Public International Law Week 6 | Quizlet

Articles where one can find the peaceful methods of settlement dispute

Article 33 Charter

Generally, is there an obligation for states to settle their disputes? +ex

NO

Falklands/Malvinas dispute since 1830s)

Dispute definition:

A dispute is a disagreement on a point of law or fact, a conflict of legal views or of interests between two persons (PCIJ, Mavrommatis Palestine Concessions case, 1924)

What is the main issue of dispute settlement?

Consent→ dispute settlement depends on consent from both parties. Without agreement to a certain method, attempts at dispute settlement may just be met with silence or denial

Diplomatic methods of dispute settlement

Negotiation

Fact-finding/inquiry

Good offices

Mediation

Conciliation

Negotiation

Simplest and most flexible solution

Fact-finding/inquiry

Commissions established to verify what actually happened in a situation, submit inquiries and find solutions

The Red Crusader incident

Good offices

Informal third-party involvement, usually a willing conduit for communications between disputants.

Often the UN Secretary- General

Main goal → find an acceptable for all solution

Mediation

More formal involvement by a mediator trying to ease the situation and intervene

Main goal → find an acceptable for all solution

Conciliation

- Commissions set up to come up with suggestions

- Not necessarily binding

Myan Islands case (Norway v. Iceland)

East Timor and Australia

Legal means of dispute settlement

Arbitration

Judicial settlement

Arbitration

- Permanent Court of Arbitration

- Includes the creation of other specified tribunals (e.a. International Center for Settlement for Investment Disputes)

- The states get to choose the people and tribunal that both parties want

- Awards are binding

Cons:

Requires explicit consent to go there which means many costs of establishing the entire procedure suffered by state (e.g., hotels, legal teams, judges)

Pros:

Only 3 judges compared to 15 (ICJ)

Shorter decision-making

Control over process

Judicial settlement

Dispute settlement by tribunal which hears many cases in many fields

- ICJ, 15 judges

FUN FACT: If there is no judge from your country sitting → ad hoc judge (31(2) ICJ Statute)

Two types of jurisdiction for the ICJ

Contentious jurisdiction

Advisory jurisdiction

Contentious jurisdiction

Settlement of disputes between States

→ binding decisions

What do you know about the access to the court and the jurisdiction of it when it comes to contentious jurisdiction?

Access to court:

States: Art. 34 SICJ

States parties: Art. 35(1) SICJ

Other States: Art. 35(2) SICJ

Relocation of the United States Embassy to Jerusalem (Palestine v. USA); still pending

Jurisdiction:

a) Based on consent: Art. 36 SICJ

b) Special agreement / Compromis: Art 36(1) SICJ "cases which the parties refer to it"

When both states acknowledge a dispute which already exists, they create a treaty or agreement outlining the key facts of the case and submit it to the ICJ for resolution.

c) Compromissory clause in treaty: Art 36(1) SICJ "matters specially provided in treaties and conventions in force"

The dispute does not exist yet

d) Declarations optional clause: Art 36(2) SICJ

States declaring that they recognize jurisdiction of the ICJ ipso facto without special agreement, usually excluding certain fields where they require consent

Requires reciprocity, meaning that both states need to be on equal footing

Certain Norwegian Loans case (France v Norway)

e) Forum prorogatum:

A State starts a case against another, but the responding State has not consented to the jurisdiction of the Court; nevertheless, the respondent State appears before the Court and argues the merits / substance of the dispute(s) without objecting to the jurisdiction of the Court

Without legal basis, you act in a way that gives the court jurisdiction

Djibouti v. France

What did this one judge say when it comes to reservations?

There are two options when it comes to reservations:

Exceptions are not important enough → you can delete the exception and keep the rest.

Exceptions are too central to the jurisdictional declaration → the entire declaration is null and void.

Advisory jurisdiction

Legal advice to General Assembly and Security Council, other UN organs or the specialized agencies when authorized by the General Assembly

1. non-binding

2. Request made NOT by a state

3. Conditions → independence and impartiality of the judges

Croatia v Slovenia

Evidence of the Slovenian judge exchanging information with the Slovenian legal team à no impartiality.

How did they find this? illegal wiretapping.

What was the stance on war in 19th-20th century?

- War as an expression of state sovereignty

- States saw war as a prerogative of statehood

- Reprisals were commonly invoked; you had to respond to a violation of international law

This changed in the 20th century with the rise of civil society and voices arguing the need to get away from war.

What came after?

Covenant Of the League of Nations

- Did not prohibit war but put obstacles in front.

- States were still permitted to resort to war, however before doing so the members were required to seek arbitration, judicial settlement, or involvement of the League Council, and to wait 3 months after the outcome

- First time when issues of war were considered the issues of all nations in the world, not just those in the conflict.

Ultimately, the League failed due to the dominant power (US) not becoming a party to the Covenant.

After?

Kellogg-Briand Pact

- Parties to the pact agreed to renounce war as an instrument of national policy (no war for self interest)

- Although widely ratified, the pact did not prevent violence in the 1930s.

- However, relevant after WWII in Nuremberg trials and even in UN Charter

- Treaty is technically still in force

After this pact?

The Charter of the UN

- Instead of referring to war, the UN Charter referred to the threat or use of force (Art. 2(4) Charter)

- Prohibition on the use of force was first outlined in the Kellogg-Briand Pact and was taken up in a ‘cornerstone’ provision of the UN Charter.

What does the prohibition of force and threat mean actually?

Of force: meaning any armed force (military, cyber etc.)

Of use and threat: it is unclear when a threat would fall under the prohibition because it can be considered self-defence

The lawfulness of a threat of force is judged based on whether the use of force that follows would be considered lawful.

Is the prohibition absolute?

i) Inter-state relations?

YES. Art. 2(4) UN Charter only mentions force in international relations.

ii) Force at a national level?

NO. Not covered by the article. States are allowed to suppress revolutions, riots, etc.

iii) State vs. non-state actors situated in a different country?

DEBATABLE. Argument tends to be that it will still be covered by the provision.

Still using force in another state.

When states target non-state actors, usually they invoke the right of self-defense.

The prohibition of the use of force is jus cogens?

Often considered as such. Definitely CIL

Article for the right of self defence

Article 51 UN Charter

Sources of the right to self defence

- Art. 51 UN Charter

- CIL

- Nicaragua case→ First case where self-defense is discussed in more detail. Burden of proof. You should report it to the SC

What does it mean to be acting in self defence? how do you even respond in self defense?

- You can use force to counter the attack

- You are not confined to your own territory, you can use territory of attacking state

Conditions of self defense

1. Armed attack

Conditio sine qua non

2. Against a member (state)

Includes embassies. Contentious whether ships are included

3. Report to UNSC

There is an obligation to report acts of self defence to the UNSC but failing to do so does not render self-defence illegal, just weakens a state’s claim

4. Declaration of being attacked

ICJ in Nicaragua noted that if you are the victim of an armed attack, you should make it public/declare that you are being attacked.

(5). Request for assistance (collective self-defence)

Third states need a request from the victim state to be part of the conflict.

6. Necessity

- Understood as requiring that the defending state have no other means of halting an armed attack other than the recourse to armed force.

Oil Platforms case

The US invoked necessity to justify the fact that it had attacked certain Iranian oil platforms in the Persian Gulf.

ICJ rejected the argument, noting that the US had not complained to Iran regarding any military activities before the strike.

7. Immediacy*

Depends on the context of the case (if you need 3 weeks to get to the place for instance)

8. Proportionality

Can you use military force to make states comply with international law?

NO

Resolution 2625 GA – armed reprisals are prohibited!

+ Article 50 ARSIWA – cannot take countermeasures that protect the prohibition of the use of armed force.

Armed attack

- Prohibition in article 2(3) is the use of force, but article 51 refers to armed attack; which may be confusing

Nicaragua 191

Defined that an armed attack needs to have a grave form. Scale and effect are considered

(A frontier incident would not be considered an armed attack)

Oil Platforms

Affirmation of nicaragua

Armed attacks in the sense of article 51 must involve UNLAWFUL uses of force. Cannot be invoked against lawful uses of force.

E.a. Iraq invasion of Kuwait à UNSC authorized the use of force against Kuwait, but Iraq could not invoke self-defense against the MS given authorization by the UNSC – was lawful.

Attacks by non state actors

Can you have a right of self defence against non state actors when it is unclear whether the territorial state was involved in the attack?

- Article 51 of the Charter does not mention the origin of an attack

- Nicaragua case + Oil Platform: the ICJ kept the attribution requirement in order to invoke self defence

Standards of attacks by non actors

There are some scholars which take the Standard that no linkage necessary between the non-state actor and the state (not very popular)

In general, most scholars assume there must be a relationship/link between the non-state actors and the foreign state.

First Standard - Restrictive attribution

Attribution under state responsibility (Article 8 ARSIWA). This uses effective control

E.g., Taliban – sheltered Al-Qaeda. They were aware that Al-Qaeda wanted to do something but were unaware of the details. The Taliban was occupied with internal conflicts but were in general not in favor of it. Clearly attribution in this case is not possible.

Second Standard → Substantial involvement

E.g., both the non-state and state actors acting TOGETHER. Mentioned in Nicaragua.

Third Standard →Supporting a non state actor

E.g., Nicaragua – giving weapons, intelligence, transporting may constitute use of force, but NOT an armed attack.

Fourth Standard - Harboring

A certain non state actor is present in the state, but it is unclear whether the state actually supported them

Fifth Standard - Unwilling and unable doctrine

If non-state at non-state actors commit armed actions against the foreign state and the Territorial state is unwilling to stop those or unable to stop those because they don't have control over their own territory for instance, then you could invoke self-defense and

Contested justifications for self-defence:

Anticipatory self-defense

Contentious

Preventive military action

ICJ said that you need an attack to invoke self-defence. This would be unlawful.

Protection of nationals

Something happening to your national can be considered an armed attack against the state itself– but the nationals are in a foreign country voluntarily.

- Although some states have used military force to rescue their citizens, CIL is questionable.

Humanitarian intervention and responsibility to protect

Humanitarian intervention

A doctrine which suggests that states can intervene in a foreign state when human rights are seriously violated in a widespread, systematic manner.

Yes, practice. Opinio iuris- not so much

Responsibility to protect

Governments have to protect their populations (from genocide, war crimes etc.)

Through the UN Security Council