Week 2 - Jurisdiction & Admissibility Flashcards
How has ‘investment’ been defined under ICSID for the purposes of ICSID jurisdiction? (3)
1) “investment” not defined in ICSID Conv
2) defined in some BITs
3) Overall it has been given broad interpretation:
i) substantial commitment on part of foreign investor
ii) for certain duration
iii) presence of economic risk for investor
iv) relevant for economic development of Host State
Burkina Faso/Niger (2013) (2 things held)
Court: ICJ
Facts: in dispute over land delimitation BURK asked ICJ to indicate in its judgment certain parts of boundary which the parties had settled by agreement to ensure res judicata status
Issue: could the ICJ include this in its judgment despite it not being in dispute between the parties?
Held:
1) No, the ICJ could not include this
2) it was a moot point since there was no longer dispute between the parties over the boundary
South West Africa Case (3 things held)
Court: ICJ
Facts: S.AFR was breaching its LoN mandate over NAM by imposing apartheid. ETH and LIB (as only AFR LoN members) bring claim.
Issue: did ETH and LIB have sufficient standing to bring the claim?
Held:
1) at preliminary objections stage found admissible, but then inadmissible at merits stage (4 years later; change of bench)
2) ETH and LIB’s interest was not sufficiently legal but was more general –> no standing
3) more generally also no public interest claims under IL
Barcelona Traction (3 things held)
Court: ICJ
Facts: BEL had shareholding in CAN company which suffered injury
Issue: did BEL’s shareholding in the company permit it to bring a claim for its injury?
Held:
1) No BEL’s shareholding did not give it standing
2) the injury did not affect the legal rights of shareholders but only the legal rights of the company itself
3) erga omnes obligations exist regarding slavery, genocide and racial discrimination
Monetary Gold (3 things held)
Court: ICJ
Facts: Some gold had been taken from ALB by ITA, then moved to GER, and eventually to the Allies in WWII. ITA and UK claimed the gold was theirs since ALB owed them reparations for wrongs committed in the past.
Issue: could the ownership of the gold be determined w/out ALB’s participation in the case?
Held:
1) NO, ALB was a necessary third party to the case
2) ALB’s rights and obligations formed the very subject-matter of the decision and thus the claim was inadmissible
3) would have been insufficient that a third party’s interests are merely affected by the decision
Certain Phosphate Lands (2 things held + dissent)
Court: ICJ
Facts: AUSTRL, UK and NZ were Administering Authority of NAU. NAU bring claim only against AUSTRL (who was undertaking actual administration).
Issue: Does Monetary Gold apply?
Held:
1) Monetary Gold did not apply
2) the decision of the ICJ would only have legal implications for UK and NZ but their interests would not be the very subject-matter of the judgment
Dissent: 4 judges argued to assess AUSTRL responsibility required quantifying NZ and UK responsibility
East Timor (2 things held)
Court: ICJ
Facts: INDO occupy E.TIM and make agreement with AUSTRL as to continental shelves. PORT bring claim against AUSTRL for infringing E.TIM SDet
Issue: did Monetary Gold apply?
Held:
1) Monetary Gold applied
2) to determine legality of AUSTRL’s acts would require assessment of legality of INDO occupation
Marshall Islands v UK
(5 things held)
Court: ICJ
Facts: MI historically used for nuclear tests. MI bring claim against UK for breach of disarmament obligations under NPT.
Issue: was there a dispute between the parties?
Held:
1) No dispute existed as the UK was not made aware prior to filing of the case
2) Statements made by MI were hortatory and did not allege a breach of IL, and were made at a conference at which UK was not present
3) The relevant date for determining the existence of a dispute is the date of application to ICJ
4) Voting patterns on UNGA cannot form basis of legal dispute due to diverse reasons underlying a vote
5) existence of dispute is a question of jurisdiction (scope rather than existence) (but cf. moot point under admissibility)
What are the criteria for a dispute to exist before the ICJ? (4)
1) Art 38 ICJ Statute: ‘dispute’
2) Disagreement on a point of law or fact (South West Africa)
3) The dispute must pre-exist the application for jurisdiction to the ICJ (Marshall Islands)
4) requires evidence that the respondent ‘was aware or could not have beenunaware that its views were positively opposed’ (Marshall Islands)
Chagos Marine Protected Area (Facts and issues)
Court: Annex VII UNCLOS
Facts: MAU became independent 1968 but CHA had been detached 1965 to be used for defence purposes. 2010 UK establish Marine Protected Area around CHA. MAU bring claim claiming infringement of rights under UNCLOS. The Tribunal treated UK’s jurisdiction objections alongside the merits
Issues:
1) Did the tribunal have jurisdiction over MAU’s claims?
2) Did UK breach UNCLOS?
Chagos Marine Protected Area (MAU’s first argument) (2)
1) MAU: argument that UK is not a coastal state for CHA is a question of interpretation of “coastal state” within UNCLOS falling withing Art 293 UNCLOS
2) Tribunal:
i) jurisdiction over this claim depends on whether primarily a matter of interpretation/application of “coastal state” or primarily concerning question of sovereignty?
ii) no jurisdiction over claims whose core is primarily outside UNCLOS
iii) this is primarily a dispute over sovereignty with “coastal state’ simply being a manifestation
iv) no categorical exclusion of disputes where sovereignty is merely an ancillary aspect
Chagos Marine Protected Area (MAU’s Fourth Argument) (5)
Tribunal found:
1) The MPA was not solely related to fisheries as it had been justified as environmental protection and thus it fell within tribunal’s jurisdiction under Art 297(1)(c) UNCLOS
2) UK’s right as coastal state was subject to MAUs rights both generally and under UNCLOS (Art 2) and UK had to take them into account (Art 56)
3) in establishing the MPA the UK had failed to take account of MAU’s right under the Lancaster House Undertaking to have CHA returned as well as MAUs right to oil and fish around CHA
4) the MPA would affect these^ rights since it would at least limit MAU’s political choices upon return of CHA
5) MAUs other arguments all dealt with fisheries or EEX which are excluded from jurisdiction by Art 297(3)(a)
–> tribunal had jurisdiction over this claim
