International Courts and Tribunals

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International Courts and Tribunals

• Lecture 16
• February 18

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Assignment

• Friday, Feb.20
• Diplomatic and Consular Staff Case
• Advisory Opinion on the Western Sahara
• III. States and International Law
• Proposal due Febr.23
• Midterm, March 2 EKLCE 1B20
• Wednesday, March 4 Guest Speaker
• Adjunct Professor David Akerson
• Today
• Start International Dispute Resolution
• ILCs Draft Articles on State Responsibility
• Download and review
• http//untreaty.un.org/ilc/texts/instruments/engli
  sh/draft20articles/9_6_2001.pdf
• Rainbow Warrior Case

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US Hierarchy

• 1. US Const.
• 2.Treaties (self-executing) Federal laws -
  latter in time prevails
• Customary international law
• 3. Executive agreements Executive agreements do
  not prevail over previously enacted federal
  statutes.
• 4. State laws

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STATE RESPONSIBILITYand liability of states

• Source customary intl law
• 1)- ILC draft article to codify intl law in this
  area ILCs Draft Articles on State
  Responsibility
• DOWNLOAD THIS TREATY OR CUT AND PASTE YOULL
  NEED IT
• ILCs Draft Articles on State Responsibility
• Download and review
• http//untreaty.un.org/ilc/texts/instruments/engl
  ish/draft20articles/9_6_2001.pdf

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INTERNATIONAL WRONGS

• Responsibility for a wrongful act consequences
  arising from the BREACH OF AN INTERNATIONAL
  OBLIGATION be it breach of an agreement or
  violations of a rule of customary intl law.
  Breach of a domestic/municipal norm does not
  entail state responsibility, unless it also
  breaches an intl obligation.

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Draft Articles on State Responsibility

• Art. 1 Every international wrongful act by a
  State entails international responsibility for
  that State
• Art. 12 Breach of international obligation of a
  State when an act of that State is not in
  conformity with what is required of it by that
  obligation

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Who can bring a claim?

• Only States if the wrongful act was against one
  of the States citizens then that person has to
  exhaust the local remedies first before his State
  can bring a claim to the ICJ

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• State responsibility gives rise to the
• duty of
• REPARATIONS Art.31
• Restitution Art.35
• Compensation Art. 36
• Satisfaction Art. 37

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State Responsibility

• States cannot plead provisions of internal law in
  justification of international wrongs -
• States are responsible for conditions on their
  territory which lead to the infliction of harm on
  other states.

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Circumstances precluding (prevent) wrongfulness
and responsibility

• consent as long as its not a peremtory norm
  jus cogens.
• impossibility force majeur - unforeseen
  external event (no choice as a ship in emergency
  enters port without permission),
• distress - situation of extreme peril the organ
  of the state which adopts the conduct has no
  means of saving himself or persons entrusted in
  his care conformity with the obligation is
  possible but would result in loss of life

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Precluding wrongfulness and responsibility-2

• State of necessity - only means of safeguarding
  an essential interest of the state against a
  grave and imminent peril - exceptional
  circumstances the existence of the state,
  survival of part of its population, the
  ecological preservation all or some of its
  territory
• Self-defense
• Countermeasures
• reprisals a wrongful act becomes legal one.

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Circumstances precluding wrongfulness and
responsibility

• These are the correct articles in the Draft
  Articles on State Responsibility
• Consent Art.20
• Force majeur Art.23
• Distress Art.24
• Necessity Art. 25
• Self-defense Art.21
• Countermeasures Art. 22
• Reprisals

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RAINBOW WARRIOR CASEPublic International
Arbitration

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

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RAINBOW WARRIOR CASE

• Issues
• A. Did the action taken by France with regard to
  the French agents constitute a breach of the 1986
  Agreement that warranted satifaction and
  cessation of the denounced behavior (specific
  performance) returning the agents to Hao?
• B. May distress in a case of extreme urgency
  involving elementary humanitarian considerations
  exclude wrongfulness in the case of breach of a
  treaty obligation?
• C. Is compensation an appropriate remedy for
  non-material damage?

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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.