Public International Law
Hoorcollege 2
Case Mr. Ahmed
- Mr Ahmed refused to pay. He started looking for assets, which he could sell.
- He came to the Netherlands for lawyers.
Assume: the Supreme Court has agreed with Mr Ahmed. The bailer, who was hired, went
to pursue Vanilla cake. There was an executorial sale.
- There is a chance that the DRC would not like this event.
- This could lead to a dispute between Holland and the DRC.
- How does countries solve this kind of disputes?
Dispute settlement
- How do states solve their disputes?
- Methods:
1. Diplomatic methods: include methods that states choose in a friendly matter. For
example by means of negotiation.
- Good offices: the dispute is so difficult, so states don’t want to talk to each other.
Then bring in a third party, who can provide a neutral territory.
- Third party sometimes has a more active role, than only providing an office.
- Mediation: talk to both parties and try to find out what the issues are, in order
to find a common ground.
- Inquire: Third party might even do some inquiry.
- Conciliation: Third party suggests solutions.
2. Judicial methods: means dispute settlement on the basis of law; rules. By means
of an arbitrarily tribunal or a court, which will make a determination that will be
binding upon the parties.
- Two forms:
a. Arbitration: traditional method.
- Arbitrary tribunal, which is established ad hoc, for a specific dispute by
parties. Can only act on the terms of reference.
- The parties establish this tribunal, and they agree how it will function.
- Parties have a lot of freedom; how it is composed (mostly uneven
number), the rules of procedure, choose to have it solved behind closed
doors.
- Ad hoc: there are no standing tribunals. There is the PCA, but it is not a
standing arbitrary tribunal. It only facilitates arbitration. There are judges,
which you can choose, and procedural rules.
b. Judicial
- Before a standing court, which is always available for disputing states
- Judges, which have been elected or chosen by states who have established
this court.
- The procedural rules have already been laid out.
- Both will decide on the rules of public international law.
- Both decisions are binding.
- International Court of Justice is the example of an established court. Not the
only standing court. Also the International Criminal Court for example, which is
responsible for deciding upon individual rather than upon states.
, Requirements
1. Consent
2. Existence of a dispute
- The requirement is that states needs consent. This derives directly from their
sovereignty.
- If a state is sovereign, there is no higher authority. Therefore, if a state aims to have a
dispute solve, it must specifically consent with the jurisdiction of that body.
- How do they express their consent?
1. Express consent through an agreement. Write it down on paper. This is the most
obvious way.
2. By means of a compromissory clause, which is a dispute resolution clause,
included in a general treaty. It is not uncommon to include a provision in a treaty,
by which the parties of that treaty agree, that they will submit any dispute in
relation to that treaty according that treaty to a specific method.
They consent in advance.
When becoming a state party to that treaty, than also accepts this clause.
Very common practice under domestic law and PIL.
- Two methods. Two other means of expressing consent to a court, which are unique for
the International Court of Justice:
1. Submitting a unilateral declaration on the basis of art. 36 paragraph 2 of the
Statute of the ICJ.
- The optional clause.
- Declaration entails, that the state making that declaration, accepts in advance
the jurisdiction of the ICJ for any dispute it may have in the future.
- A general acceptance of the jurisdiction of the ICJ.
- One condition: the other state has also submitted a similar declaration.
- Both states, which have a dispute, need to have made this declaration.
- 73 member states of the UN have made this, including the NL.
2. Forum prorogatum
- Exceptional method to express consent.
- Accepting an invitation of another state to appear before the court.
- Based on the rules of procedure of the ICJ. Art. 36 paragraph 5 Statute ICJ.
- Even though there is no clause, no agreement, or anything else, than the ICJ still
has jurisdiction.
- So consent is the most important requirement for jurisdiction.
- The second requirement is the existence of a dispute.
- This seems to be unique for the ICJ. It follows from the provisions of art. 38 and art. 36
(2). These refer to the existence of a dispute. The requirement of a dispute.
- Confirmed by ICJ in 2016 in a dispute between the Marshall Islands and
India/Pakistan/UK. Marshall Island is small Island state. A number of islands were used
by the US as a nuclear weapon site. Nuclear weapons were tested here. The MI has
strong interest in creating a weapon free world.
- In 1968 large number of states agree to the non-proliferation treaty. The nuclear
weapon states agreed on a Nuclear Treaty. They weren’t allowed to spread their
knowledge to other states. That would facilitate in the future. From 1968 they agreed to
negotiate. Now in 2018 there are more nuclear weapons than ever. Parties haven’t done
much. And this is what the MI said in court. Only UK and Pakistan had consented with
the jurisdiction of the court. Claimed that they haven’t done anything.
Hoorcollege 2
Case Mr. Ahmed
- Mr Ahmed refused to pay. He started looking for assets, which he could sell.
- He came to the Netherlands for lawyers.
Assume: the Supreme Court has agreed with Mr Ahmed. The bailer, who was hired, went
to pursue Vanilla cake. There was an executorial sale.
- There is a chance that the DRC would not like this event.
- This could lead to a dispute between Holland and the DRC.
- How does countries solve this kind of disputes?
Dispute settlement
- How do states solve their disputes?
- Methods:
1. Diplomatic methods: include methods that states choose in a friendly matter. For
example by means of negotiation.
- Good offices: the dispute is so difficult, so states don’t want to talk to each other.
Then bring in a third party, who can provide a neutral territory.
- Third party sometimes has a more active role, than only providing an office.
- Mediation: talk to both parties and try to find out what the issues are, in order
to find a common ground.
- Inquire: Third party might even do some inquiry.
- Conciliation: Third party suggests solutions.
2. Judicial methods: means dispute settlement on the basis of law; rules. By means
of an arbitrarily tribunal or a court, which will make a determination that will be
binding upon the parties.
- Two forms:
a. Arbitration: traditional method.
- Arbitrary tribunal, which is established ad hoc, for a specific dispute by
parties. Can only act on the terms of reference.
- The parties establish this tribunal, and they agree how it will function.
- Parties have a lot of freedom; how it is composed (mostly uneven
number), the rules of procedure, choose to have it solved behind closed
doors.
- Ad hoc: there are no standing tribunals. There is the PCA, but it is not a
standing arbitrary tribunal. It only facilitates arbitration. There are judges,
which you can choose, and procedural rules.
b. Judicial
- Before a standing court, which is always available for disputing states
- Judges, which have been elected or chosen by states who have established
this court.
- The procedural rules have already been laid out.
- Both will decide on the rules of public international law.
- Both decisions are binding.
- International Court of Justice is the example of an established court. Not the
only standing court. Also the International Criminal Court for example, which is
responsible for deciding upon individual rather than upon states.
, Requirements
1. Consent
2. Existence of a dispute
- The requirement is that states needs consent. This derives directly from their
sovereignty.
- If a state is sovereign, there is no higher authority. Therefore, if a state aims to have a
dispute solve, it must specifically consent with the jurisdiction of that body.
- How do they express their consent?
1. Express consent through an agreement. Write it down on paper. This is the most
obvious way.
2. By means of a compromissory clause, which is a dispute resolution clause,
included in a general treaty. It is not uncommon to include a provision in a treaty,
by which the parties of that treaty agree, that they will submit any dispute in
relation to that treaty according that treaty to a specific method.
They consent in advance.
When becoming a state party to that treaty, than also accepts this clause.
Very common practice under domestic law and PIL.
- Two methods. Two other means of expressing consent to a court, which are unique for
the International Court of Justice:
1. Submitting a unilateral declaration on the basis of art. 36 paragraph 2 of the
Statute of the ICJ.
- The optional clause.
- Declaration entails, that the state making that declaration, accepts in advance
the jurisdiction of the ICJ for any dispute it may have in the future.
- A general acceptance of the jurisdiction of the ICJ.
- One condition: the other state has also submitted a similar declaration.
- Both states, which have a dispute, need to have made this declaration.
- 73 member states of the UN have made this, including the NL.
2. Forum prorogatum
- Exceptional method to express consent.
- Accepting an invitation of another state to appear before the court.
- Based on the rules of procedure of the ICJ. Art. 36 paragraph 5 Statute ICJ.
- Even though there is no clause, no agreement, or anything else, than the ICJ still
has jurisdiction.
- So consent is the most important requirement for jurisdiction.
- The second requirement is the existence of a dispute.
- This seems to be unique for the ICJ. It follows from the provisions of art. 38 and art. 36
(2). These refer to the existence of a dispute. The requirement of a dispute.
- Confirmed by ICJ in 2016 in a dispute between the Marshall Islands and
India/Pakistan/UK. Marshall Island is small Island state. A number of islands were used
by the US as a nuclear weapon site. Nuclear weapons were tested here. The MI has
strong interest in creating a weapon free world.
- In 1968 large number of states agree to the non-proliferation treaty. The nuclear
weapon states agreed on a Nuclear Treaty. They weren’t allowed to spread their
knowledge to other states. That would facilitate in the future. From 1968 they agreed to
negotiate. Now in 2018 there are more nuclear weapons than ever. Parties haven’t done
much. And this is what the MI said in court. Only UK and Pakistan had consented with
the jurisdiction of the court. Claimed that they haven’t done anything.
