Section 4 - The creation, application and incorporation of international law Flashcards
What role does the UN play in creating law?
GA → declarations, not legally binding
there is a legal committee + intl law commission. they help states come together to work on treaty drafts
they try to
filling the gaps, regulating the areas which are not yet. this is most likely done by states who have gains by regulating an issue in particular. They try to come up with common ground types of regulations.
At the end of the day, it is states who turn that work into treaties by ratifying them.
The GA don’t actually create laws, that is only sovereign states when they ratify or not
What is the role of the Security Council in law making?
SC does not work with states, it is interested in matters to intl security. BUT the resolutions they pass are legally binding and thus, are sources of intl law by creating legally binding obligations.
They’re usually very specific, and most often they create the obligation of 1 state to stop doing smt
What is the role of the ICJ in IL making?
it creates legal rights and obligations in continental cases,
applies strictly to case at hand and the actors involved, dont travel directly above this.
due to wanting to maintain interpretive consistency, they will have effect on rights and obligations in context with a different case,
What does it mean to solve a dispute by judicial means?
reaching dec solely based on interpretation of law and text
what is arbitration?
turning to ad hoc judicial authority for a one time use, specifically for that. experts, jurists → see rainbow warrier case. result is called award (aka decision)
What is the connection in terms of adhering to the UN and adhering to the ICJ?
if you ratify the UN Charter, youre automatically ratifying the state of the court. its an integral part of it. that means, all members of UN are also member of ICJ statute.
its important be part of statue in order to have access to it in the first place. non-members of UN can still ratify the statute of the ICJ.
what are 3 mechanisms of jursidiction given to the ICJ through its statute?
1 - Article 36, optional clause. states grant compulsory jurisdiction over future disputes which may arise.
2 - Consent based on a case by case basis
3 - Compromissary clause. a clause in a treaty where were a dispute to arise between members of the treaty, they’re committed to take it to the ICJ to solve it.
Ultimately, it is the ICJ which decides whether it has consent or not.
Please describe a political aspect of the ICJ
The court needs to be viewed as a trustworthy institution to make dec based on law and not politics. this means it would be less used and evt died, so court needs to protect reputation to protect itself.
it is problematic if the ICJ rules for/against an action taken by the SC.
What were Portugal’s main claims in the East Timor case against Australia?
Portugal claimed that Australia violated its obligations by engaging in activities with Indonesia concerning East Timor’s resources, infringing on East Timor’s right to self-determination and Portugal’s status as the administering power
Why did the ICJ decline jurisdiction in the East Timor case?
The ICJ found it could not exercise jurisdiction without Indonesia’s consent, as deciding on Australia’s conduct would require ruling on Indonesia’s rights and obligations, which parallels the Monetary Gold principle
What is the “Monetary Gold principle,” and how was it applied in the case of East Timor?
The Monetary Gold principle restricts the ICJ from ruling on cases that directly affect a non-consenting third party’s rights. Here, it prevented a ruling without Indonesia’s involvemen
What were Serbia and Montenegro’s main arguments against Canada in the Legality of Use of Force case?
Serbia and Montenegro argued that Canada violated international obligations by using force, violating sovereignty, and harming civilian rights during NATO’s intervention
On what grounds did Canada challenge the ICJ’s jurisdiction in S,M V Canada? + Court ruling?
Canada argued that the court lacked jurisdiction, as Serbia had not met the conditions under Article IX of the Genocide Convention and lacked standing as a UN member at the time.
The ICJ dismissed the case due to jurisdictional limitations, finding Serbia lacked standing as it was not a UN member or a party to the Genocide Convention at the time of the NATO intervention
What was Georgia’s primary accusation against Russia under CERD?
Georgia accused Russia of racial discrimination against ethnic Georgians in South Ossetia and Abkhazia, invoking Article 22 of CERD for ICJ jurisdiction
How did Russia object to the ICJ’s jurisdiction in the Georgia v. Russia case? + court ruling?
Russia argued that Georgia had not fulfilled the procedural requirements under Article 22 of CERD, such as engaging in negotiations prior to filing the case
he ICJ ruled it lacked jurisdiction as Georgia failed to satisfy the negotiation requirement stipulated in Article 22 of CERD
