#16784 - Ids Essay And Problem Question Notes - International Law

International law requires that dispute settlement must be by peaceful means.

Art 2(3), UN Charter: “All Members shall settle their international disputes by peaceful means in such a manner that international peace and security and justice, are not endangered.”

Yugoslavia v Belgium (Legality of the Use of Force): Art 2(3) states customary international law.

Declaration on Principles of International Law concerning Friendly Relations 1970: “Every State shall settle its international disputes with other States by peaceful means in such a manner that international peace and security and justice are not endangered.”

The choice of means is for the parties to determine.

Art 33, UN Charter:

“1. The parties to any dispute, the continuance of which is likely to endanger the maintenance of international peace and security, shall, first of all, seek a solution by negotiation, enquiry, mediation, conciliation, arbitration, judicial settlement, resort to regional agencies or arrangements, or other peaceful means of their own choice.

2. The Security Council shall, when it deems necessary, call upon the parties to settle their dispute by such means.”

Status of Eastern Carelia, PCIJ Ser B No 5 (1923), p. 27: “It is well established in international law that no State can, without its consent, be compelled to submit its disputes with other States either to mediation or to arbitration, or to any other kind of pacific settlement.”

The role of the Court

Art 92, UN Charter: The ICJ is the “principal judicial organ” of the UN.

Art 93(1) of the UN Charter: “All Members of the United Nation are ipso facto parties to the Statute of the International Court of Justice”

Composition

Chapters I, II, ICJ Statute: The ICJ has 15 judges chosen by the UN General Assembly and Security Council.

Traditionally each of the P5 has been represented, but recently the British judge Christopher Greenwood failed to be re-elected.

Art 31, ICJ Statute: if parties to a dispute do not have a judge of its nationality overseeing the dispute, they can agree to appoint an ad hoc judge for this purpose.

Parties

Arts 34 ICJ Statute: Only states may be parties before the court.

Mitigated by the law on diplomatic protection

Study Group on the ICJ:

• Neither international personality nor the capacity to bring claims is restricted to States, as the ICJ itself affirmed in the Reparations case. It is then not logically obvious why the UN and specialised agencies should be excluded from using the ICJ as parties.

• The use of arbitration or advisory opinions in disputes between these organisations and States is inadequate, because it is important that public international organisations should be held legally accountable to States and vice versa.

• On the other hand, there is little demand for direct standing from the organisations themselves.

• Furthermore, if disputes between States and international organisations were to go to the ICJ, they would add to the pressure on the its list.

• There is no strong present support for the idea that individuals should be given locus standi. Opening up the ICJ to individuals would also add to the pressure on its list.

• Furthermore, there are other fora in which human rights cases by individuals can be pursued.

General

Art 36(6), ICJ Statute: “In the event of a dispute as to whether the Court has jurisdiction, the matter shall be settled by the decision of the Court.”

Art 59 ICJ Statute: The decisions of the ICJ have no binding force except between the parties and in respect of the particular case.

Three general stages of dispute: preliminary stage (jurisdiction and admissibility), merits stage, reparations stage.

Nicaragua v Honduras (Jurisdiction and Admissibility): SO of Judge Oda: “When considering the jurisdiction of the ICJ in contentious cases, I take as my point of departure the conviction that the Court’s jurisdiction must rest upon the free will of sovereign States, clearly and categorically expressed, to grant the Court the competence to settle the dispute in question.”

Legality of Use of Force (Yugoslavia v Belgium), Congo Case (Congo v Rwanda): The ICJ’s jurisdiction in contentious cases depends on the consent of states.

Art 36(1), Statute of the ICJ: “The jurisdiction of the Court comprises 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.”

1. “Which the parties refer to it”. Article 40(1)

Cases the parties refer to the ICJ by special agreement.

Danube Dam: Jurisdiction was established by special agreement between Hungary and Slovakia.

Libya v Chad: Jurisdiction was established by special agreement between Libya and Chad.

Burkina Faso/Mali: jurisdiction established by special agreement. Burkina Faso, in its memorial, asked for clarification with regard to certain points outside the agreement. No jurisdiction there.

2. “Matters specially provided for in the Charter of the United Nations”

Harris, Dixon: This phrase was designed to trigger a jurisdictional clause at a time when it was hoped that the UN Charter would provide for the ICJ to have compulsory jurisdiction. However, no such clause survived in the final text in the UN Charter, and the phrase has no meaning.

Pakistan v India (Case Concerning the Aerial Incident of 10 August 1999): Pakistan attempted to rely on Art 36(1). Its argument was rejected on the ground that the UN Charter contains no jurisdictional clause.

Corfu Channel: The UK argued that these words could be interpreted to refer to a SC resolution which recommended that the parties submit their dispute to the Court. This argument was rejected in the SO of Judges Basdevant, Alvarez, Winiasrski, Zoricic, De Visscher, Badawi and Krylov. Their view was that the SC could make only “recommendations”, and they affirmed that the basic principle of jurisdiction was that it was fundamentally consensual.

3. “Treaties and conventions in force”

First, there must be a binding treaty in which states have accepted the jurisdiction of the ICJ

Doesn’t have to be a formal treaty. Qatar v Bahrain: The ICJ decided that meeting minutes between the parties constituted ‘international agreements creating rights and obligations for the Parties’ and ‘by the terms of those agreements the Parties had undertook to submit to the Court the whole of the dispute between them”.

Did Qatar and Bahrain consent to the ICJ's jurisdiction in this case? Difficult issue. The decision to treat the Doha agreement as a sufficient basis of jurisdiction has rightly been seen by some to be extremely puzzling, given the drafting history and language of that agreement. The majority placed particular emphasis on the fact that the 1991 agreed minutes provided that, if Saudi Arabia could not bring about a settlement within the prescribed time, the parties ‘may’ refer the matter to the Court. Since parties were free to conclude special agreements at any time, the Court thought that this expression was otiose if only a compromis were envisaged. But this reasoning, it is submitted, failed to give proper weight to the fact that the purpose of this provision was plainly to try and keep the dispute within the family rather than to constitute a special agreement.

Greece v Turkey (Aegean Sea Continental Shelf): A “joint communique” issued by the Greek and Turkish PMs was not a treaty because an intention to create legal relations could not be found.

Second, is there a dispute about the interpretation or application of that treaty?

Libya v USA and UK (Lockerbie): The US and UK argued that Libya was under a duty under the Montreal Convention to surrender the alleged bombers to stand trial. Libya disagreed. Libya brought a claim against the US and UK for a violation of the Convention. The ICJ held that there existed a legal dispute concerning the Convention because the States disagreed about whether it applied, and therefore about its interpretation or application.

*Iran v USA (Oil Platforms) (1992). Facts: The US attacked Iranian oil platforms during the Iran-Iraq War of 1980-88. Iran brought a claim against the US for a violation of the bilateral Treaty of Amity. The ICJ found that it had jurisdiction under Article 10(1) of the Treaty: “Between the territories of the two High Contracting Parties there shall be freedom of commerce and navigation”. Analysis: However, this sole basis of jurisdiction limited the scope of the court’s legal assessment – it could not consider whether the attacks constituted a violation of the UN Charter or CIL concerning prohibition of the use of force. Also, whether Article 20(1)(d) (essential security interests) provided a defence to a breach of Article 10(1) depends on finding a breach of Article 10(1) first, but this was not found. Verdict: At the merits stage, instead of asking if (1) if there has been a violation of Article 10(1) and (2) if this violation was justified by self-defence, the ICJ inverted the order of questions. By addressing the issue of self-defence first, the Court would address whether the use of force cohered with general international law. No violation of Article 10(1) was found eventually.

Iran had clearly shoehorned an essentially use of force dispute into the Treaty of Amity. The ICJ was cognisant of this: "It is clear that the original dispute between the Parties related to the legality of the actions of the United States, in the light of international law on the use of force’; and ‘both Parties are agreed as to the...