Incidental and Post-Adjudicatory Proceedings Flashcards
What did Russia argue in Arctic Sunrise (ITLOS)?
Art 298(1) of UNCLOS says when signing convention, may declare in writing that it doesn’t accept any one or more of procedures provided for in section 2 with regard to following categories of disputes:
Military activities, and disputes concerning law enforcement activities in regard to exercise of sovereign rights or jurisdiction.
What did Netherlands argue in Arctic Sunrise (ITLOS)?
Under Art 298(1)(b) of convention, the exception to disputes regarding sovereign rights applies only to those disputes excluded from jurisdiction of court or tribunal.
These are disputes concerning marine scientific research and fisheries - not applicable here.
What are the two main questions Court had to answer in arctic sunrise?
1) Did the Annex VII tribunal have prima facie jurisdiction?
2) Is case urgent?
How did court determine if it had prima facie jurisdiction in Arctic Sunrise?
1) Existence of a dispute (Art 288(1))
- N argued breach of obligations of right to protect vessel flying flag.
- R’s Note Verbale saying it acted in accordance with UNCLOS.
- Dispute regarding interpretation or application of convention.
2) When dispute arises, did parties proceed to exchange views? (art 283(1))
- Yes
Was case urgent? (Arctic Sunrise) (290(5))
- Condition of boat deteriorating ‘ageing icebreaker’
- Risk for environment, bunker oil.
- Crew’s right to liberty and security
All have irreversible consequences. Urgency requires PMs.
What were the facts behind Application of Genocide Convention (Gambia v Myanmar)?
- Gambia claimed Myanmar were engaging in Genocide acts;
- These included clearance operations, sexual violations, mass murder and systematic destruction of villages.
- Rohingya group self-identifies as a distinct ethnic group with its own language, culture and claim to Rakhine State which forms part of union of Myanmar.
- Successive governments of Myanmar rejected Rohingya claims and don’t recognise as ethnic group.
What questions did court ask in determining criteria for provisional measures? (Gambia v Myanmar)
1) Whether the rights were plausible (Qatar v UAE)
2) Whether there was a sufficient link between rights and measures sought? (Q v UAE)
3) Was there irreparable prejudice?
How did court answer questions on provisional measures? (G v M)
1) Plausible - Rohingya protected group. Exceptional gravity of allegations doesn’t mean bound to ensure genocidal intent. But fact finding mission - reasonable groups genocidal acts has been committed by M.
2) Whether there was a sufficient link between rights and measures sought? (Q v UAE)
- First three provisional measures aim to preserve rights asserted on basis of GC.
3) Was there irreparable prejudice?
- Fundamental values under GC - prejudice is capable of causing irreparable harm. Risk is real and imminent.
- Irreparable prejudice to rights of R.
What happened in Qatar v UAE?
Facts: UAE issued order expelling all Qataris from their territory.
Issue: violations on convention on racial discrimination..
Held: Order UAE to reunite families, allow students to return or gain access to transcripts, and Qataris access to courts in UAE.
What happened in Iran v US?
Facts; Iran and US entered into bilateral treaty, Treaty of Amity 1995, involving nuclear weapons. Then US imposed sanctions.
Issue: Violation of 1995 treaty.
Held: Ordered US to remove impediments to exportation to Iran of products not related to nuclear programme. (food, medicine etc)
What happened in Ukraine v Russia?
Facts: Two issues under two distinct treaties.
- Russian support for Ukraine rebel operating in Eastern Ukraine including rebels involved in the downing of a certain flight. (Violation of treaty on terrorism financing)
- Russian occupation of Crimea (violation on convention on Racial Discrimination).
Held: Applied to racial discrimination: refrain from interfering with representative institution in Crimea and restricting language education.
Can a third party intervene with ICJ?
Rare.
- Art 62 of ICJ Statute: Discretion of court - relates to legal interest.
- Art 63: Intervention by right - if it is a party to treaty in question. However, binding.
Two examples of third party intervention at ICJ.
Art 62: Jurisdictional Immunities
Art 63: Whaling in the Antarctic
Can third party intervene at WTO?
Art 10(2); Yes, when have substantial interest in matter.
Case: US Shrimp
What are the criteria for counter claims?
1) CC has to fall within the jurisdiction of court/ tribunal.
2) Has to be within the scope of the subject matter jurisdiction of the claim that was brought by applicant.
What can party do if it needs clearer understanding of a judgment? (Interpretation)
In event of dispute as to meaning or scope of judgment, court shall construe upon request of any party (Art 60 of ICJ Statute).
No time timit.
Case: temple of Preah Vihear (Cambodia v Thailand)
Can Court or Tribunal revise judgment?
Art 61 ICJ and Art 127 ITLOS:
- Requires discovery of a new fact that is a decisive factor.
- Fact must have existed at time of judgment.
- Both court and party did not know about it at time.
