Lecture 7 Flashcards
International courts
Article 33 of the UN charter
o Provides a list of possible methods for pacific settlement of disputes, only a few of which involve judicial or quasi-judicial proceedings;
Negotiation, enquiry, mediation, conciliation, arbitration, judicial settlement, resort to regional agencies or arrangements or other peaceful means of their own choice.
Introductory remarks
- We tend to think of courts when we think of the law, but important to remember is that much of legal activity happens outside of courts.
- This is especially true in context of IL, litigation is still relatively unusual.
- Instead, much legal practice happens as part of daily diplomacy and within foreign ministries etc.
General info permanent court of arbitration
- Based in the Hague, same building as ICJ but is a very different body. It isn’t necessarily a court.
- Created by Hague convention of 1899 and in existence ever since.
- Despite its name, it is not a court and the tribunals it enables aren’t permanent.
- Instead, it is an organization designed to facilitate arbitrations by providing a permanent administrative structure within which parties can organize arbitral tribunals (a registry).
What is the difference between arbitration and judicial settlements through courts?
o Similarities are that both are meant to be binding, both apply to IL and both leave the determination of outcome to independent decision-makers.
o Differences are that in arbitration consent is given on a case to case basis, parties have great flexibility choosing arbitrators, arbitral tribunals are almost always ad hoc and there tends to be greater procedural and legal flexibility (including secrecy), tribunal decisions can be kept secret.
How does the PCA work?
o Organization: each contracting state nominates up to four persons able to serve as arbitrator, whose names go on a list.
o If a dispute arises and both parties agree to arbitrate, either under an existing treaty or not, they choose one or more arbitrators from the list.
o A tribunal under the PCA is then set up, hears the case , makes a decision and is dissolved (ad hoc basis).
o The decision is binding on parties and there is no appeal.
Examples of PCA jurisdiction
o Law of the Sea: under UN convention on law of the sea (UNCLOS), states can choose from one of four methods of peaceful dispute settlement, including PCA, which is also the default option if none is selected.
o Investor-state dispute settlement: numerous free trade agreements provide for disputes between foreign investors and states to be heard by an arbitral tribunal under PCA.
Law under PCA
o The law applied is IL, but parties can agree to accept certain specific principles beyond that into account when hearing the case.
o But once the arbitration is begun, the tribunal has the power to decide the exact extent of its jurisdiction.
o Judgements are final, but can be nullified on a very few grounds like if the arbitrator was bribed or possibly when it has manifestly exceeded its power.
General info ICJ
- By far the most famous and important international court, sometimes referred to as world court by laymen.
- Created in 1920 as part of the LoN as permanent court of international justice (PCIJ), given its current name after the creation of the UN, but it’s essentially the same court.
- Unlike the PCA, the ICJ only deals with states and the UN as parties though the specific suit may have arisen as a result of something done to an individual.
ICJ organization
o It’s based in the Hague in the same building as the PCA.
o Unlike the PCA, the ICJ is part of the UN, one of its six principal organs.
o A permanent court, with public proceedings.
Personnel ICJ
- Personnel: comprised of 15 permanent judges, each country can only have one judge of their nationality.
o Elected to nine-year terms by both UNGA and UNSC from lists of candidates nominated by national groups within PCA.
o Candidates need an absolute majority in both to be elected, in practice there is coordination between UNGA and UNSC when it comes to voting.
Expectations ICJ
o Judges are expected to rule independently of their country of origin, but in practice elections are a mix of political and legal considerations.
o Judges have to represent the main forms of civilization and the principal legal systems of the world, in practice, there are informal geographical quota’s.
Interesting ad hoc judge feature ICJ
o Article 31 provides that if a party in a case has no judge of its nationality, it can appoint an ad hoc judge for that case only, who can be of any nationality.
o Most ad hoc judges vote in favour of the country which appointed them, but not always.
o The procedure reflects a compromise between politics and the ideal of entirely objective adjudication, meant to encourage more countries to accept ICJ jurisdiction in their cases.
ICJ jurisdiction
Contentious issues
Incidental jurisdiction and advisory opinions
Contentious issues ICJ
- Between states seeking to settle disputes according to law.
- States must consent or have consented to ICJ jurisdiction.
- Decisions are final and binding.
- Judges generally sit as full bench (all 15 or 16 or 17) but in recent years have also formed chambers (comprised of a subset of judges).
Advisory opinions ICJ
- UNGA, UNSC and UN specialized bodies can request advisory opinions on questions of law.
- The ICJ opinion isn’t binding in law, but in practice are viewed as authoritative.
- Some are critical of the advisory jurisdiction because it can be used as a backdoor to bring disputes to the ICJ in the absence of state consent.
