Public International Law – Week 1
International Dispute Settlement
- Fundamentals of IDS
Contentious Jurisdiction: methods of consent
o Contentious cases: (legal) disputes between two or more states (and states only)
o The parties have given their consent
There are very specific rules for consent
o The judgements that it delivers, are binding
o Four different methods for giving consent
1. Special Agreement (ICJ Statute; art. 36(1)) (not specific to the ICJ)
‘Compromise’; a treaty
“all cases which the parties refer to”
Over an existing dispute
2. Compromissory clause (ICJ Statute; art. 36(1)) (not specific to the ICJ)
A clause that’s in a treaty
“all matters specially provided for …. or in treaties and conventions in
force”
There is already a basis for consent
It can be relied upon many years later: if there’s a dispute, the parties have
already consented
3. Optional clause declarations (ICJ Statute; art. 36(2))
States declare that in all future disputes they will submit to the jurisdiction
of the Court
Reservations that restrict certain types of disputes (unilateral statements)
4. Forum prorogatum (ICJ Rules; art. 36(5))
Last resort
It allows the consent of the would-be respondent state to accept the
Court’s jurisdiction after an applicant state has already filed a case against
the to-be respondent state
International Court of Justice
- International dispute settlement; two ways
1. Contentious jurisdiction
o Binding
2. Advisory jurisdiction
o Non-binding (not strictly speaking)
- Advisory jurisdiction
Art. 96 UN Charter
o Two groups
1. General Assembly or the Security Council
2. Other organs: organizations
Art. 65 ICJ Statute advisory jurisdiction
o It must contain a ‘legal question’ (not disputes between states)
The Court has the discretion to decline (ICJ Statute art. 65)
‘The court may give an advisory opinion’
If there is an advisory opinion, you don’t need the consent of the State
Often, they (the ICJ) will try to frame the question in such a way that they don’t
need to answer the legal dispute
- Art. 36(1) jo. art. 38(1) ICJ Statute contentious jurisdiction
o Legal dispute
,Statehood
- What is a state?
States are the actors that create the law and to whom the law applies
What conditions have to be met in order for an entity to be a state?
- Statehood criteria
Montevideo Convention art. 1
o Permanent population
It can be small, but it has to be permanent as supposed to transitory
o Defined territory
It can be small and getting smaller and it can have some contestant borders
o Government
Can be undemocratic and ineffective, at long as it has public order
o Capacity to enter into relations with other states
Independence
Greenland itself doesn’t have this capacity
Recognition
o What role does recognition by other states play in this picture?
o The current state of opinion is that recognition has a declaratory effect rather than a
constitutive effect (declaratory theory)
o Recognition by other states has the effect of acknowledging what is already a state
o It does not have the effect of bringing an entity into statehood
Right to self-determination
- All people are entitled to ‘freely determine their political status and freely pursue their
economic, social and cultural development’ (ICCPR art. 1)
External dimension: the right to create a new state, especially in the context of
decolonization
Internal: the right to self-determination in an existing state’s framework
The Chagos Archipelago
- Background (paras 92-121)
Cold War and wave of decolonization
1965 Lancaster House Agreement
o The UK wanted to give independence to Mauritius if they give them the Chagos
Archipelago
o No valid consent; Council of Ministers didn’t exercise any real authority
1965 British Indian Ocean Territory established
1968-1973 Forcible removal
o Prohibited to returning of the inhabitants
Post 2001 Extraordinary renditions
o After 9/11 the US began using Diego Garcia as a transfer of terrorist suspects
- Legal questions
Was Mauritius’ decolonization process in compliance with international law, particularly
concerning what happened with the Chagos Archipelago?
o The Court concludes that the detachment of the Chagos Archipelago was not based
on the free and genuine will of the territory’s people
o The decolonization process was not lawfully concluded
What are the legal consequences under international law of the continued
administration by the UK of the Chagos Archipelago?
The law on state responsibility
, - International Law Commission: Articles on Responsibility of States for Internationally
Wrongful Acts (ARSIWA)
Non-binding instrument, but many of the articles reflect customary international law
o The process by which unwritten international laws are made, annulled and changed
General practice (objective)
Opinio iuris (subjective: engage in practice because of sense of legal obligation)
Such that the document itself has great authority
- Internationally Wrongful Act (violation)
Attribution (ARSIWA arts 4-11)
o Was the conduct of issue actually a conduct of a state?
The act/omission must be attributable to the state (ARSIWA art. 2)
o ARSIWA art. 4
Only actions of state organs are attributed to the state: any person or entity
which has that status in accordance with the internal law of the State
In principle, actions of private individuals and private entities are not attributed
to the State, but there are exceptions
If the state has engaged a company to perform public tasks (art. 5 ARSIWA)
If the state gives instructions to or exercises control over private persons
(art. 8 ARSIWA)
Group under the direction or effective control of a state
Effective control over every operation
If the state accepts and recognizes an act retrospectively as if it were its
own act (art. 11 ARSIWA)
Breach (ARSIWA art. 12)
o Was there an actual breach of that states’ legal obligation?
The act must breach an international legal obligation of the sate (doesn’t require
having caused harm to another state)
- Remedies: legal consequences under ARSIWA
Reparation: art. 31 jo. art. 35/36 (and 37) ARSIWA
o Focused on repairing the harm that’s been done
o Backwards looking
Restitution
o Re-establish situation that existed before wrongful act committed (art. 35 ARSIWA)
Many situations in where the damage can’t fully be undone
Then compensation would be appropriate: money that compensates for the
harm that’s been done, only ‘financially assessable damage, including loss of
profits’ (art. 36 ARSIWA)
Satisfaction if neither of the two suffices
Cessation
o Stop engaging in continuing wrongful acts so as to comply with legal obligation (art.
30 ARSIWA)
o Forward looking in character
o Only relevant when the wrongful act is still going on
Non-repetition
o A guarantee that they won’t engage in that behaviour in the future (art. 30 ARSIWA)
- What do I need to establish that there was an internationally wrongful act?
There is an internationally wrongful act of a State when conduct consisting of an action
or omission
o Is attributable to the State under international law; and
o Constitutes a breach of an international obligation of the State
Art. 2 ARSIWA
International Dispute Settlement
- Fundamentals of IDS
Contentious Jurisdiction: methods of consent
o Contentious cases: (legal) disputes between two or more states (and states only)
o The parties have given their consent
There are very specific rules for consent
o The judgements that it delivers, are binding
o Four different methods for giving consent
1. Special Agreement (ICJ Statute; art. 36(1)) (not specific to the ICJ)
‘Compromise’; a treaty
“all cases which the parties refer to”
Over an existing dispute
2. Compromissory clause (ICJ Statute; art. 36(1)) (not specific to the ICJ)
A clause that’s in a treaty
“all matters specially provided for …. or in treaties and conventions in
force”
There is already a basis for consent
It can be relied upon many years later: if there’s a dispute, the parties have
already consented
3. Optional clause declarations (ICJ Statute; art. 36(2))
States declare that in all future disputes they will submit to the jurisdiction
of the Court
Reservations that restrict certain types of disputes (unilateral statements)
4. Forum prorogatum (ICJ Rules; art. 36(5))
Last resort
It allows the consent of the would-be respondent state to accept the
Court’s jurisdiction after an applicant state has already filed a case against
the to-be respondent state
International Court of Justice
- International dispute settlement; two ways
1. Contentious jurisdiction
o Binding
2. Advisory jurisdiction
o Non-binding (not strictly speaking)
- Advisory jurisdiction
Art. 96 UN Charter
o Two groups
1. General Assembly or the Security Council
2. Other organs: organizations
Art. 65 ICJ Statute advisory jurisdiction
o It must contain a ‘legal question’ (not disputes between states)
The Court has the discretion to decline (ICJ Statute art. 65)
‘The court may give an advisory opinion’
If there is an advisory opinion, you don’t need the consent of the State
Often, they (the ICJ) will try to frame the question in such a way that they don’t
need to answer the legal dispute
- Art. 36(1) jo. art. 38(1) ICJ Statute contentious jurisdiction
o Legal dispute
,Statehood
- What is a state?
States are the actors that create the law and to whom the law applies
What conditions have to be met in order for an entity to be a state?
- Statehood criteria
Montevideo Convention art. 1
o Permanent population
It can be small, but it has to be permanent as supposed to transitory
o Defined territory
It can be small and getting smaller and it can have some contestant borders
o Government
Can be undemocratic and ineffective, at long as it has public order
o Capacity to enter into relations with other states
Independence
Greenland itself doesn’t have this capacity
Recognition
o What role does recognition by other states play in this picture?
o The current state of opinion is that recognition has a declaratory effect rather than a
constitutive effect (declaratory theory)
o Recognition by other states has the effect of acknowledging what is already a state
o It does not have the effect of bringing an entity into statehood
Right to self-determination
- All people are entitled to ‘freely determine their political status and freely pursue their
economic, social and cultural development’ (ICCPR art. 1)
External dimension: the right to create a new state, especially in the context of
decolonization
Internal: the right to self-determination in an existing state’s framework
The Chagos Archipelago
- Background (paras 92-121)
Cold War and wave of decolonization
1965 Lancaster House Agreement
o The UK wanted to give independence to Mauritius if they give them the Chagos
Archipelago
o No valid consent; Council of Ministers didn’t exercise any real authority
1965 British Indian Ocean Territory established
1968-1973 Forcible removal
o Prohibited to returning of the inhabitants
Post 2001 Extraordinary renditions
o After 9/11 the US began using Diego Garcia as a transfer of terrorist suspects
- Legal questions
Was Mauritius’ decolonization process in compliance with international law, particularly
concerning what happened with the Chagos Archipelago?
o The Court concludes that the detachment of the Chagos Archipelago was not based
on the free and genuine will of the territory’s people
o The decolonization process was not lawfully concluded
What are the legal consequences under international law of the continued
administration by the UK of the Chagos Archipelago?
The law on state responsibility
, - International Law Commission: Articles on Responsibility of States for Internationally
Wrongful Acts (ARSIWA)
Non-binding instrument, but many of the articles reflect customary international law
o The process by which unwritten international laws are made, annulled and changed
General practice (objective)
Opinio iuris (subjective: engage in practice because of sense of legal obligation)
Such that the document itself has great authority
- Internationally Wrongful Act (violation)
Attribution (ARSIWA arts 4-11)
o Was the conduct of issue actually a conduct of a state?
The act/omission must be attributable to the state (ARSIWA art. 2)
o ARSIWA art. 4
Only actions of state organs are attributed to the state: any person or entity
which has that status in accordance with the internal law of the State
In principle, actions of private individuals and private entities are not attributed
to the State, but there are exceptions
If the state has engaged a company to perform public tasks (art. 5 ARSIWA)
If the state gives instructions to or exercises control over private persons
(art. 8 ARSIWA)
Group under the direction or effective control of a state
Effective control over every operation
If the state accepts and recognizes an act retrospectively as if it were its
own act (art. 11 ARSIWA)
Breach (ARSIWA art. 12)
o Was there an actual breach of that states’ legal obligation?
The act must breach an international legal obligation of the sate (doesn’t require
having caused harm to another state)
- Remedies: legal consequences under ARSIWA
Reparation: art. 31 jo. art. 35/36 (and 37) ARSIWA
o Focused on repairing the harm that’s been done
o Backwards looking
Restitution
o Re-establish situation that existed before wrongful act committed (art. 35 ARSIWA)
Many situations in where the damage can’t fully be undone
Then compensation would be appropriate: money that compensates for the
harm that’s been done, only ‘financially assessable damage, including loss of
profits’ (art. 36 ARSIWA)
Satisfaction if neither of the two suffices
Cessation
o Stop engaging in continuing wrongful acts so as to comply with legal obligation (art.
30 ARSIWA)
o Forward looking in character
o Only relevant when the wrongful act is still going on
Non-repetition
o A guarantee that they won’t engage in that behaviour in the future (art. 30 ARSIWA)
- What do I need to establish that there was an internationally wrongful act?
There is an internationally wrongful act of a State when conduct consisting of an action
or omission
o Is attributable to the State under international law; and
o Constitutes a breach of an international obligation of the State
Art. 2 ARSIWA
