Hoorcollege week 1a:
Introduction
Foundational subjects:
1. Sources: what is international law?
2. Subjects: to whom does it apply?
3. State responsibility: when is it violated?
4. Dispute settlement: who gets to decide?
5. Jurisdiction: what are the limits of a state’s legal order?
6. Immunity: when is jurisdiction barred?
The Chagos Archipelago
Background:
Cold war
Need for a military base for especially US army 1965 Lancaster
House Agreement between
Mauritian was not in depend.
Wasn’t an agreement full f agreement from Mauritian side
Mauritian would become in depended on if the UK could keep the
Chagos Islands
1986-1973: original civilians from the Chagos islands were forcible
removed.
From 2001: US starts using Chagos islands to transport and keep
terror suspects held, to avoid law of terror.
International dispute settlement
Advisory opinion
Types of adjudicatory bodies
Standing (permanent)
Has a bench of judges who are stand by to judge and give
opinions.
Ad hoc (temporary)
Arbitration: settled for a specific dispute. Usually, five
arbitrators instead of fifteen judges.
Contentious jurisdiction: methods of consent
Legal disputes between states, the courts power is depended on the
state’s consent.
Special agreement, art. 36 (1) ICJ Statute Art. = mini treaty
Is a backward looking method the dispute has already
occurred.
Compromissory clause, art. 36 (1) ICJ Statute Art.
Is a forward-looking method the dispute hasn’t occurred. It’s
for dispute’s that will occur in the future.
Optional clause declaration, ICJ Statute art. 36 (2). Quite
specific to the ICJ.
Is a looking forward method The dispute hasn’t occurred
Forum prorogatum, ICJ Rules art. 38 (5)
Advisory jurisdiction (UN Charter art. 96)
Not disputes, rather questions.
Non-binding, just advice to the requesting body. But they are highly
authored.
, Discretion to decline (ICJ Statute art. 65)
When it might be inappropriate to provide an advice. This follows out
of the term ‘may’ instead of ‘shall’. In some situations, the court
must give advice, then the term ‘shall’ will be used.
Mauritian aadvisory opinion
The ICJ had to check two things.
1. Process of decolonization: was it lawfully?
2. If there were legal consequences
Discretion (paras 64-91)
4th reason circumvention of principle consent (paras 83-91).
The UK didn’t give consent to give the ICJ jurisdiction, so the
general assembly asked for an advisory opinion.
It was decided that it wasn’t just a bilateral dispute but that it
involved more parties of the UN who are involved with
decolonization.
Sources of international law
ICJ Statute, art. 38
International conventions (treaty-law)
International custom, as evidence of a general practice
accepted as law.
1. State practice = consistent actions and statements made
by states. It has to be widespread and consistent.
2. Opinion juris = acceptance of a practice as law as legally
obligated. The official institutes need to believe it’s a legal
obligation, not because it’s tradition.
The general principles of law recognized by civilized nations.
Subject to the provisions of Article 59, judicial decisions and
the teachings of the most highly qualified publicists of the
various nations
Sources in Mauritius Advisory Opinion (paras 144-162)
Treaty Law: UN Charter but doesn’t say much about decolonization.
Customary Law: is the right to self-determination been formed?
Statehood
Criteria:
Montevideo-convention
1. Permanent population
2. Defined territory
3. Government
4. Capacity to enter into relations with other states.
recognition
Declaratory (not constitutive)
An entity doesn’t have to be recognized as state to be a state.
, Self determination
In decolonization context (Resolution General Assembly 1514)
Political status: economic, social and cultural development
Immediate steps to transfer powers
Territorial integrity
In the advisory opinion
The court said there was no real agreement between the UK and
Mauritian.
It was not based on the genuine expression of the will of the people
concerned, it was forced.
The decolonization was improperly completed.
State responsibility
Articles on Responsibility of States for Internationally Wrongful Acts
(ARSIWA)
Internationally wrongful act (violation)
1. Attribution (art. 4-11 ARSIWA)
2. Breach (art. 12 ARSIWA)
But: circumstances precluding wrongfulness
Legal consequences
Cessation and non-repetition
Reparations (restitution, compensation, satisfaction).
Hoorcollege week 1b:
Human rights
Introduction to human rights law
Extensive field of law
Substantial collection of treaty’s
9 human right treaty’s
Sub treaties that cover specific rights
Sub treaties for specific right holders
Complex institutional architecture
E.g. European Court of Human Rights
Regional human rights system in Europe, VS and Africa.
Legal personality of individuals
Possess rights: can pursue claims.
Every right has a corresponding obligation.
Individuals have the rights, but the state takes the obligation.
= a vertical system.
Some rights are held by peoples a nation.
Human rights law is special because it has the capacity to bring a
case by an individual.
Introduction
Foundational subjects:
1. Sources: what is international law?
2. Subjects: to whom does it apply?
3. State responsibility: when is it violated?
4. Dispute settlement: who gets to decide?
5. Jurisdiction: what are the limits of a state’s legal order?
6. Immunity: when is jurisdiction barred?
The Chagos Archipelago
Background:
Cold war
Need for a military base for especially US army 1965 Lancaster
House Agreement between
Mauritian was not in depend.
Wasn’t an agreement full f agreement from Mauritian side
Mauritian would become in depended on if the UK could keep the
Chagos Islands
1986-1973: original civilians from the Chagos islands were forcible
removed.
From 2001: US starts using Chagos islands to transport and keep
terror suspects held, to avoid law of terror.
International dispute settlement
Advisory opinion
Types of adjudicatory bodies
Standing (permanent)
Has a bench of judges who are stand by to judge and give
opinions.
Ad hoc (temporary)
Arbitration: settled for a specific dispute. Usually, five
arbitrators instead of fifteen judges.
Contentious jurisdiction: methods of consent
Legal disputes between states, the courts power is depended on the
state’s consent.
Special agreement, art. 36 (1) ICJ Statute Art. = mini treaty
Is a backward looking method the dispute has already
occurred.
Compromissory clause, art. 36 (1) ICJ Statute Art.
Is a forward-looking method the dispute hasn’t occurred. It’s
for dispute’s that will occur in the future.
Optional clause declaration, ICJ Statute art. 36 (2). Quite
specific to the ICJ.
Is a looking forward method The dispute hasn’t occurred
Forum prorogatum, ICJ Rules art. 38 (5)
Advisory jurisdiction (UN Charter art. 96)
Not disputes, rather questions.
Non-binding, just advice to the requesting body. But they are highly
authored.
, Discretion to decline (ICJ Statute art. 65)
When it might be inappropriate to provide an advice. This follows out
of the term ‘may’ instead of ‘shall’. In some situations, the court
must give advice, then the term ‘shall’ will be used.
Mauritian aadvisory opinion
The ICJ had to check two things.
1. Process of decolonization: was it lawfully?
2. If there were legal consequences
Discretion (paras 64-91)
4th reason circumvention of principle consent (paras 83-91).
The UK didn’t give consent to give the ICJ jurisdiction, so the
general assembly asked for an advisory opinion.
It was decided that it wasn’t just a bilateral dispute but that it
involved more parties of the UN who are involved with
decolonization.
Sources of international law
ICJ Statute, art. 38
International conventions (treaty-law)
International custom, as evidence of a general practice
accepted as law.
1. State practice = consistent actions and statements made
by states. It has to be widespread and consistent.
2. Opinion juris = acceptance of a practice as law as legally
obligated. The official institutes need to believe it’s a legal
obligation, not because it’s tradition.
The general principles of law recognized by civilized nations.
Subject to the provisions of Article 59, judicial decisions and
the teachings of the most highly qualified publicists of the
various nations
Sources in Mauritius Advisory Opinion (paras 144-162)
Treaty Law: UN Charter but doesn’t say much about decolonization.
Customary Law: is the right to self-determination been formed?
Statehood
Criteria:
Montevideo-convention
1. Permanent population
2. Defined territory
3. Government
4. Capacity to enter into relations with other states.
recognition
Declaratory (not constitutive)
An entity doesn’t have to be recognized as state to be a state.
, Self determination
In decolonization context (Resolution General Assembly 1514)
Political status: economic, social and cultural development
Immediate steps to transfer powers
Territorial integrity
In the advisory opinion
The court said there was no real agreement between the UK and
Mauritian.
It was not based on the genuine expression of the will of the people
concerned, it was forced.
The decolonization was improperly completed.
State responsibility
Articles on Responsibility of States for Internationally Wrongful Acts
(ARSIWA)
Internationally wrongful act (violation)
1. Attribution (art. 4-11 ARSIWA)
2. Breach (art. 12 ARSIWA)
But: circumstances precluding wrongfulness
Legal consequences
Cessation and non-repetition
Reparations (restitution, compensation, satisfaction).
Hoorcollege week 1b:
Human rights
Introduction to human rights law
Extensive field of law
Substantial collection of treaty’s
9 human right treaty’s
Sub treaties that cover specific rights
Sub treaties for specific right holders
Complex institutional architecture
E.g. European Court of Human Rights
Regional human rights system in Europe, VS and Africa.
Legal personality of individuals
Possess rights: can pursue claims.
Every right has a corresponding obligation.
Individuals have the rights, but the state takes the obligation.
= a vertical system.
Some rights are held by peoples a nation.
Human rights law is special because it has the capacity to bring a
case by an individual.
