International Courts and Tribunals Advisory Opinions and States and International Law

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International Courts and Tribunals Advisory
Opinions and States and International Law

• Lecture 18
• February 23

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ASSIGNMENT

• Wednesday, February 25
• III. States and International Law
• Tinoco Arbitration
• Kadic v. Karadzic
• VI. Individuals and International Law
• The Nottebohm Case (start)
• Individuals as subjects of intl law
• Proposal due TODAY
• Midterm, March 2 EKLCE 1B20
• Wednesday, March 4 Guest Speaker
• Adjunct Professor David Akerson
• TODAY
• Advisory Opinion on the Western Sahara

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ICJ

• Judgment is binding for the parties, ICJ Statute
  Art.59
  
• Not a binding source of intl law subsidiary
  source ICJ Stat. Art.38(1)(d)
  
• Judgment is final without appeal ICJ Stat. Art.
  60
  
• Judgment may be revised Art.61
• Parties must comply with ICJs decision UN
  Charter, Chapter VII, Art. 94(1)
  
• If a party fails to comply with ICJs decision
  other party may go to UN Security Council which
  may make recommendations, or decide upon measures
  UN Charter, Chapter VII, Art.94(2) To date,
  its never happened!

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3 ways ICJ to obtain jurisdiction over a case

• In contentious cases need mutual consent of the
  states involved how can such consent be
  granted?
  
• 1) Special agreement ICJ Stat. Art. 36(1)
• 2) via a compromissory clause in a treaty entered
  into advance of a particular dispute arising Art.
  36(1)
  
• 3) through Art.36(2) declarations compulsory
  jurisdiction of the Court.

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Diplomatic and Consular Staff Case

• Issue
• (1) May the ICJ render a judgment in a case betw.
  sovereign states where one state fails to appear
  on the basis that it contends the Court has no
  jurisdiction over the case?
• (2) Does the ICJ have jurisdiction over disputes
  betw. states which concern diplomatic and
  consular premises and the detention of
  internationally protected persons?
• (3) May a govt be responsible for the illegal
  acts of its citizens toward foreign diplomats?

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ADVISORY OPINIONS

• Only states can be parties to cases brought to
  the ICJ
  
• International organizations cannot be parties to
  a contentious case, but they request
  
• Advisory opinions
• Any legal question
• - General Assembly or Security Council
• - specialized agency must be authorized to
  request opinions from the ICJ download chart of
  UN system on class website
  
• - opinion requested must be on a legal question
• - request must be an international law question
  arising within the scope of the activities of the
  requesting agency
  
• Advisory opinions are not binding, but have
  contributed to the development on international
  law
  
• Except in case of dispute betw. UN and a member
  state of the UN in regard to the interpretation
  of Convention on the Privileges and Immunities of
  the UN.
• Article VIII, Section 30 the Advisory opinion
  is decisive for the parties to the dispute

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Western Sahara

• 1. Court
• 2. Sources
• 3. Facts
• 4. Issue
• 5. Holding and Decision
• 6. Reasoning
• 7. Significance of case

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Western Sahara

• Issues
• (1) Is the consent of an interested state
  relevant for the appreciation of the propriety of
  giving an opinion?
  
• (2) Was Western Sahara at the time of
  colonization by Spain terra nullis?
  
• (3) Did either Morocco or Mauritania have a legal
  ties to Western Sahara at the time it was
  colonized by Spain?

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Recognition of states

• Declaratory theory prevailing theory
  recognition only a political move recognition
  not required for the new state to be considered
  legitimate. Recognition merely declares or
  acknowledges the existing fact of statehood.
• Constitutive theory more historic - members of
  the intl community must recognize a state for it
  to establish its de jure intl legal personality

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Recognition of governments

• Only relevant where there has been an
  unconstitutional change in government - a coup/
  revolution or similar irregular change of govt.
  
• -Normally Its an internal matter which
  government represents a state.
  
• -Recognition is a purely political move.
• Recognition of new governments may be lawfully
  withheld or withdrawn

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TINOCO CLAIMS ARBITRATION

• 1. Court
• 2. Sources
• 3. Facts
• 4. Issue
• 5. Holding and Decision
• 6. Reasoning
• 7. Significance of case