaties may change/replace, codify, or coexist with customary rule
treaties may be modified or invalidated by customary rule |
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Malta-Libya Continental Shelf Case |
evidence of changing/replacing customary rule
e.g. customary law vs. 1982 Convention on Law of the Sea |
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Gabcikovo Case |
evidence of treaty being modified by and codifying customary rule
Slovakia and Hungary dispute over Slovakia built dams, 1977 Budapest Treaty as goal, which should be negotiated between both states |
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customary law |
the description given to any widespread and consistent practice which states believe is required by international law, or which they intend to make into law |
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state practice |
a requirement for something to be considered customary law, consists of inter alia diplomatic claims, administrative action, national laws, & law enforcement action
does not have to be universal, practice of few relevant states can be enough if no objections (international response important)
e.g. 2012 Jurisdictional Immunities Case & 2010 Pulp Mills Case |
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state practice (cont.) |
consistency of practice: must be 'constant and uniform' (Lotus Case) and 'settled', can be substantial if not wholly complete, must be more outstanding w/ positive obligations
generality of practice: practice must be common to a significant # of states but not all states need to participate (qualifications when states interests are specially affected, persistent objector and local custom)
duration of practice: length of time needed no uniform |
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opinio juris (law-making intent) |
a belief that a practice is legally obligatory or the intention to treat it as legally obligatory & can be demonstrated by claims of states, declarations at UN, resolutions of interstate bodies, or treaties
stronger the practice, less need for opinio juris, and vice versa
importance stated in Lotus Case, North Sea Continental Shelf Case, and Jurisdictional Immunities of the State Case |
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Lotus Case |
stated that sovereign states may act in any way they wish so long as they do not contravene in a explicit prohibition (1927) |
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1945 Truman Proclamation on Continental Shelf |
the US wanted oil off the gulf, but after a certain couple of miles, it is international waters that can be exploited by all, claimed sovereign rights to use the continental shelf, done unilaterally
not protested by anyone, and thus became ‘international law’, one state can change the law by its practice as long as others follow suit and don't protest |
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Nicaragua Case |
decided w/ Nicaragua against US, who supported Contras in rebellion against their government
the UN does not allow a use of force except in a case of self defense, signed by all members of UN as a treaty, even if the UN charter is not binding, it created customary law, which would be binding to the US and Nicaragua
states had been reiterating the rule, universal opinio juries |
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Disadvantages of customary law |
Uncertainty: May be difficult to identify or prove Slowness: May take time for state practice to coalesce around a new rule Fragmented: May apply only to certain states or regions Vulnerable: May be undermined by persistent objection and can be changed by emergence of new practice |
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treaties |
Want to make law on a generally agreeable basis, if you make reservations and a majority of states ratify, even those who do not ratify will regard it as customary international law, empowers weaker states against stronger states (US v Naru/Tuvalu)
Negotiating a multilateral law-making treaty is a useful method for co-ordinating state practice and providing evidence of opinio iuris, but it will only create new rules of general law binding on all states if it is then supported by state practice. This may take time |
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treaties (cont.) |
Treaties may also help to create new rules of customary law binding on all states if:
there is law-making intention, and the terms of the treaty are of "a fundamentally norm-creating character such as could be regarded as forming the basis of a general rule of law." (1969 North Sea Continental Shelf case), and
the treaty is sufficiently widely reflected in the practice of parties and non-parties (1969 North Sea Continental Shelf case).
"the practically universal participation in [the Geneva Conventions on Armed Conflict] shows that all states accept…the prohibition of torture…..this participation is highly indicative of the attitude of states to the prohibition of torture." (Prosecutor v Furundzija, para 138)
But, the treaty need not necessarily be in force to have law-making effect: eg 1982 UN Convention on Law of the Sea (1985 Malta-Libya Case): enough if supported by consensus and widely implemented by parties and non-parties |
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Soft Law |
a written text containing what look like rules/principles of law that’s been adopted through a negotiation process, holds the law of states, but is not official
used to describe instruments which are normative in substance but not in legally binding form: e.g. certain UNGA resolutions, UN conference declarations, codes of conduct, guidelines etc adopted by international organizations. |
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legal significance of soft law |
codify existing customary law
lead to emergence of new state practice or negotiation of new treaty
provide evidence of opinio juris
provide authoritative guidance on interpretation of a treaty
serve as agreed standards for implementation of a treaty |
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codification |
the process of experts analyzing a subject and coming up with a text restating the law that are accepted by everyone and change law where states want it to be change, or filling in areas of the subject that are ambiguous, restating & reforming law
job of the international law commission
usually results in some element of law-making: need to fill in gaps, clarify uncertainties, change outdated rules: e.g. not every provision in 1969 Vienna Convention on the Law of Treaties necessarily customary law when adopted: subsequent use by governments and courts determines whether novel provisions are accepted as law or not. |
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general principles of law |
can sometime be found in treaties, but mostly borrowed from national law
enables the interpretation and application of law in a reasonable way by drawing upon other legal systems
e.g. non-discrimination, fair hearing, etc. |
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judicial decisions |
ICJ decisions have no binding force on non-parties (Article 59)
not binding, but authoritative evidence; cannot afford to ignore them
will usually stick to past decisions (2008 Croatian Genocide case)
law often originated in ICJ |
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ius cogens (peremptory norms of international law) |
"super rule" not able to be opted out of i.e genocide, use of force, self-determination, torture
stated in Article 53 of the 1969 Vienna Convention
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effects of ius cogens |
non-derogation: not even in time of national emergency
Treaty invalidity (VC Arts. 53, 64), but reservations may still be allowed (Congo v Rwanda case)
Non-recognition of inconsistent national law (Namibia case)
Erga omnes status: any state can complain (Bosnian Genocide Case)
But: consent still required for ICJ jurisdiction (Congo v Rwanda case) and state immunities still apply (2012 Jurisdictional Immunities Case) |
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North Sea Continental Shelf Case |
ICJ case between Germany and the Netherlands/Denmark
rule of equidistance v. equity, overruled Article 6 of 1958 Continental Shelf bc not sufficient duration of consistency of state practice
Germany also did not ratify |
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persistent objector principle (i.e. Anglo-Norwegian Fisheries Case) |
any state that objects to an emerging customary norm consistently and early may not be bound by it
"two mile rule" does not have intl. legal authority and Norway has always consistently opposed it, and UK had no long-held opposition to Norway's base-lines |
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legal personality |
an international legal person is capable of possessing international rights and duties and it has the capacity to maintain its rights by bringing international claims, who is competent to act according to international law
historically only possessed by states, but intl. organizations, individuals, etc. can have more limited international legal personality |
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1949 Rights and Duties of States by the International Law Commission |
the right to independence was indicative of statehood, right over all citizens and to own government, and the right to a role, equality, treaties, and consent within international law, subject only to constraints of international law |
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Theories of Statehood (Formal v. Substantive) |
Formal: set of criteria to be met, made at the 1933 Montevideo Convention on the Rights and Duties of States, “the states as a person of international law should possess the following qualifications..."
Substantive: criteria of formal met in addition to if it is legitimately perceived as a state |
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Qualifications for Formal Statehood |
a permanent population: no min or set quantity, nationality has been historically important but this was severed in the 1990s, issues of competing nationality (UN Draft Articles on Nationality of Natural Persons in Relations to Succession States, Right to Nationality: always the choice/option of nationality when a new state succeeds)
a defined territory: no min or size, or required to be contiguous, should be based on factual possession, can be contested boundaries so not necessarily exact (e.g. North Sea Continental Shelf Cases), territory is a flexible idea
government: a state has a government with “effective control”, not in terms of a central public authority, but if it has control over all territory/persons within its boundaries, have to distinguish between the state and the government, when does a state cease to exist? (e.g. Syria, Crimea, etc.)
capacity to enter into international relations: no longer an exclusive prerogative of states, but is necessary to be fulfilled, means conducting treaties, engaging with the UN, WTO, WLO, etc., largely dictated by other criteria |
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Additional Criteria for Formal Statehood |
independence: formal/actual independence? linked with effective control, strong enough to assert itself in its territory without foreign assistance
sovereignty (+independence): territorial and jurisdictional sovereignty, coherent frontiers and the state is not subject to the authority of another state or a group of other states under international law, incidence of statehood
permanence: shows that the requirements for statehood must be permanently established, not temporary
willingness to observe international law: expected to accept IL that exists, especially customary, in addition to treaties
a certain degree of civilization: used in the mid-20th century, now means an established system and infrastructure of government
recognition: to be discussed below
legal order: existence of civilization, recognizable rules the govern society |
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Recognition & Statehood |
the formal acknowledgement by one state that another has all the proper requirements of statehood, and is willing to recognize the other as such
does not imply willingness to enter into IR or to any specific kind of government |
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Constitutive Theory of Recognition |
according to this theory, recognition is an additional requirement for the creation of the state
differing opinions by states can create difficulty and chaos, imperfect communication
in practice at the beginning of the 20th century, but not in contemporary times |
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Declaratory Theory of Recognition |
recognition plays no formal role in the creation of a state, recognition is a political act “the formation of a new State is a matter of fact, and not of law” |
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Statehood and the UN |
membership (Article 4), dispute settlement (Article 32 & 35), can not make states but are concerned with them and their dealings
observer status: international entities, non-member observer states (currently Holy See, and Palestine) |
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the Kosovo Question |
declared independence in 2008, 110 States recognize Kosovo, ICJ Advisory Opinion (is Kosovo’s unilateral treaty in accordance w/ international law), Serbia saw that the treaty is a use of force against its territorial integrity, concludes that it is not in violation of IL but didn’t officially ask if it was a use of force so no ruling on that |
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the Palestine Question |
1988 Palestinian Declaration of Independence, 2013 UN Non-Member Observer State Status, 134 States recognize |
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Modes of Recogition |
diplomatic relations, consular relations, treaty relations, trade relations |
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Recognition in National Courts |
a state will only be able to possess rights and obligations in national law if it is recognized by the government of that state
“the executive is concerned with the external consequences of recognition vis-a-vis other states. the courts are concerned with the internal consequences of it vis-a-vis private individuals” |
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Non-State Actors with International Legal Personality |
international organizations, Individuals, non-governmental organizations, transnational corporations and communities
important bc shifting of sovereignty away froms states, growth in roles of IOs in the organization of the economy, re-emergence of sub-state entities, right to redress against state breaches of IL |
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International Organizations |
created by states, powers defined by states, generally through an initial charter of some sort operate under international law, only created when states benefit from international organizations (collective often work better), don’t want to give them to much power but more power means more success and greater ability to facilitate bargaining/negotiation
functions: perform a specific function, forum for law-making, speech (development of soft law) |
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the United Nations and ILP |
Reparations for Injuries Suffered in the Service of the United Nations 1949 ICJ Advisory Opinions: first time ILP given to an IO, contingent on the power states gave it when it was created |
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International Labor Organization (1919) |
promote and realize standards and fundamental principles and rights at work, create greater opportunities for women and men to decent employment and income
Tripartite UN Specialized Agency: orldWstates, employers, worker representatives, with functions carried out through International Labor Conference, ILO Governing Body, International Labor Office |
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World Trade Organization |
deals with the rules of trade between 160 state parties, administers WTO trade agreements, forum for trade negotiations, trade disputes, technical assistance for developing states, cooperation with other IOs |
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Vienna Convention on the Law of Treaties Between States and International Organizations |
1986, not yet in force, 31 state parties , 12 IO parties Article 1: establishing an IOs consent to be bound on the international plane Article 66: dispute referral to the ICJ (advisory opinion under ICJ statute) |
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Individuals and International Legal Personality |
protection vis a vis the state (nationality)
accountability for international crimes (piracy, post-WWII crimes tribunals, interim crimes tribunals like Rwanda, etc.)
human rights: established through international treaties, when states consent for claims of ind. are valid in intl. courts, investment disputes |
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Non-Governmental Organizations and ILP |
not created by states, recognition at the UN level (ECOSOC & HR Council)
capacity to bring claims: Article 34 of the ECHR, “may receive applications from any person, nongovernmental organization…”
main contribution is their role as the mouthpiece for different causes, accredited to be able to participate in discussions about their area of expertise and thus have a role in the development/discussion of IL
create draft ideas of law |
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Transnational Corporations and ILP |
internationalized contracts (trade treaties, other contracts, etc.): indicates that IL is going to be the governing law and therefore bestows some limited ILP on those involved
2008 Protect, Respect, and Remedy Framework and Guiding Principles: closing loopholes in law, voluntary social responsibility regimes TNC uptake of the regimes, state duty to protect - corporate responsibility to respect - access to remedies (state and corporate) |
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Communities and ILP |
e.g. European Union, communities in exile, etc. |
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jurisdiction |
refers to the power of a state to affect under international law the conduct of other, by measures of regulation, adjudication or enforcement |
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criminal v. civil jurisdiction |
criminal: state against individual
civil: individual against individual |
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prescriptive jurisdiction |
the ability of a state to prescribe laws that affect individuals (i.e. legislative) |
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territorial jurisdiction (prescriptive) |
refers to the ability to prescribe measures within the territory of the state
when can a state extend its jurisdiction outside its territory?
“though it is true that in all systems of law the principles of the territorial character of criminal law is fundamental, it is equally true that all or nearly all of the systems of law extend their action to offenses committed outside the territory of the state which adopts them, and they do so in ways that vary from state to state” -Lotus Case |
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effects doctrine (objective territorial principle) |
the idea a state’s (prescriptive) jurisdiction extends to which were committed out-with the territory of a state but whose effects are felt within the territory of a state
DPP v. Doot (1973) |
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nationality (active personality) jurisdiction
(prescriptive) |
according to this principle, a State has jurisdiction over its nationals when they commit a crime anywhere in the world
Offenses Against the Person Act 1861
Sexual Offenses Act 2003 |
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passive personality jurisdiction (prescriptive) |
according to this principle, a state has jurisdiction over all offenses committed against its nationals, wherever they are in the world
the principle has its roots in the duty of states to protect its nationals abroad
the principle is highly contentious given it would extend the power of a state to legislate extraterritorially with few limits
the argument against: it simply goes too far
“it is evident that this claim is at variance with the well-settled principle that a person visiting a foreign country, far from radiating for his protection the jurisdiction of his home country, falls under the dominion of the local law and, except so far as his government may diplomatically intervene in case of a denial of justice, must look to that local law for his protection.” Dissenting Opinion in the Lotus Case |
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protective jurisdiction (prescriptive) |
this principle is similar to the passive personality principle in that it allows a state to protect its national security interests that are affected by acts committed out-with its territory
like the passive personality principle, it is highly contentious given it would extend the power of a state to legislate extraterritorially with few limits |
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universal jurisdiction (prescriptive) |
according to this principle, states may legislate against certain acts, committed anywhere in the world, that are deemed to be contrary to the common values of the international community as a whole
it is generally accepted that the principle applies, inter alia, to piracy, genocide, war crimes, and crimes against humanity
e.g. In Re Piracy Jure Gentium (1934) & War Crimes Act (1991) |
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enforcement jurisdiction |
the ability of the state to actually execute its law
generally speaking enforcement (police) jurisdiction may not be exercised in the territory of another state
police enforcement jurisdiction: arrest and incarceration
judicial enforcement jurisdiction: court to exercise its power over an individual |
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extradition |
the process of transferring a suspect from he country in which he is located to a country in which he has been charged with an offense
usually done on the basis of a treaty
may be limited by human rights law |
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Case of Adolf Eichmann |
case in which a former Nazi and organizer of the Holocaust who fled to Argentina, he was kidnapped from Argentina by Israelis and brought in front of a war crimes tribunal and was found guilty
questions of jurisdiction over tribunal and kidnapping |
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the Law of the Sea |
the modern law of the sea is set out in the 1982 United Nations Convention on the Law of the Sea (UNCLOS), also known as the 'constitution of the oceans', which has 166 State parties, and most of its provisions are widely accepted as reflecting customary international law
generated state practice and opinio juris, declaratory of customary international law (e.g. US hasn’t ratified but still follows it as customary law) |
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types of jurisdiction at sea |
water column
ocean floor |
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territorial sea |
the modern territorial sea extends up to 12 nautical miles from the coast (UNCLOS, Art. 3), first time the rule was codified
the coastal state enjoys sovereignty over the water column, seabed and airspace in the territorial sea, subject to other rules of international law |
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innocent passage |
exception to the territorial sea article, set out in UNCLOS, Art. 17
must be “continuous and expeditious”
must not be “prejudicial to the peace, good order or security of the coastal State”
submarines are required are required to navigate on the surface
the coastal state may suspend innocent passage temporarily in specified areas for the protection of its security
aircraft do not have a right of innocent passage |
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right of transit passage through international straits |
“transit passage means the exercise… of the freedom of navigation and overflight solely for the purpose of continuous and expeditious transit of the strait between one part of the high seas or an exclusive economic zone and another part of the high seas or an exclusive economic zone” (UNCLOS, Art. 38)
transit passage applies to ships and aircraft
submarines may transit below the surface
transit passage may not be suspended |
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exclusive economic zone (EEZ) |
“the EEZ is an area beyond and adjacent to the territorial sea, subject to the specific legal regime established in the Part, under which the rights and jurisdiction of the coastal State and the rights and freedoms of other States are governed by the relevant provisions of this Convention” (UNCLOS, Art. 55)
“the EEZ shall not extend beyond 200 nautical miles from the baselines from which the breadth of the territorial sea is measured” (UNCLOS, Art. 57)
some rights to the coastal states, but limited rights |
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coastal state rights in the EEZ |
sovereign rights over living resources (fish)
sovereign rights over non-living resources
sovereign rights with respect to other activities for the economic exploitation of the zone, such as the production of energy
jurisdiction over marine scientific research
jurisdiction over the protection and preservation of the marine environment
jurisdiction over artificial islands |
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rights of other states in EEZ |
freedom of navigation
freedom of overflight
freedom to lay submarine cables and pipelines
freedoms to carry out other internationally lawful uses of the sea |
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freedom of the high seas |
freedom of navigation, overflight, fishing, to lay submarine cables and pipelines, to construct artificial islands and other installations, marine scientific research |
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freedom of navigation |
all vessels have a right to freedom of navigation on the high seas. this means that they are subject to exclusive flag state jurisdiction, subject to certain exceptions |
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flag state duties |
flag states are under an obligation to exercise jurisdiction and control over vessels flying their flag
the international community works together through the International Maritime Organization (IMO) to set minimum standards for shipping |
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Piracy (UNCLOS, Articles 100-107) |
under exclusive flag state jurisdiction, an act of violence of one vessel against another on the high seas or in EEZ |
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“Unauthorized Broadcasting” (UNCLOS, Art.109) |
sometimes called pirate radio, exception to exclusive flag state jurisdiction on the high seas |
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Hot Pursuit (UNCLOS, Article 111) |
“good reason to believe” that the ship has violated the laws and regulations of the coastal State…
pursuit must be commenced when the vessel is within the jurisdiction of the coastal State
pursuit may only commence “after a visual or auditory signal to stop has been given at a distance which enables it to be seen or heard by the foreign ship”
pursuit must be uninterrupted
the right may only be exercised by warships or military aircraft or other ships or aircraft clearly marked and identifiable as being on government service
the right ceases as soon as the ship pursued enters the territorial sea of another State |
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use of force in the arrest of vessels |
“although the convention does not contain any express provisions on the use of force in the arrest of ships, international law requires that the use of force must be avoided as far as possible and, where force is unavoidable, it must not go beyond what is reasonable and necessary in the circumstance” -M/V Saiga, ITLOS |
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The Srebrenica Massacre (1995) |
the prosecution of individuals may not be enough to satisfy a state
Bosnia and Herzegovina v. Serbia and Montenegro (case concerning the application of the genocide convention)
Serbia & Montenegro supporting the genocide in Bosnia through money, supplies, etc. |
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Structure of an Unlawful Act |
1. existence of an international obligation not to act in a particular way
2. existence of an act in a breach of that obligation
3.attribution
4. the state was at fault (disputed)
5. damage and causation (disputed)
6. absence of circumstances precluding wrongfulness |
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Existence of an Obligation not to Act |
sources of international obligations: treaty, custom, judicial decisions, binding decisions by international organizations (security council)
obligation must be binding at the time of the act
binding another state? (but cf. security council resolutions) |
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Examples of Existence of an Obligation not to Act |
duty not to interfere in the internal affairs of another state (e.g. Friendly Relations Declaration ), including respect for territorial integrity, respect for State property, and respect for the flag
breach of treaties (pacta sunt servanda), outlines in article 26 of the Vienna Convention on the Law of Treaties
duty not to mistreat foreign nationals, including duty to give “due process of law” to aliens, to punish those who mistreat foreign nationals, and not to conduct an unlawful expropriation |
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Existence of an Unlawful Act |
Draft Article on Responsibilities of States 12
standard of assessing the unlawful act: international law standard, domestic law irrelevant |
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Modes of Acting of an Unlawful Act |
performance of an unlawful act
aiding of assisting the commission of a wrongful act, which is wrongful if: knowledge of the circumstances of the wrongful act, state did aid/assist, act would have been wrongful if committed by that State |
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Attribution |
was the state the real author of the act? |
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attribution w/ organs of the state |
article 4 DARS (conduct of state organ to be considered conduct of the state), including organs of ‘territorial units)
classic examples such as police, armed forces, etc
the state organ must have acted in that capacity
ultra vires acts: article 7 (“even if it succeeds”), what if lack of competence is manifestly apparent? |
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attribution w/ private individuals |
general rule: no attribution to the state, with the exception being individuals factually exercising governmental authority because a domestic law empowered them to do so (privatized jails) or they in the absence of the official authorities
exception: conduct controlled by the state (Nicaragua Case) |
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attribution w/ revolutionaries |
in general have no attribution to the state, but if the revolutionaries form a new government of a new state have different considerations (Art 10) |
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attribution w/ later state acceptance |
if the state later accepts or approves the acts of the rebels considerations change, Art 11 (Tehran Hostages Case) |
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attribution in the case of Srebrenica |
determination of subordination (more Bosnia than Serbia), but promotion an salary from Serbia (given less weight)
determination of dependence on authority, or complete reliance of the individuals on a state
direction of control by Serbia? |
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A Fault Requirement |
is there strict liability or is fault required?
state practice tends to favor strict liability |
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Objective/Risk Theory in Fault Requirement |
the liability of the state is strict
neer claim (1926): american citizens killed in Mexico, claimed had not properly persecuted the perpetrators of the act
caire claim (1929): french national accosted by Mexican soldiers, and shot, only need an objective standard, not intent |
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Subjective Theory in Fault Requirement |
at least negligent conduct on the part of the state is to be required
e.g. AAPL v. Sri Lanka (1991), Corfu Channel Case (ICJ, 1949): whether the state did know or should of known where the mines were |
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Mediating Theories in Fault Requirement |
e.g. Dixon, jus cogens possessing strict liability (jus cogens v. commerical treaties)
international law commission: no general rule, breach may depend on subjective element (such as Genocide)
in other cases would be objective |
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Damage and Causation |
damage: not mentioned in DARS (Article 12 states it's not required)
causation: when damage does exist, a casual link between the unlawful act and the damage is necessary
The I'm Alone, Canada v. US (1935): importance of unlawful act itself, Canadian rum-smuggling vessel sank by American ship, Canada really the injured state? |
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Absence of Circumstances Precluding Wrongfulness |
codification in the Final DARS: Chapter V, Art. 20-27
Art. 26 DARS: continued wrongfulness of an act which is not in conformity with a jus cogens obligation |
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Circumstances in Absence of Circumstances Precluding Wrongfulness |
consent, Art. 20 (‘valid consent’): differentiation consent v. waiver, validity, act only covered to the extent of consent
self-defense, Art. 21: reference to Art. 51 UNC (inherent right of self defense)
force majeure (Art 23): material impossibility, due to irresistible force or unforeseen event; not sufficient if it has simply become more difficult to perform obligation
distress (Art 24): saving author’s life/lives of persons under author’s care
necessity (Art 25): safeguarding essential interest against grave and imminent peril, ex. Torrey Canyon Incident 1967 |
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Countermeasures (as a circumstance precluding wrongfulness) |
one wrongful act was committed because another state committed an unlawful act, and is thus justified (Art. 22 DARS) |
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Conditions of a Countermeasure |
a precluding wrongful act against the injured State
addressee of the countermeasure is the responsible State
takes countermeasures to induce responsible state to comply with obligation
limited to temporary non-performance
proportionality (Art 51 DARS): naulilaa case (not ‘out of all proportion’), air services arbitration (1978) importance of questions of principle to be taken into account/approximate appreciation
prohibition on certain effects of countermeasures (certain protected interests such as human rights or diplomatic immunity)
notification (Art. 52): exception being urgent countermeasures to protect rights
no countermeasures if dispute is pending before court or tribunal (Art 52(3) DARS)
termination (Art. 53 DARS) |
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Structure of an Unlawful Omission |
existence of an international obligation to act in a particular way: existence of an international obligation to act in a particular way which the State did not act on (e.g. duty to protect property, prosecute criminals, protect embassies, etc)
the state did not act in this particular way
fault requirement (disputed)
imputability
damage and causation (disputed)
absence of circumstance precluding wrongfulness
e.g. Srebrenica |
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Legal Consequences of Unlawful Act |
continued duty of performance (art 29 DARS)
cessation and non-repetition (art 30 DARS)
reparation (art 31, 34-39 DARS) |
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Continued Duty of Performance (as Legal Consequences of Unlawful Conduct) |
Article 29 DARS
state must still perform the obligation that was breached |
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Cessation and Non-Repetition |
Article 30 DARS
requirements for cessation: wrongful act of a continuing character, violated rule still in force
assurance, guarantees for non-repetition: ‘if circumstance so require’, e.g. Dogger Bank Incident 1904 & Seizure of the Herzog and the Bundesrath 1899 |
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Reparation |
Article 31, 34-39 DARS
restitution (art 35 DARS): exception if restitution is materially impossible or is ‘wholly disproportionate’ to costs
monetary compensation (art 36 DARS): Cosmos-954, Soviet satellite crashing on Canadian territory 1978 w/ nuclear reactor ending in monetary settlement 1981; Lusitania case use of possibility of non-material damage
satisfaction (art 37 DARS): examples of acknowledgment of the breach, expression of regret, formal apology, but problem of abuse is in the past |
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international human rights law |
the field of HR law is concerned with ensuring that individuals are protected against government action that offend human dignity |
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the UN on Human Rights |
‘fundamental human rights… obligations arising from treaties and other sources of international law” -UN Preamble
Universal Declaration of Human Rights: “all members of the human family”, “the advent of a world win which human beings shall enjoy… the highest aspiration of the common people”, “human rights should be protected by the rule of law”
adopted by UN General Assembly, and is thus non-binding, set out the common concepts behind human rights that are now recognized in binding legal forms |
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International Bill of Human Rights |
Universal Declaration of Human Rights (10 Dec 1948 -UNGA Resolution 217 A)
International Covenant on Civil and Political Rights (1966 - Current States Parties 168)
International Covenant on Economic, Social and Cultural Rights (1966 -Current States Parties 162) |
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Core UN Human Rights Treaties |
Convention to End all forms of Racial Discrimination (CERD)
International Covenant on Civil and pOlitical Rights (ICCPR)
International Covenant on Economic< Social, and Cultural Rights (ICESCR)
Convention on the Elimination of Discrimination Against Women (CEDAW)
Convention Against Torture and other forms of Cruel, Inhuman, or Degrading Treatment
Convention on the Rights of Children (CRC)
Convention on the Rights of Persons with Disabilities
Convention on the Rights of migrant Workers and their Families
International Convention for the Protection of all persons from Enforced Disappearance |
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Customary International Law and Human Rights |
i.e. genocide, slavery, extra-judicial killing, torture, among others
obligations erga omnes: do not convey additional jurisdictional rights or ovate issues of consent in international law |
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Principle UN Human Rights Organs |
UN Third Committee
ECOSOC
Office of the High Commissioner for Human Rights (OHCHR)
Human Rights Council
Treaty Bodies (e.g. Human Rights Committees -ICCPR) |
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Implementation and Enforcement |
domestic courts or administrative procedures
National Human Rights Institutes (NHRIs)
Regional Mechanisms: European, Inter-American, African, etc.
International Mechanisms (Human Rights Council - political, treaty bodies - legal) |
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Human Rights Council |
a UNGA subsidiary - political body, not a body of experts
47 members (states’ representatives)
geographical distribution of seats: Africa 13, Asia-Pacific 13, LAC 8 WEOC 7, EE 6 three year terms, only 2 consecutive
has been effective, states are listening, even North Korea, triumph of the UN system, addressing states in an effective way |
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Universal Periodic Review |
ran by Human Rights Council and is an works in implementation enforcement
has access to all 193 members states, and by virtue of their membership they are compelled to present human rights reports to the Human Rights Council very 5 years, set up table/schedule, essentially “name and shame”
process consists of a state’s report, state’s comment on report, UN member observations on the report |
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Complaints Procedure |
a process of enforcement within the Human Rights Council
standard setting & capacity building, individuals may exercise their international legal personality on an international legal level |
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Special Procedures |
a process of implementation and enforcement in the Human Rights Council
standard setting, focusing on a particular aspect of human rights e.g. discrimination against women |
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UN Treaty Bodies |
capable of receiving individual communications/complaints
a state is party to the treaty, whether there is a treaty body, and the competence of the treaty body
obligatory component in all treaty bodies
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Human Rights Commitee |
states must have manifested their consent to be monitored by a treaty body
produces periodic reports
individual complaints (optional) - judicial enforcement
2371 submitted, 1008 to final views, 850 violations, currently 358 live cases, 115 Op/Pro State Parties
interstate complaints: has never been exercised, less willing to bring disputes against one another under human rights treaties
general comments: standard setting, a form a self-law, identify thematic issues. jurisprudential nature?, often refer to case law, takes a long time 34 published thus far
way of individuals exercising international legal personality on the international level |
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Enforcement by Other Means |
state-to-state claims: ICJ or regional
regional systems (individual): European, Inter-American, African
national courts (always first) |
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in the event of an individual violation... |
domestic law
regional treaty obligations/access
international treaty obligations/access to treaty bodies (contingent on consent of the state)
human rights council: individual complaints (cannot be anonymous, must be in writing), special procedures |
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Attendant Enforcement |
international criminal courts
-Rome Statute of the ICC: genocide, crimes against humanity, war crimes, crime of aggression
-humanitarian intervention (UNSC Resolution 1973) |
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Impact of International Human Rights Law on Other Areas of Law |
domestic law: legislation, case law, public policy
other fields of international law: international criminal law, economic law, environmental law
self-determination |
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Civil and Political Rights |
civil and political rights are considered to be the ‘first generation’ rights and are at the core of human rights treaty regimes
the International Covenant on Civil and Political Rights (ICCPR) 1976, legally binding
obligation to not do things (interfere), negative obligations |
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Social, Economic, and Cultural Rights |
social, economic, and cultural rights are considered to be ‘second generation’ (cultural being considered third) human rights and generally relate to matters of social and economic significance such as the right to work, the right to social security, to an adequate standard of living, and to education
the International Covenant on Economic, Social, and Cultural Rights 1966
considered more subjective due to cultural relativism, and is thus more difficult to enforce
more positive obligations |
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Primary Organizations in International Human Rights Law |
United Nations, ICJ, Regional Systems, and National Courts
Within the UN: -General Assembly (set out the common concepts behind human rights that are now recognized in binding legal forms)
-UN Third Committee
-ECOSOC: oversees compliance with the International Covenant on Economic, Social, and Cultural Rights
-Office of the High Commissioner for Human Rights (OHCHR): promoting human rights
-Human Rights Council: a UNGA subsidiary - political body, not a body of experts, Universal Periodic Review, Complaints Procedure, Special Procedures
-Treaty Bodies (e.g. Human Rights Committees -ICCPR): a state is party to the treaty, whether there is a treaty body, and the competence of the treaty body, obligatory component in all treaty bodies, able to receive individual complaints |
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Weaknesses of International Human Rights System |
no great advances outside the european regional model, enforcement procedures are not rigorous and they are often nullified by their purely voluntary nature, universal protection is unattainable |
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Other Ways to Protect Human Rights in Other Countries |
naming and shaming
standard setting (telling states what they should do)
capacity building (help states to protect human rights better, give advice and/or money)
(quasi) judicial enforcement |
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Historical Development of Use of Force Law |
Covenant of the League of Nations 1919: under article 11, war or threat of war as a concern of whole League, Council can be summoned
Kellogg-Braind Pact 1928: article 1; recourse to war is condemned, refrain from declaring war afterward
Charter of the United Nations: article 2(4); “all members shall refrain in their international relations from the threat or use of force against the territorial integrity or political Independence of any State, or in any other manner inconsistent with the Purposes of the United Nations” |
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Article 2(4) UN Charter |
prohibition of the use of force
force: political/economic force? (Brazil amendment), assistance to rebels; intervention = force armed attack (Nicaragua Case)
“against territorial integrity or political independence”; restrictive interpretation? Corfu Channel Case (1949)
prohibition of the threat of force (e.g. Hugo Chavez Statement 2009) |
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Potential Exceptions to Article 2(4) |
self-defense: art. 51 UNC
validations of self-defense (anticipatory)?
intervention on invitation
humanitarian intervention (lato sensu)
intervention to rescue own nationals
fight for self determination
reprisals
presidential doctrines |
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Self-Defense |
Basis: Art. 51 UN Charter, interpretation of Art. 51, “inherent right of self defense”
what is inherent right? Caroline Case demonstrated necessity for self-defense, instant, overwhelming, leaving no choice of means, no moment for deliberation
Article 51 UNC: “if an armed attack occurs” -ongoing armed attack on territory of relevant State -agents of armed attack: regular forces or amid bandits (Nicaragua) -intensity (Nicaragua or Oil Platforms): more than frontier incidents; not sufficient in the forms of assistance to rebels and logistical support -intent element? (see Oil Platforms): ’specific intention of harming’
Invasion of Kuwait by Iraq (1990) |
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Anticipatory Self-Defense |
terminology: anticipatory SD distinguished from preventive, preemptive self defense
in favor of anticipatory self-defense: US gov 1946 (dropping of bomb), and danger of destruction of state
against anticipatory self-defense: article 51 “if an armed attack occurs”, ICJ in Nicaragua, no consistent state practice (CIL) in favor of anticipatory SD |
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Collective Self-Defense |
restrictive view: every state needs to be attacked (Jennings in Nicaragua)
permissive interpretation: only one state needs to be attacked
majority view in Nicaragua (1986): only one state need to be attacked, but request is needed
article 51 UNC: “individual or collective” |
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Self-Defense against Terrorist Attacks |
armed attack?: SC 1368/1373 referring to “inherent right to self-defense”
time of attack?: problem of past attacks
target of attack: target state must be responsible for the attack
the invasion of Afghanistan 2001: notification US to SC |
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Intervention on Invitation |
basis: volenti non fit iniuria
requirements of invitation: by competent authority, probably prior to intervention
problem of Civil War: ‘competent authority’?, when does Civil War exist?
cases: the Persian Gulf War 1991, Grenada 1983 (Barbados, Jamaica, OECS asking US), Crimea 2014? |
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Humanitarian Intervention |
academic debate: mainly moral arguments, ‘conscience of mankind’/‘interests of humanity (Oppenheim) -against: potential for abuse, ‘regime change’ almost always needed
normative foundations: genocide strongest point in favor of HI (art.1 genocide convention)
criteria: severe human catastrophe or potent human catastrophe, necessity, state unable or unwilling to act, proportionality
intervention by Tanzania in Uganda (Idi Amin 1979): muted international response ‘supreme indifference’
intervention by Vietnam in Cambodia (Pol Pot 1978): SC refuses to recognize as HI
R2P?: ICISS Report 2001, unilateral intervention debated, can a report be the basis for IL?; World Summit Outcome 2005; no concrete legal authority
Kosovo is biggest citation of humanitarian intervention |
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Intervention to Rescue own Nationals Opinion 1: in favor of this exception |
inherent right to self defense (Bowett), what is self-defense?
either: not against 2 (4) under territorial integrity) or: self defense extends to nationals
state unwilling or unable to rescue the nationals itself, necessity & proportionality
cases in support: Entebbe, Uganda (1976) but GA criticism; Congo (1964) in which the US, UK, and Belgium rescued 2,000 nationals; Tehran Hostages (1980) but criticized by ICJ |
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Intervention to Rescue own Nationals Opinion 2: against this exception |
no uniform usage (Brownlie) e.g. killing of 300,000 Chinese in Indonesia in 1960s
cases quoted to support the restrictive view: Dominican Republic (1965) US invaded also with anti-communist intentions, Grenada (1983) following establishment of new Marxist government, Panama (1989) GA condemnation of clear violation of IL
problem of boundaries (1 national affected?) |
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Fight for Self-Determination |
basis in Art.7 Definition of Aggression (nothing shall prejudice right to self-determination) in GA Res. 3314 1974, but... international or national matter? |
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Fight for Self-Determination in view of the Colonial state |
Friendly Relations Declaration duty to refrain from force in cases of self-determination, if international conflict utilize 2 (4) UN Charter |
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Fight for Self-Determination in view of the Liberation Movement |
if international conflict 2 (4) UN Charter; if national matter does IL stay outside (in the case of genocide?) |
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Fight for Self-Determination in view of Third States |
in international conflict “ “; an exception of 2 (4) UNC in cases of assistance to self determination?
Art. 7 Definition of Aggression (‘seek and receive support’)
1980 Espiell Study (‘positive legal obligation to assist a people struggling against colonial domination’)
intervention by India in East Pakistan 1971
if national conflict: internal conflict third states need to stay our, but able to assist politically and economically |
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Reprisals |
concept of reprisals: general meaning, in use of force: if preceding act did not reach level of armed attack
historical view e.g. Naulilaa Case 1928 (proportionality)
not by themselves unlawful
today: Friendly Relations Doctrine sees srmed reprisals as unlawful; Helsinki Final Act (1975) states that states will refrain from armed reprisals; Qibya Case 1953 -‘accumulation of events’? (Bowett) |
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Brezhev and Reagan Doctrine |
Brezhev Doctrine 1968: Brezhev at Cogress of Polish United Workers Party (forces hostile to socialism) seen in Czechoslovakia case 1968
Reagan Doctrine: state of the union 1985 seen in Nicaragua and Afghanistan cases |
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Use of Force and the Security Council |
---- |
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Article 39 UNC |
determination of the existence of a threat to peace, breach of peace, or aggression
threat to the peace e.g. Somalia, Liberia, Yugoslavia (humanitarian crises in internal conflicts), Libya (failure to denounce terrorism), crises spreading into other countries
breach of the peace: Korean War (1950), Falklands War (1982), Iran-Iraq (1987), Persian Gulf War (1990)
Aggression: South Africa’s intervention in Angola (1976); Iraq’s invasion of Kuwait (1990), Statute of the International Criminal Court set parameters for aggression |
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Article 40 UNC |
Council can call on parties to “comply with provisional measures”
e.g. calls for cease-fires, calls for withdrawal of troops
e.g. security council resolution 509 (1982), security council resolution 1709 (2006) |
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Article 41 UNC |
“measures not involving the use of armed force”
variety of functions possible: -economic sanctions - oil and arms in the case of Haiti or arms in the case of Libya -prohibition of dealings with the government of the named state -setting up international tribunals (ICTY, ICTR)
acting as a legislature? |
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Article 42 UNC |
“such action as may be necessary to maintain international peace” i.e. military action (sea, air, land), blockade
today mainly delegation: Korea 1950 by giving assistance “as may be necessary to repel the armed attack”, Rhodesia 1966 calling on UK to prevent “by the use of force if necessary” arrival of ships carrying oil for South Rhodesia |
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Case Study in Use of Force: the Invasion of Kuwait 1990 |
resolution 660, 2 August 1990: demands withdrawal of forces (Art. 39 & 40)
resolution 678, 29 November 1990: calls for compliance with 660, deadline of 15 January 1991, authorizes member states to “use all necessary means”
resolution 687, 3 April 1991: sets out conditions for cease-fire, “mother of all resolutions”, very long and complicated |
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Case Study in Use of Force: the Invasion of Iraq 2003, starting 20 March 2002 of the US and 'Coalition of the Willing' |
states enjoy to have everything be/appear to be “above the board”
resolution 1441, 8 November 2002: Iraq remains in breach of obligations including under 687, gives Iraq “final opportunity” to comply with obligations, recalls the SC has warned Iraq of “serious consequences” (hidden triggers?)
meaning of resolution 1441: Greenstock (UK Ambassador)/ Negroponte (US Ambassador) “no automaticity”, literal interpretation, if the SC wanted to authorize force it would have done so; Lord Goldsmith ‘no further decisions needed’ to use force
german federal administrative court 2005: SC resolution 707, argued that all preconditions met by Iraq |
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Measures Initiated by the General Assembly |
Charter provisions: Article 12 - no recommendations while SC is exercising its functions, Article 14 - otherwise recommendation of measures fro peaceful adjustment possible
Uniting for Peace Resolution (1950): if SC blocked because of veto, GA shall consider matter immediately e.g. Korea 1950, Afghanistan 1980, peacekeeping forces based on this resolution (UNEF in Egypt 1956)
Certain Expenses Case (1962): GA can make recommendations; SC not exclusive, GA can establish peacekeeping forces (as consensual) |
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Peacekeeping Forces: Concept and Authorization |
the ‘blue helmets’, which requires the consent of the parties involved
currently 14 peacekeeping mission
authorizing organs: UN Security Council (prominent today), UN General Assembly (use to initiate them), Regional Organizations |
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Peacekeeping Forces: Tasks and Personnel |
tasks of peacekeepers: traditionally buffer between warring parties, monitoring ceasefire arrangements, and reporting; today is also HR monitoring, diarmament, reintegration of former combatants
who are the peacekeepers? soldier, but also electoral observers, HR monitors, humanitarian workers, legal experts, administrators |
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Peacekeepers or Peace Enforcement? |
traditional view: force only in self defense
self-defense as not the initiative in the use of force
ONUC 1961 (mission creep): the UN’s Vietnam, background in Belgian Congo crisis 1960, establishment SC res 143, escalation after murder of Congolese PM, “vigorous action”
Defense of the Mandate
UNIPROFOR from 1992
UNAMIR I and II in Rwanda from 1993
Agenda for Peace, June 1992: peacekeeping ‘hitherto with the consent’ and ‘making of peace’
2000 Brahimi Report: if witnessing violence against civilians
United Nations Peacekeeping Operation, Principles and Guidelines 2008: robust peacekeeping v. peace enforcement |
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Measures Initiated by Regional Organizations |
charter provisions: Article 52 (existence of regional arrangements), Article 53 (enforcement action need SC authorization)
regional organizations: e.g. OAS, NATO; specifically mentioned in GA resolutions ECOWAS, OAU, OSCE, Arab League, OAS
cases in which regional organizations can use force: art. 53, art. 51 (collective self defense), intervention on invitation, own constitution permitting intervention? but art. 103 UNC
the case of kosovo 1999: NATO intervention (w/o art. 53 authorization), heavily criticized intervention but no SC condemnation, Yugoslavia brought case to ICJ |
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what is meant by use of force in international law? |
general meant as the used of armed force, or the use of deliberate military action by one state against another
can either be direct, as with the deployment of a state’s regular armed forces, or indirect, as where armed groups of irregulars operate on a state’s behalf (with or without a purpose of they own
economic aggression and propaganda? |
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Article 51 UNC |
outlines that self-defense is lawful in the following circumstances: -in response to and directed against an ongoing armed attack against state territory, reporting to the security council
-in anticipation of an armed attack or threat to the state’s security, so that a state may strike first, with force, to neutralize an immediate but potential threat to its security
-in response to an attack (threatened or actual) against state interests, such as territory, nationals, property and rights guaranteed under international law. if any of these attributes are threatened then the state may use force to protect them
-`where the attack does not itself involve measures of armed force, such as economic aggression and propaganda. all that is required is that there is an instant and overwhelming necessity for forceful action |
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Necessity and Proportionality in Use of Force |
proportionality has two meanings: either equal response or enough to neutralize threat |
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UN enforcement action & UN peacekeeping |
peacekeeping denotes the inter-position of armed forces, usually of multinational character, in a territory with the consent of the territorial sovereign or internal factions
-purpose is usually to act as a buffer between warring states or factions, to supervise a peace or merely even to observe a cease-fire line
-conciliatory not confrontational
enforcement usually not consensual |
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Jurisdiction of International Courts |
jurisdiction of any international court is based fundamentally on the consent of states, even in cases involving individuals
as defined by treaty constituting the court or arbitral tribunal. will depend on the court e.g. only human rights courts can hear cases brought by individuals; only international criminal courts can try individuals for crimes against international law. ITLOS and WTO DSB have specialized jurisdiction limited respectively to law of the sea and ‘covered agreements’ on international trade: both bodies can also hear cases involving entities that are not states |
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International Courts and Contentious Cases |
there has to be a dispute (between states or advisory to the UN or other such organization) which occurs when there is a disagreement of law or fact
issues: in the case of Palestine, individuals cannot sue, companies cannot and international organizations cannot sue in the ICJ
ICJ can only hear contentious cases between states (Statute 34 (1): no other parties allowed (not individuals, companies, international organizations, etc)(see below) |
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'Dispute' in International Courts |
ICJ only has jurisdiction to decide a dispute if all the consent:
‘the jurisdiction of the Court compromises all cases which the parties refer to it and all matters specially provided for in the Charter of the United Nations or in treaties and conventions in force’ (ICJ Statute, Art. 36) |
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Requirements to be Seen by the ICJ |
consent to jurisdiction
has to be a dispute
has to be a state
(no inherent limit on jurisdiction for the ICJ) |
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Ways Consent can be Given to ICK |
by responding to proceedings initiated by another state (‘forum prorogatum’, Corfu Channel case), no obligation to do so
by special agreement between parties referring case to court (e.g. 1969 North Sea Continental Shelf case
under a dispute settlement clause in a treaty (e.g. 1980 Tehran Hostages case, 1996 Oil Platforms case)
by declaration of acceptance of compulsory jurisdiction under the optional clause (ICJ Statute Art. 36 (2))
consent is objectively determined by court (Qatar-Bahrain case): not necessarily real |
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optional clause |
“the states party to the present Statute may at any time declare that they recognize as compulsory ipso facto and without special agreement, in relation to any other state accepting the same obligation, the jurisdiction of the Court in all legal disputes…” (ICJ Statute Art. 36 (2))
terminable at any time, but only prospectively (Nicaragua case)
optional in the sense that states may become parties to the Statute without making Declarations of Acceptance, states accepting jurisdiction in this manner are then bound vis a vis all other states declaring acceptance under the system, the state enters into a consensual bond with all other members of the system
provides a powerful and effective method by which the Court may gain jurisdiction in advance over disputes between states
sets specific boundaries for being in or out of the system |
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Declarations of Consent to be Seen by the ICJ |
declaration may exclude any matter from compulsory jurisdiction: ‘declarations of acceptance of the compulsory jurisdiction of the the Court are facultative, unilateral engagements that States are absolutely free to make or to not make, in making the declaration is equally free either to do so unconditionally and without limit of time for its duration, or to qualify it with conditions or reservations’ (Nicaragua v. US 1984) |
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Jurisdiction Under Article 36(2) |
jurisdiction will exist under Art. 36(2) only insofar as both parties have accepted it on the same terms (1952 Anglo-Iranian Oil case; 1957 Interhandel case; 1997 Use of Force cases) e.g. if one party accepts jurisdiction over all disputes and the other only for disputes arising after date of its declaration then court will have jurisdiction over a dispute between these states only if it arises after the narrower declaration was deposited with UN |
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Declarations made 'On Condition of Reciprocity' |
will extend benefit of one state’s reservation to any other party to proceedings: e.g. Norwegian Loans Case - French exclusion of ‘matters within France’s domestic jurisdiction’, Norwegian acceptance ‘on condition of reciprocity’
effect: excludes matters within Norway’s domestic jurisdiction in proceedings initiated by France |
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Reasons why ICJ may refuse to hear contentious cases |
third party present
hypothetical issues
cases involving injury to aliens have to exhaust local remedies
will hear even in political cases |
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Provisional Measures by the ICJ |
order a halt of the activities of the other state, held that provisional measures are binding on parties
particularly effective in environmental cases
to ensure your are not prejudiced pending a review on the merits |
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Compliance and Enforcement by the ICJ |
if you have to enforce it, provisions for the SC to enforce it
can enforce ICJ judgements sometimes by sanctions, countermeasures, etc.
can be and is enforceable |
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Advisory Opinions by the ICJ |
can give them to the UN or other authorized international organization
providing advice on constitutional competence or some part of international law relevant to them
gives it a broader jurisdiction
sets out the law, no matter if it’s contentious or advisory
any body duly authorized by the United Nations may request an Advisory opinion on, providing advice on constitutional competence or some part of international law relevant to them
on “any legal question”, is flexible and can be resolved only on a case by case basis (won’t on the moral duties of states, but will on political issues) |
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Judges on the ICJ |
made up of 15 judges of different nationalities, who are elected by the GA and SC. these will include one judge from each of the five permanent members of the council
chambers of less than 15 if parties agree to it, or more than 15 if there is a judge ad hoc if none of the judges on the court are of the nationality of a state in Court
judges are elected from candidates proposed by the national groups of the Permanent Court of the Arbitration
representative of the principle forms of civilization and principle legal systems of the world, high moral character, none of the same nationality |
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forum progoratum |
may occur if, while the Court is considering the unilateral application of one state, the other expressly or impliedly signifies its consent to the jurisdiction; in such circumstances, jurisdiction is by consent post hoc or prorogation, filing a case and hoping that the other state will agree |
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compromissory clause in a treaty |
method of consent ad hoc, many treaties contain clauses granting the Court jurisdiction in advance over the subject matter of the treaty |
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special agreement |
whereby the parties agree by treaty to refer a specific matter to the Court |
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'reciprocity' in the Optional CLause |
declarations made ‘on condition of reciprocity’ will extend benefit of one state’s reservation to any other party to proceedings: e.g. Norwegian Loans Case - French exclusion of ‘matters within France’s domestic jurisdiction’, Norwegian acceptance ‘on condition of reciprocity’
effect: excludes matters within Norway’s domestic jurisdiction in proceedings initiated by France
optional clause applies only between participating states; a state which has not made a Declaration cannot rely on another state’s membership of the system in order to bring a dispute with it before the Court even if the plaintiff state is happy to make a one-off submission to jurisdiction
means that the court exercises jurisdiction only to the extent to which the Declaration of the parties to a dispute coincide, one state may rely on the reservations contained in another state’s declaration |
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self-judging reservation in the Optional Clause |
reserve a state’s competence over domestic matters as before, but add that the state itself is to be the sole judge of what is a domestic matter
for: give the state itself the power to decide whether the Court may hear a case, because what a state constitutes a domestic matter is apparently left entirely to the state’s own judgement, basis in state consent
against: contrary to Art. 36(6) of the Statute which provides that it is the Court which has the power to determine the limit of it’s own jurisdiction, does not create explicit acceptance of jurisdiction |
