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IDS Essay and PQ Notes
International law requires that dispute settlement must be by peaceful means.
Art 2(3), UN Charter: "All Members shall settle their international disputes by peaceful means in such a manner that international peace and security and justice, are not endangered."
Yugoslavia v Belgium (Legality of the Use of Force): Art 2(3) states customary international law.
Declaration on Principles of International Law concerning Friendly Relations 1970: "Every
State shall settle its international disputes with other States by peaceful means in such a manner that international peace and security and justice are not endangered."
The choice of means is for the parties to determine.
Art 33, UN Charter:
"1. The parties to any dispute, the continuance of which is likely to endanger the maintenance of international peace and security, shall, first of all, seek a solution by negotiation, enquiry,
mediation, conciliation, arbitration, judicial settlement, resort to regional agencies or arrangements, or other peaceful means of their own choice.
2. The Security Council shall, when it deems necessary, call upon the parties to settle their dispute by such means."
Status of Eastern Carelia, PCIJ Ser B No 5 (1923), p. 27: "It is well established in international law that no State can, without its consent, be compelled to submit its disputes with other States either to mediation or to arbitration, or to any other kind of pacific settlement."
The role of the Court
Art 92, UN Charter: The ICJ is the "principal judicial organ" of the UN.
Art 93(1) of the UN Charter: "All Members of the United Nation are ipso facto parties to the
Statute of the International Court of Justice"
Chapters I, II, ICJ Statute: The ICJ has 15 judges chosen by the UN General Assembly and
Traditionally each of the P5 has been represented, but recently the British judge Christopher
Greenwood failed to be re-elected.
Art 31, ICJ Statute: if parties to a dispute do not have a judge of its nationality overseeing the dispute, they can agree to appoint an ad hoc judge for this purpose.
Arts 34 ICJ Statute: Only states may be parties before the court.
Mitigated by the law on diplomatic protection
Study Group on the ICJ:
Neither international personality nor the capacity to bring claims is restricted to
States, as the ICJ itself affirmed in the Reparations case. It is then not logically obvious why the UN and specialised agencies should be excluded from using the ICJ
The use of arbitration or advisory opinions in disputes between these organisations and States is inadequate, because it is important that public international organisations should be held legally accountable to States and vice versa.
On the other hand, there is little demand for direct standing from the organisations themselves.
Furthermore, if disputes between States and international organisations were to go to the ICJ, they would add to the pressure on the its list.
There is no strong present support for the idea that individuals should be given locus standi. Opening up the ICJ to individuals would also add to the pressure on its list.
Furthermore, there are other fora in which human rights cases by individuals can be pursued.
Art 36(6), ICJ Statute: "In the event of a dispute as to whether the Court has jurisdiction, the matter shall be settled by the decision of the Court."
Art 59 ICJ Statute: The decisions of the ICJ have no binding force except between the parties and in respect of the particular case.
Three general stages of dispute: preliminary stage (jurisdiction and admissibility), merits stage, reparations stage.
Nicaragua v Honduras (Jurisdiction and Admissibility): SO of Judge Oda: "When considering the jurisdiction of the ICJ in contentious cases, I take as my point of departure the conviction that the Court's jurisdiction must rest upon the free will of sovereign States,
clearly and categorically expressed, to grant the Court the competence to settle the dispute in question."
Legality of Use of Force (Yugoslavia v Belgium), Congo Case (Congo v Rwanda): The ICJ's jurisdiction in contentious cases depends on the consent of states.
A Jurisdiction under Art 36(1), ICJ Statute
Art 36(1), Statute of the ICJ: "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."
1. "Which the parties refer to it". Article 40(1)
Cases the parties refer to the ICJ by special agreement.
Danube Dam: Jurisdiction was established by special agreement between Hungary and
Libya v Chad: Jurisdiction was established by special agreement between Libya and Chad.
Burkina Faso/Mali: jurisdiction established by special agreement. Burkina Faso, in its memorial, asked for clarification with regard to certain points outside the agreement. No jurisdiction there.
2. "Matters specially provided for in the Charter of the United Nations"
Harris, Dixon: This phrase was designed to trigger a jurisdictional clause at a time when it was hoped that the UN Charter would provide for the ICJ to have compulsory jurisdiction.
However, no such clause survived in the final text in the UN Charter, and the phrase has no meaning.
Pakistan v India (Case Concerning the Aerial Incident of 10 August 1999): Pakistan attempted to rely on Art 36(1). Its argument was rejected on the ground that the UN Charter contains no jurisdictional clause.
Corfu Channel: The UK argued that these words could be interpreted to refer to a SC
resolution which recommended that the parties submit their dispute to the Court. This argument was rejected in the SO of Judges Basdevant, Alvarez, Winiasrski, Zoricic, De
Visscher, Badawi and Krylov. Their view was that the SC could make only
"recommendations", and they affirmed that the basic principle of jurisdiction was that it was fundamentally consensual.
3. "Treaties and conventions in force"
First, there must be a binding treaty in which states have accepted the jurisdiction of the ICJ
Doesn't have to be a formal treaty. Qatar v Bahrain: The ICJ decided that meeting minutes between the parties constituted 'international agreements creating rights and obligations for the Parties' and 'by the terms of those agreements the Parties had undertook to submit to the
Court the whole of the dispute between them".
Did Qatar and Bahrain consent to the ICJ's jurisdiction in this case? Difficult issue. The decision to treat the Doha agreement as a sufficient basis of jurisdiction has rightly been seen by some to be extremely puzzling, given the drafting history and language of that agreement. The majority placed particular emphasis on the fact that the 1991 agreed minutes provided that, if Saudi Arabia could not bring about a settlement within the prescribed time, the parties 'may' refer the matter to the Court. Since parties were free to conclude special agreements at any time, the Court thought that this expression was otiose if only a compromis were envisaged. But this reasoning, it is submitted, failed to give proper weight to the fact that the purpose of this provision was plainly to try and keep the dispute within the family rather than to constitute a special agreement.
Greece v Turkey (Aegean Sea Continental Shelf): A "joint communique" issued by the Greek and Turkish PMs was not a treaty because an intention to create legal relations could not be found.
Second, is there a dispute about the interpretation or application of that treaty?
Libya v USA and UK (Lockerbie): The US and UK argued that Libya was under a duty under the Montreal Convention to surrender the alleged bombers to stand trial. Libya disagreed.
Libya brought a claim against the US and UK for a violation of the Convention. The ICJ held that there existed a legal dispute concerning the Convention because the States disagreed about whether it applied, and therefore about its interpretation or application.
*Iran v USA (Oil Platforms) (1992). Facts: The US attacked Iranian oil platforms during the
Iran-Iraq War of 1980-88. Iran brought a claim against the US for a violation of the bilateral
Treaty of Amity. The ICJ found that it had jurisdiction under Article 10(1) of the Treaty:
"Between the territories of the two High Contracting Parties there shall be freedom of commerce and navigation". Analysis: However, this sole basis of jurisdiction limited the scope of the court's legal assessment - it could not consider whether the attacks constituted a violation of the UN Charter or CIL concerning prohibition of the use of force. Also, whether
Article 20(1)(d) (essential security interests) provided a defence to a breach of Article 10(1)
depends on finding a breach of Article 10(1) first, but this was not found. Verdict: At the merits stage, instead of asking if (1) if there has been a violation of Article 10(1) and (2) if this violation was justified by self-defence, the ICJ inverted the order of questions. By addressing the issue of self-defence first, the Court would address whether the use of force cohered with general international law. No violation of Article 10(1) was found eventually.
Iran had clearly shoehorned an essentially use of force dispute into the Treaty of Amity. The
ICJ was cognisant of this: "It is clear that the original dispute between the Parties related to the legality of the actions of the United States, in the light of international law on the use of force'; and 'both Parties are agreed as to the importance of the implications of the case in the field of the use of force ... The Court therefore considers that, to the extent that its jurisdiction ... authorizes it to examine and rule on such issues, it should do so."
Cannizzaro & Bonafé: the 'compartmentalization effect' of compromissory clauses - they draw a dividing line between categories of disputes which fall within their scope and those which do not. This dividing line presupposes a symmetry between the scope of the 5 .
jurisdictional clause and the law applicable to it. This symmetry is readily available if both parties make opposing claims based on the treaty alone, but not where one party invokes the treaty while the other invokes external international law to assess the conduct in question.
Such disputes, which are frequent, would not fall within the jurisdictional clause of the treaty.
They would also appear to be outside the purview of Article 36(1).
Oil Platforms show us that, despite the restrictive language of Article 36(1), treaties cannot be isolated from existing international law. International law should not be fragmented between treaties and custom. Where the application of international customary law might contribute to the settlement of a dispute concerning the applicability of a treaty, the Court will not hesitate to apply it.
But Cannizzaro & Bonafe also warn that, in line with Sir Robert Jenning's criticism in
Lockerbie, a wide interpretation of jurisdictional clauses would encourage more parties to shoe-horn disputes into seemingly unrelated treaties. Though, subsequent ICJ jurisprudence appear to quell this fear.
In Separate Opinions, different judges took different view of Oil Platforms
Judge Higgins: "It cannot, it seems to me, be 'desirable' or indeed appropriate to deal with a claim that the Court itself has categorized as a claim relating to freedom of commerce and navigation by making the centre of its analysis the international law on the use of force. And conversely, if the use of force on armed attack and selfdefence is to be judicially examined, is the appropriate way to do so through the eye of the needle that is the freedom of commerce clause of a 1955 FCN Treaty? The answer must be in the negative. These questions are of such a complexity and importance that they require a different sort of pleading and a different type of case."
Judge Buergenthal: "In this creative fashion the Court stigmatizes the actions of the
United States as a breach of inter- national law on the use of force without having the requisite jurisdiction to make such a ruling.
Judge Simma was critical of the Court not going fair enough - should have restated the law on prohibition of the use of force by way of strong, unequivocal, dicta.
Against the background of the lead-up to Operation Iraqi Freedom, it was important to reaffirm the UN Charter provisions on the use of force; the Court was the
principal judicial organ under Art 92 of the UN Charter and therefore had a role in the implementation of peace and security.
Sometimes, States parties enter reservations relating to jurisdiction clauses in treaties. An opposing State Party cannot question the validity of this reservation as a means of making the dispute about the 'interpretation and application' of a treaty. Jurisdiction does not arise even if the reservation appears to violate a jus cogens norm.
DRC v Rwanda: Rwanda intervened in the DRC conflict. The DRC brought a claim against Rwanda for a violation of the Genocide Convention. However, Rwanda had made a reservation to the compulsory dispute settlement provision in the Convention.
Was this reservation valid? First, the DRC argued that the reservation was invalid because it violated a rule of ius cogens. The ICJ disagreed - there was no jus cogens requiring a State to consent to the jurisdiction of the ICJ to settle a dispute relating to the Genocide Convention. Secondly, the DRC argued that the reservation was not incompatible with the object and purpose of the Convention. This was rejected. The reservation is only meant to exclude a particular method of dispute settlement. In his
SO, Judge ad hoc Dugard emphasized that the Court's jurisdiction is based on the consent of states, this was an established general international law. It would be a
"bridge too far" to invoke a peremptory norm to overthrow this established law.
The Court will only hear claims genuinely in respect of the treaty/convention in dispute.
Georgia v Russia (2008): Russia invaded Georgia. The latter (struggling to find a basis for jurisdiction) shoe-horned its claim against Russia for a violation of the
Convention for the Elimination of All Forms of Racial Discrimination. The Court found that between 1999 and 2008, there was no legal dispute with respect to Russia's compliance with the CERD, as Georgia had only generically complained about its military intervention. Instead, its jurisdiction is limited to August 2008, wherein
Georgia, while primarily complaining about the unlawful use of force, referred to alleged ethnic cleansing by Russia. These allegations were rejected by Russia. A
dispute as to CERD arose only then.
Macedonia v Greece: Macedonia brought a claim against Greece for a violation the Interim
Accord. Greece disagreed that it had acted in breach. The ICJ held that the question whether
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