Public International Law Week 6

Question 1

Peaceful means of settlement UN Charter

Answer 1

Art 33 UN Charter: members have free choice to use whatever means of settlement they like

Question 2

Arbitration as a legal mean of settlement

Answer 2

A kind of judicial settlement in which the parties to the dispute determine various elements of the legal process and conclusion.
The parties determine what the dispute is before it goes to the tribunal, determine the applicable law, can also determine the procedure, what the award is, etc.

Question 3

Judicial settlement

Answer 3

Permanent international courts or tribunals: judges are elected to a standing court or tribunal for a certain amount of time, and they make blinding decisions. E.g., ICJ, ITLOS, ICTY, ICTR, etc.

Question 4

Contentious jurisdiction of the ICJ

Answer 4

Settlement of disputes between states in a legally binding manner.

Question 5

Advisory jurisdiction of the ICJ

Answer 5

Legal advice to the UNGA and UNSC, and to other organs of the UN and specialized agencies when authorized by the UNGA

Question 6

Which parties have access to the ICJ?

Answer 6

Art 34 ICJ: only states may be parties before the ICJ.
Art 35(2) ICJ: other states may have access to the court if under certain conditions laid down by security council, subject to special provisions contained in treaties in force. E.g., As Palestine is not recognized as a state (thus not party to the statute), it must invoke Art 35(2) to bring a case to the ICJ - as it is a party to UNESCO, and Art 35(2) allows states parties to specialized agencies to invoke the treaty, it can bring a case to the ICJ under Art 35(2).

Question 7

Jurisdiction of the ICJ based on consent

Answer 7

Art 36 ICJ Statute: Two states agree that a certain dispute ought to be settled by the ICJ

Question 8

Compromissory clause (jurisdictional clause) in treaty

Answer 8

Art 36(1) ICJ: “matters specifically provided in treaties and conventions in force”

Question 9

Declarations optional clause

Answer 9

Art 36(2) ICJ: “The states parties to the present Statute may at any time declare that they recognize as compulsory ipso facto and without special agreement, in relation to any other state accepting the same obligation, the jurisdiction of the Court in all legal disputes […]” Parties can thus make a declaration and start a case immediately. However, other parties can include reservations saying you can only start the case one-year after stated declaration against me.

Question 10

Forum prorogatum

Answer 10

Considered present when the respondent state shows up before the court and by its conduct accepts the jurisdiction of the court (usually by not objecting to it)
E.g., Albania showed up and didn’t object to jurisdiction of the court until a very late stage, and then court rejected that shit. If you come to court and don’t reject jurisdiction, then we will take that as you accept it.

Question 11

Articles that provide for advisory jurisdiction to the ICJ

Answer 11

UNGA: Art 96(1) UN Charter
UNSC: Art 96(1) UN Charter
Other UN organs or specialized agencies authorized by the UNGA: Art 96(2) UN Charter

Question 12

Criteria for which non-states can bring case to the ICJ for advisory jurisdiction

Answer 12

Art 96(2) UN Charter: Other organs of the United Nations and specialized agencies, which may at any time be so authorized by the General Assembly, may also request advisory opinions of the Court on legal questions arising within the scope of their activities.”
- Must be authorized by UNGA
- Must be a legal question
- Must be arising within scope of their activities

Question 13

Non-binding nature of advisory jurisdiction of ICJ

Answer 13

No obligation to comply or follow advisory opinion in this regard.

Question 14

Prohibition on the use of armed force

Answer 14

Art 2(4) UN Charter: prohibits use of military or armed force only. Also prohibits from the threat of the use of force (however, allowed to threat use of force as form of self-defence).
Prohibition on threat and use of force is in both treaty and CIL (Nicaragua case).

Question 15

Right to self-defence

Answer 15

Art 51 UN Charter, Nicaragua case also refers inherent right to self-defence as embodied in CIL.

Question 16

Requirements when using right to self-defence

Answer 16

Must fulfill necessity and proportionality. Must be in self-defence against an unlawful use of force (cannot use self-defence against lawful use of force.)

Question 17

Conditions when using self-defence

Answer 17

Can only invoke self-defence against an unlawful armed attack as defined under Art 51 UN Charter (so not the use of force adopted by UNSC). Must be against a member state. Must report to the UNSC why you have invoked self-defence. Must also declare you have been a victim of an attack.

Question 18

Necessity as a requirement of self-defence

Answer 18

Provide that there was no other means to defend yourself, and that the attack was immediate

Question 19

Proportionality as self-defence.

Answer 19

The self-defence measure must be compared to the ongoing attack and cannot use an extreme amount of force. E.g., cannot invade a country if there is an isolated attack. As long as an attack is going, however, you can invoke self-defence.

Question 20

Attacks by non-state actors

Answer 20

No mention in Art 51 Charter, however, can be invoked against state that sends armed actors or involved in sending armed actors (again, must see if they had effective control over these actors first).

Question 21

Standard for invoking self-defence against state using non-state actors

Answer 21

Must show that state had effective control over the non-state actors (Nicaragua case, genocide case). Such as weapons, training, intelligence, etc.

Question 22

Anticipatory self-defence

Answer 22

Art 51 UN Charter does not allow you to attack first when you think an imminent attack is coming. However, can only use anticipatory self-defence if can prove that attack is very close in time.

Question 23

Three components of collective security

Answer 23

Chapter VII UN Charter:
1. Peaceful settlement of disputes (Art 2(3) Charter)
2. Prohibition of force, except in self-defence (Art 2(4) Charter; Art 51 Charter).
3. Collective enforcement (Art 39 Charter - UNSC determines existence of threat to the peace, breach of the peace, or act of aggression, then makes recommendations, and/or SC decides on measures pursuant to Articles 41-42 Charter)

Question 24

UNSC non-military measures

Answer 24

Art 41 UN Charter

Question 25

UNSC military measures

Answer 25

Art 42 Charter: authorization to use force as allowed by Resolution 678 that allows all necessary means for use of armed force. E.g., Res 1973 (2011) “4. Authorizes Member States that have notified the Secretary-General, acting nationally or through regional organizations or arrangements, and acting in cooperation with the Secretary-General, to take all necessary measures, notwithstanding paragraph 9 of resolution 1970 (2011), to protect civilians and civilian populated areas under threat of attack in the Libyan Arab Jamahiriya, including Benghazi […]”

Question 26

Nicaragua case

Answer 26

Discussed criteria for scale and effect of armed actions. If something is just a frontier incident, then it is not an armed attack. Also, armed attack is not the same as use of force, as there must be a grave form to the armed attack in order to invoke self-defence.
Also discussed that the right to self-defence is embodied in CIL. (paras 196, 196-200) Furthermore, discussed the requirements of necessity and proportionality when invoking self-defence (para 176).
Also, discussed that if a state wants to invoke self-defence, one of the requirements is that it declares that it has been a victim of an unlawful attack.

Question 27

Nuclear disarmament case

Answer 27

You cannot have a dispute between two parties if one of the parties is unaware that the dispute exists (UK did not know that Marshall Islands had an issue with its nuclear weapons).

Question 28

Island of Palmas

Answer 28

An example of arbitration via the PCA - Netherlands and USA determine what the dispute is, what is the applicable law, what is the procedure, and then the PCA determines the legal outcome in the form of an ‘award’

Question 29

Palestine v USA

Answer 29

Art 35(2) ICJ Statute allows for other states to bring cases before the ICJ if they fulfill certain conditions laid down by UNSC or are subject to special provisions contained in treaties. For treaties, it allows members of specialized agencies (i.e., Palestine is part of UNESCO) to bring cases to the ICJ
Palestine part of VCDR + optional protocol for ICJ jurisdiction, thus as part of this treaty + specialized agency can bring case to the ICJ under Art 35(2) ICJ Statute.

Question 30

North Sea Continental Shelf/Gabcikovo-Nagymaros

Answer 30

Related to Art 36 ICJ Statute: ICJ has jurisdiction over cases which parties refer to it as done in these two cases

Question 31

Corfu Channel case

Answer 31

Forum prorogatum: a party is considered present to the case and accepts Court jurisdiction by their conduct (i.e., shows up to court, goes through the whole process, etc.) and then later on cannot say we don’t accept court jurisdiction

Question 32

Congo v Uganda

Answer 32

Cannot attack another country if armed bands have attacked you. This is not self-defense against the country.
Also, cannot invoke against an isolated attack.
In this case, Uganda was attacked and wanted to use self-defense against Congo, but Court found: no sending by or on behalf of Congo of the armed bands, no involvement Congo, and no need to determine the question of self-defence against large-scale attacks, and these were done by irregular forces (para. 147)

Question 33

Oil platforms

Answer 33

Para 57 burden of proof is on the USA to show that it was the victim of an armed attack by Iran and has to justify it using armed force in self-defense