Jurisdiction:
The ICJ must have jurisdiction. The principle of the ICJ is consent; therefore it will need to be shown that both parties have consented (Art 36). It is assumed that both parties have consented and are participants in the VCLT.
1) How can the Australian Government argue that Oceania can be attributed with the responsibility for an internationally wrongful act?
State Responsibility of Oceania
State responsibility is the legal consequence flowing from breaches of international law and obligations by states. In this scenario, we are looking at the bilateral investment agreement between Australia and Oceania (pursuant to art 5). The law of state responsibility has been codified in the Articles on the Responsibility of States for Internationally …show more content…
However, this only applies to any available effective local remedies – Art 44 ASR. Local remedies where determined in Ambatielos Arbitration as the whole system of legal protection essential to establish the claimant’s case before local courts. Furthermore, to show ineffectiveness, it must be proven that such remedies would have been obviously futile if resorted to (Interhandel). Accordingly, Australia could only claim diplomatic protection and therefore make a state responsibility claim if the victim national affected by the appropriation of the oil rig had made a claim, at a local court level. On the facts, it appears local remedies have not been exhausted as the affected national do not appear to have made such a claim. It is assumed that no action were taken, although it may be possible to infer that the compensation may be sufficient in this case to warrant an exhaustion of local remedy. Furthermore, it is possible Australia could establish that resort to the local courts would have been obvious futile and thus ineffective (Interhandel). Therefore, it may be possible for Australia to satisfy this element.
2) How can the Oceanian Government deny its state responsibility over this …show more content…
Oceania is under obligation to make full reparation for the injury caused by seizing of the Australian national’s oil rig. (ASRT Art 31(1)) This injury includes any damage, whether material or moral, caused by the internationally wrongful act of a State (Art 31(2); Rainbow; Diallo). On the facts, OOC offered a payment for compensation but the amount covered only the depreciated value of the property (not the original investment). They have not compensated for the loss of honour, dignity or prestige of the State [Australia] (Rainbow) as well as the psychological suffering and loss of reputation of the victim national who has lost presumably, a large amount of money. Therefore, for the purposes of art 31, this is not full reparation and in line with article 5 of the agreement with Australia, Oceania has not given ‘appropriate
The ICJ must have jurisdiction. The principle of the ICJ is consent; therefore it will need to be shown that both parties have consented (Art 36). It is assumed that both parties have consented and are participants in the VCLT.
1) How can the Australian Government argue that Oceania can be attributed with the responsibility for an internationally wrongful act?
State Responsibility of Oceania
State responsibility is the legal consequence flowing from breaches of international law and obligations by states. In this scenario, we are looking at the bilateral investment agreement between Australia and Oceania (pursuant to art 5). The law of state responsibility has been codified in the Articles on the Responsibility of States for Internationally …show more content…
However, this only applies to any available effective local remedies – Art 44 ASR. Local remedies where determined in Ambatielos Arbitration as the whole system of legal protection essential to establish the claimant’s case before local courts. Furthermore, to show ineffectiveness, it must be proven that such remedies would have been obviously futile if resorted to (Interhandel). Accordingly, Australia could only claim diplomatic protection and therefore make a state responsibility claim if the victim national affected by the appropriation of the oil rig had made a claim, at a local court level. On the facts, it appears local remedies have not been exhausted as the affected national do not appear to have made such a claim. It is assumed that no action were taken, although it may be possible to infer that the compensation may be sufficient in this case to warrant an exhaustion of local remedy. Furthermore, it is possible Australia could establish that resort to the local courts would have been obvious futile and thus ineffective (Interhandel). Therefore, it may be possible for Australia to satisfy this element.
2) How can the Oceanian Government deny its state responsibility over this …show more content…
Oceania is under obligation to make full reparation for the injury caused by seizing of the Australian national’s oil rig. (ASRT Art 31(1)) This injury includes any damage, whether material or moral, caused by the internationally wrongful act of a State (Art 31(2); Rainbow; Diallo). On the facts, OOC offered a payment for compensation but the amount covered only the depreciated value of the property (not the original investment). They have not compensated for the loss of honour, dignity or prestige of the State [Australia] (Rainbow) as well as the psychological suffering and loss of reputation of the victim national who has lost presumably, a large amount of money. Therefore, for the purposes of art 31, this is not full reparation and in line with article 5 of the agreement with Australia, Oceania has not given ‘appropriate