Week 9 - International Court of Justice PDF

Version 1.0 Dr. Asier Garrido- Muñoz WEEK 9 – THE INTERNATIONAL COURT OF JUSTICE  Content 1. International Courts and Tribunals: General Issues 2. ICJ: Jurisdiction of the Court / Admissibility 3. ICJ: Contentious Proceeding...

Version 1.0 Dr. Asier Garrido- Muñoz WEEK 9 – THE INTERNATIONAL COURT OF JUSTICE  Content 1. International Courts and Tribunals: General Issues 2. ICJ: Jurisdiction of the Court / Admissibility 3. ICJ: Contentious Proceedings 4. The Judgment and its Implementation 2  1. Int. Courts and Tribunals: A Few General Points An exception rather than a rule Third party adjudication – ‘loss of control’ Does not need to cover all aspects of a dispute Multiple options Solution based on law Rigid mechanism Costly Does not work for all disputes 3 4  General Features ▪ Part of the peaceful settlement mechanisms under Article VI of the UN Charter ▪ Only inter-state tribunal with general jurisdiction ▪ Only UN body situated outside the geographic spheres of influence (“principal judicial organ of the UN”) ▪ Great influence on clarification/development of public international law (“organ of public international law”) 5  Organisation ▪ 15 Judges ▪ Elected by the General Assembly and the Security Council from the PCA list (Art. 4 St) ▪ Up to 2 Judges ad hoc (Art. 31 St) ▪ Representative of the “main forms of civilization and the principal legal systems of the world” ▪ 9 years with re-election ▪ President and Vice-President elected for three years (Art. 21 St) ▪ Incompatibilities (Arts. 16 and 17 St / 24 St) ▪ Registry 6  Governing Texts (Procedure and Organisation) ▪ United Nations Charter ▪ Statute of the Court ▪ Rules of Court ▪ Resolution concerning the judicial practice of the Court ▪ Practice Directions 7 2. Jurisdiction: General Issues Art. 38 ICJ St: ▪ International conventions ▪ International custom ▪ General principles of law recognized by ‘civilized nations’ ▪ Judicial decisions and the teachings of the most highly qualified publicists (subsidiary means) 8  Jurisdiction Ratione Personae ▪ Only States: Art. 34.1 St ✓ Reference to general international law ✓ States Parties to the UN (difficult cases) ✓ States appear on behalf of individuals ▪ It is possible for individuals to get involved in the cases ▪ Article 34.2/3 St: participation of IOs 9  Jurisdiction Ratione Consensus ▪ Principle of consent: Art. 36.1 St “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” ▪ Strict principle: the importance of a norm does not give the Court jurisdiction (East Timor, 1996) ▪ Impossibility for third States to participate in proceedings (Monetary Gold principle) 10  Jurisdiction Ratione Consensus Lack of formalism: ▪ Treaties for the peaceful settlement of disputes ▪ Jurisdictional clauses in treaties ▪ Optional clause declarations (Art. 36.2 St) ▪ Special agreements ▪ Forum prorogatum (Art. 36.5 St) 11 Jurisdiction Ratione Consensus Treaties for the peaceful settlement of disputes: − General Act for the Pacific Settlement of International Disputes (1928) − Inter-American Treaty on the peaceful settlement of disputes (Bogotá, 30 April 1948) − European Convention on the peaceful settlement of disputes (Strasbourg, 29 April 1957) Art. 2 Pact of Bogotá: “The aforesaid procedures, furthermore, may not be applied to matters already settled by arrangement between the parties, or by arbitral award or by decision of an international court, or which are governed by agreements or treaties in force on the date of the conclusion of the present Treaty” (Bolivia v Chile, 2015). 12  13 Jurisdiction Ratione Consensus. Compromissory clauses ▪ Disputes concerning the “interpretation and application” of a Treaty ▪ Renvoie to the provisions of the Treaty + certain additional questions − State responsibility (Factory at Chorzow, Nicaragua vs. US, Bosnian Genocide…) − Termination or suspension of the Treaty (Jurisdiction of the ICAO) − Principles of int. law mentioned in the treaty? − Other rules of int. law by way of systemic interpretation (Oil Platforms case)?  Jurisdiction Ratione Consensus. Optional Clause Declarations ▪ Origin in the negotiations of the Statute of the PCIJ: no agreement on compulsory jurisdiction ▪ “In relation to any other State accepting the same obligation” (Art. 36.2 St) ▪ In force at the moment of institution of proceedings. “Surprise attacks” possible (Right of passage, Cameroon v. Nigeria) ▪ Reservations: search lowest common denominator 14  Jurisdiction Ratione Materiae ▪ Dispute: “a disagreement on a question of law or of fact, a conflict of legal opinions or of interests between two persons” (Mavrommatis, 1923) ▪ ‘A mere assertion is not sufficient to prove the existence of a dispute any more than a mere denial of the existence of the dispute proves its non-existence … It must be shown that the claim of one party is positively opposed by the other’ (South West Africa (Preliminary objections) − ‘t]he function of the concept … is to express in a legally discrete term the matter in connection with which the Court is empowered to make a judicial decision …’ (Rosenne) 15 Monetary Gold Principle Admissibility ▪ France, UK and USA (Tripartite Commission for the Restitution of the Monetary Gold seised by Germany since 1938) ▪ Albania: claimed ownership of monetary gold seised in Rome in 1943 ▪ Italy: had claims against Albania, but feared a case by Albania before ICJ 16  In this case, Albania’s interests would be not only affected by a decision, but would form the very subject-matter of the decision 17 Art. 47 ASR  Subsequent Case Law ▪ Nicaragua v United States (collective self- defence) ▪ Third parties: Honduras and El Salvador ▪ Nauru v Australia (Tripartite commission responsible for management of phosphate mines in Nauru) ▪ Third parties: UK and New Zealand ▪ Portugal v Australia (East Timor Case) (breach of self-determination of East Timor as a result of the conclusion of a treaty in respect to exploration of oil and gass off the coast of East-Timor) ▪ Third party: Indonesia 18  The interests of New Zealand and the United Kingdom do not constitute the very subject-matter of the judgment to be rendered on the merits of Nauru's Application … In the [Monetary Gold] case, the determination of Albania's responsibility was a prerequisite for a decision to be taken on Italy's claims … In the present case, a finding by the Court regarding the existence or the content of the responsibility attributed to Australia by Nauru might well have implications for the legal situation of the two other States concerned, but no finding in respect of that legal situation will be needed as a basis for the Court’s decision on Nauru’s claims against Australia ICJ, Certain Phosphate Lands (Nauru v Australia, 1992, para. 55) 19  3. Procedure in Contentious Cases (I): Application ▪ States as parties ▪ Languages: English or French (Art. 39 St) ▪ Application or written notification of the special agreement (Art. 40 St). Communication to the other party and the UNSG − Art. 40.1 St + Art. 38 RoC: the Application shall specificy as far as posible: Legal grounds of jurisdiction Nature of the claim Statement of facts 20  3. Procedure (II): Written Proceedings ▪ Blend between the continental system and the Anglo- American common law system ▪ One/two rounds of pleadings (Art. 43.2 St ‘if necessary’). ▪ Deadlines: agreed with the Parties ▪ No word-limits ▪ After the closure of the written proceedings, no document may be submitted by either party (Art. 56 RoC) 21  3. Procedure (III): Incidental Proceedings Preliminary objections (Arts. 79-79bis-79ter RoC) Provisional measures Intervention (Third State) Counter-claims Special reference to the Court Discontinuance 22  “IN THE EVENT OF A DISPUTE AS TO WHETHER THE COURT HAS JURISDICTION, THE MATTER SHALL BE SETTLED BY THE DECISION OF THE COURT” Article 36 ICJ Statute 23 1. Preliminary Objections: Art. 79 RoC - Motu proprio by the Court (Art. 79 RoC) - By a party (Art. 79bis) (systematically raised) - No later than three months - Proceedings suspended - Possibility to be heard on the merits - Decision (Art. 79ter). 24 Esta foto de Autor desconocido está ba jo licencia CC BY-SA-NC 1. Preliminary Objections Jurisdiction Admissibility General admissibility (G. Abi-Saab): questions of judicial propriety − Moot question − Lack of legal effects of the decision (Marshall Islands Cases in the relation to negotiations on a multilateral issue).  2. Provisional Measures Art. 41 St.: “1. The Court shall have the power to indicate, if it considers that circumstances so require, any provisional measures which ought to be taken to preserve the respective rights of either party. 2. Pending the final decision, notice of the measures suggested shall forthwith be given to the parties and to the Security Council.” 26  ▪ Prima facie jurisdiction ▪ Plausibility (reasonable prospect of success on the merits) “At this stage of the proceedings, the Court, however, is not called upon to determine definitively whether the rights which Ukraine wishes to see protected exist; it need only decide whether the rights claimed by Ukraine on the merits, and for which it is seeking protection, are plausible” (Ukraine v. Russia, Order, para. 64). 27  ▪ Risk of irreparable prejudice to the rights asserted by the Applicant/Respondent (Pulp Mills) ▪ Urgency: “real and imminent risk” ▪ Link between measures and rights (Arbitral Award of 31 July 1989) ▪ Non-aggravation of the dispute 28  Examples of Provisional Measures ▪ The Republic of the Union of Myanmar shall … take all measures within its power to prevent the commission of all acts within the scope of Article II of this Convention [on Genocide], in particular … (23 I 20) ▪ ‘Take all measures at its disposal to ensure that Mr. Jadhav is not executed’ (18 V 17) ▪ Each Party shall refrain from sending to, or maintaining in the disputed territory … any personnel, whether civilian, police or security (8 III 11) 29  3. Intervention (Third States) Article 62 St Article 63 St Interest of a legal nature Construction of a Which may be affected by Convention (notification) the decision Right to intervene in Judgment binding on the proceedings third party Judgment binding on the third party 30 4. Counter-Claims Art. 80 RoC: “The Court may entertain a counterclaim only if it comes within the jurisdiction of the Court and is directly connected with the subject-matter of the claim of the other party”. 4. Counter-Claims Not a defence on the merits: a separate claim (Bosnian Genocide, Order, 1997) Widens the subject-matter of the dispute by pursuing aims other then the dismissal of the claim Cumulative requirements The Court has certain discretion (“the Court may”) 4. Counter-Claims Connection in fact: same factual complex − Same geographical area (Certain Activities/Construction of a Road) − Same period (ibid, Bosnian Genocide) − Facts of a similar nature (same kind of conduct) (NICOLC) Connection in law: − Same legal aim − Legal principles or instruments relied upon Jurisdiction  3 4 Procedure (III) Oral Proceedings Procedure (IV) Deliberation 4. The Judgment and its Implementation ▪ Language ▪ Art. 94 UNCh: obligation to comply ▪ Art. 59 St.: res judicata between the Parties (dispositif): “The decision of the Court has no binding force except between the parties and in respect of that particular case”. − In practice, the Court deals with its previous decisions as precedents (the Court will not depart unless there are reasons. Marshall Islands vs South West Africa) 36 Implementation ▪ Art. 94 UNCh: obligation to comply (art. 94.2: UNSC) ▪ Often requires subsequent steps (demarcation, negotiations on reparations) ▪ Means of enforcement to be decided by each party (Avena, Jadhav) ▪ Willing/unwilling parties 37 Questions?