Public International Law Lesson 9 PDF

Public International Law Assist. Prof. Dr. Mirza Ljubović Lesson 9 Judicial dispute resolution Topic map  Introduction No international court is endowed with compulsory jurisdiction to resolve international legal disputes between States. Neve...

Public International Law Assist. Prof. Dr. Mirza Ljubović Lesson 9 Judicial dispute resolution Topic map  Introduction No international court is endowed with compulsory jurisdiction to resolve international legal disputes between States. Nevertheless, modern international law is committed to the resolution of international disputes by peaceful means. The international legal system has developed a number of ways of resolving such disputes by judicial settlement. There has been a tremendous growth in the number of judicial bodies which have jurisdiction to decide disputes about international law. However, many of them involve individuals making claims against their own State (e.g. The ECHR) or claims against individuals (e.g. the ICC). These judicial bodies are important institutions for the creation and enforcement of international law. However, as this book focuses primarily on the inter-State legal system, this chapter will concentrate on the resolution of inter-State disputes by judicial means. Peaceful settlement of international disputes Peaceful settlement of international disputes Negotiation – this involves direct contact between the parties to a dispute. Mediation and ‘Good Offices’ – this involves using a neutral third party as a negotiator. Commissions of inquiry – this is where an independent body is used to establish the factual basis of a particular dispute. Its findings may provide the foundations for a negotiated settlement. Conciliation – where an independent body is engaged to investigate the dispute and to provide a report containing recommendations targeted to resolving the dispute. However, such reports are not legally binding on the parties.  Arbitration Arbitration has three important features in the context of international law: it is concerned with the resolution of an international dispute by reference to the rights and duties of the parties as a matter of international law; the decisions of arbitral bodies are legally binding on the parties to the dispute; the parties are allowed to select the person or persons that will be given the job of deciding the particular dispute in question.  Arbitration The use of arbitration as a means of resolving international legal disputes has a long history. Examples include: Alabama Arbitration (1872); Island of Palmas Case (1928); Rainbow Warrior Case (1987).  Arbitration The success of arbitration stems largely from its consensual nature (as opposed to being compulsory); its ad hoc quality and the fact that it allows parties to select the decision makers between themselves.  ICJ and PCIJ The ICJ is the current guardian of international law. The first ‘World Court’ was the Permanent Court of International Justice (PCIJ), which was established in 1920 under the auspices of the League of Nations (1919). Through its judgments the PCIJ was responsible for delivering some of the most important pronouncements on international law (e.g. The Lotus Case (1927)). It was superseded by the ICJ, which was created by the ICJ Statute (1945).  ICJ and PCIJ The function of the World Court remains the same. Consequently, the decisions of the PCIJ and the ICJ have the same authority in international law.  ICJ contentious cases Access to the Court Article 35, ICJ Statute provides that only States have access to court (subject to special provisions). Under Article 93(1), UN Charter, all member States are parties to the ICJ Statute. Before the ICJ will admit a case, it must be satisfied that: the dispute is a legal dispute (i.e. capable of being settled by the application of principles and rules of international law); and it has jurisdiction to decide the particular dispute in question.  ICJ contentious cases Access to the Court Article 35, ICJ Statute provides that only States have access to court (subject to special provisions). Under Article 93(1), UN Charter, all member States are parties to the ICJ Statute. Before the ICJ will admit a case, it must be satisfied that: the dispute is a legal dispute (i.e. capable of being settled by the application of principles and rules of international law); and it has jurisdiction to decide the particular dispute in question. Interim protection measures Interim protection measures Interim protection measures However, the US government was of the view that provisional measures were not binding and so La Grand’s execution was not stayed. The ICJ reaffirmed the position that its decisions concerning provisional measures are legally binding when it reached a decision on the merits of the case ((2003) ICJ Rep 3). Moreover, it found that the US had breached the 1963 Convention.  Jurisdiction Article 36(1), ICJ Statute emphasises the requirement that a State has consented to the resolution of a particular legal dispute by judicial means. Consent may be expressed in a number of ways: Special agreement (compromis) Jurisdictional clause in a treaty  Forum prorogatum Forum prorogatum arises where consent is identifiable from the conduct of a respondent State. Jurisdiction via the optional clause Jurisdiction via the optional clause This provision permits compulsory jurisdiction in situations where a State party has made a declaration under Article 36(2). Accordingly, compulsory jurisdiction exists in relation to the matters contained in Article 36(2). However, there is no obligation on the State to make such a declaration and therefore jurisdiction under this provision is not compulsory. While a significant number of States have made such declarations a number of States have withdrawn and the UK remains the only permanent member of the UNSC that has made a current declaration under the optional clause. Jurisdiction via the optional clause Although an optional clause declaration amounts to a unilateral act it only has significance bilaterally. Consequently, it can only have legal effect in a situation where the other party to the dispute has also made such declaration pursuant to Article 36(2). States that have made declarations under the optional system have made reservations in respect of their declarations. The most popular are as follows. Jurisdiction via the optional clause  ‘Connally’ reservations This reservation was developed by the US. It provided that the US would not be bound to accept the Court jurisdiction in matters essentially within the domestic jurisdiction of the US, as determined by the US government. Such reservations are now widely made by States. See Norwegian Loans Case (France v Norway) (1957) ICJ Rep 9 (below).  Time-barring reservations For example, the UK has excluded proceedings brought within 12 months of depositing a declaration under the optional clause. This reservation is designed to prevent States from being ambushed by unforeseeable litigation in the ICJ of the kind witnessed in the Rights of Passage Case (1957) (above). Such a reservation was upheld in the Case Concerning the Legality of the Use of Force (Yugoslavia v UK) (Provisional Measures) (1999) ICJ Rep 916. Reservations relating to particular States For example, the UK has excluded jurisdiction under the optional clause regarding disputes with Commonwealth States. The idea behind such reservations is that States belonging to a particular organisation may have ways of resolving disputes between member States that are more conciliatory than through ICJ litigation. Reciprocity and the optional clause Reciprocity has two effects: 1. the optional clause applies only between participating States; 2. the ICJ exercises jurisdiction only over those disputes where the parties’ declarations coincide. A State may therefore rely on another State’s reservation. Reciprocity and the optional clause ‘Vandenberg’ reservations A ‘Vandenberg’ reservation holds that jurisdiction arising out of the operation of the optional clause will only be effective in relation to a particular multilateral treaty if all the parties to the dispute are parties to the case and to the multilateral treaty in question. ‘Vandenberg’ reservations  Nature of ICJ decisions Article 94(1), UN Charter provides that all member States are under an obligation to comply with the ICJ’s decisions. Further, Article 94(2) provides that if a State party fails to comply with such a decision the other party to the case can submit the matter to UNSC. UNSC may then take such steps as it considers appropriate in order to enforce the judgment. ICJ judgments are binding on the parties but the Court does not follow the doctrine of stare decisis (judicial precedent) (Art. 59, ICJ Statute). However, the ICJ typically follows the legal rules and principles established in previous ICJ cases. Clearly, this is a sensible approach since it promotes consistent decision making and legal certainty.  ICJ and UNSC The US refused to accept the ICJ’s decision in the Nicaragua Case (1986). Nicaragua complained to the UNSC pursuant to Article 94(2). However, the US exercised its veto and thus it stopped the UNSC from taking any steps to enforce the judgment.  ICJ advisory jurisdiction Articles 65–68, ICJ Statute, empower a body duly authorised by the UN to seek an Advisory Opinion from the Court. Bodies that have standing for such a purpose include the UNGA and UNSC (Art. 96, UN Charter). Advisory Opinions are not legally binding. However, if an Advisory Opinion affects the rights and obligations of States they are generally acted upon. A request for an Advisory Opinion must give rise to a legal question because the ICJ is only authorised to resolve legal disputes and to consider legal matters. However, often requests manifest both legal and political dimensions. ICJ advisory jurisdiction THE END