PIL Week 2

Question 1

ICJ Case Concerning the Gabcikovo-Nagymaros Project (Hungary/Slovakia)

PRESCRIBED

Answer 1

Case: Hungary and Czechoslovakia concluded a treaty on the usage of the river Danube. The states would build dams to provide electricity and more effective shipping route. A few years later Hungary refused to perform its obligations and stated that it was justified to terminate, because there would be circumstances which would allow Hungary to stop its performance.

The ICJ explains the SCOPE of the grounds under which states are allowed to TERMINATE their obligations.
(par. 99 and further)

Vienna Convention was NOT applicable, but in that case the substance of the Vienna Convention reflects CUSTOM and especially articles 60-62 of the Vienna Convention (par. 46 and 99).

Question 2

Consenting to arbitration or adjudication

Answer 2

Applicable on all arbitration or adjudication:

1: Special agreement or treaty
2: Compromissory clause (consented in advance)

ONLY applicable for the ICJ:

3: Optional clause (art. 36 par. 2 ICJ) BUT a dispute can only be settled if all parties in the dispute have signed such a declaration!
4: Forum prorogatum = accepting an invitation by a state party

Question 3

ICJ Obligations concerning Negotiations relating to Cessation of the Nuclear Arms Race and to Nuclear Disarmament (Marshall Islands v. India)

NOT IN READER!

Answer 3

THERE MUST BE A DISPUTE BETWEEN TWO STATES FOR DISPUTE SETTLEMENT AT THE ICJ

Case: A dispute between the Marshall islands and multiple nuclear states in relation to the obligation of the nuclear states to carry out negotiations in good faith, which would lead to nuclear disarmament. Multiple states including the UK had failed to negotiate in good faith. Ultimately the ICJ ruled that it did not have jurisdiction, because it was impossible to establish that a dispute existed.

The ICJ ruled that a DISPUTE exists when it is clear that there is a DIFFERENCE OF OPINION between TWO STATES states on:

• a matter of law,
• the interpretation of a rule of law
• facts

It must be clear that there are MUTUALLY INCOMPATIBLE DIFFERENCES of opinion or interest. There must be a difference of opinion about the performance of OBLIGATIONS UNDER PUBLIC INTERNATIONAL LAW.

In order to establish such a difference of opinion, a number of FACTORS play a role, for example the defendant state must be aware that such difference of opinion exists.
(The UK could not have been aware that it had a dispute with the Marshall Islands. This lead to lack of jurisdiction.)