1. At National level
(1) (other than court) go to consular in receiving state /
(2) go to municipal court
1) jurisdiction : ATS against individual + sovereign(FSIA, amerada, p232) / TVPA
2) applicable rule : E.con.H.R. – municipal court in Europe apply the ECHR
3) subsidiarity
2. At regional level
(1) IACrtHR, ECrtHR, African
(2) Am : IACHR à IACrtHR – contentious and advisory
(3) Eu : ECHR, admissibility / on the merit / right, interference, prescribed by law, legitimate aim, necessary in dem society / esp. in necessity, margin of appreciation, consensus inquiry, flexible approach to precedent
(4) African
3. At international level
(1) (against state, against individual)
(2) whether the act of state is unlawful ? (on the merits)
1) sources of law, (north sea shelf case, p162), (i) treaty (VCLT) (ii) custom (existing, emerging) (iii) general principle (iv) subsidiary means
(3) obligation to resort to peaceful means first,
1) if the state at issue is UN member state, or assuming UN member state,
2) art 1.1 (maintain int’l peace and security) / art. 2.3 (obligation of UN member state to settle dispute by peaceful means +Art.33) / art.2.2 (fulfill the obligation in good faith)
3) à should try peaceful means first such as non-adjudicatory approach and judicial one
(4) By state, (not thru institution) :
1) Consultation, negotiation, good offices, mediation, conciliation (art.33) (p263)
2) Creating committee, diplomatic note (Barcelona ,p350 )
3) Arbitration
(5) Under the authority of UN Charter
1) Human Rights Council
2) Economic and social council (ECOSOC)
3) O HC HR
4) UN G.A. : condemn,
5) UN S.C. (p592)
a. condemn
b. art.41 – refer the situation to ICC / set up ad hoc tribunal
c. art.42
6) ICJ
a. Contentious or advisory(p311)
b. Provisional measure (p599)
c. Admissibility – jurisdiction
d. Sources of law
e. On the merits : treaty, derogation, custom, jus cogens
f. Enforcement
(6) By treaty bodies
a. Human Rights Committee under ICCPR p444
a) (periodic) report / emergency report / general comment / state complaint / individual complaint
** Purpose and Principle under UN charter (in exam, invoke it !! e.g. S.C. resolution in accordance with principle or purpose of UN cahrter)
Art.1 purpose
1. To maintain int’l peace and security
2. Friendly relationship among nations, self-determination of people,
3. Int’l cooperation in promoting respect for human rights
4. _
Art. 2. Principle
1. Sovereign equality
2. Fulfill the obligation in good faith
3. Resolve dispute in peaceful means (art.33)
4. Refrain from use of force against territorial integrity or political independence
5. Give UN every assistance
6. Though not member states
7. Non intervening in essentially domestic matters except Ch.7
Three ways to come before ICJ
1. ICJ 36(1) : special agreement = compromis, “parties refer to it”
2. ICJ 36(1) : Iran hostage case, “treaty and convention” = compromisory clause, optional clause
3. ICJ 36(2) : optional clause , before, ex ante,
- P311, typical three reservation to optional clause ICJ 38(2),
- US pull out of the optional clause
ICJ 36.3. optional clause, reservation based on reciprocity
this paragraph does not relate to reciprocity.it simply authorize states to accept compulsory jurisdiction ... and to make their liability to jurisdiction conditional on compulsory jurisdiction having been also accepted by a particular number of other states or by particular named states ... such a condition ... is not really "a condition of reciprocity" but rather a condition that the declaration is not to be in force unless and until a certain number of states or certain named states have accepted compulsory jurisdiction under the optional clause
defendant can invoke the reservation made by Plaintiff upon ICJ 36(2,3)
Types of Jurisdiction
Purpose of analysis of jurisdictional claims is to determine the extent to which a state may exercise power (through its municipal institutions) to prescribe and enforce legal rules, and to adjudicate disputes, involving transnational actors
Types of jurisdiction are:
1. Jurisdiction to Prescribe: Bases
(1) Territoriality
(2) Nationality
(3) Passive : “The passive personality principle asserts that a state may apply law--particularly criminal law--to an act committed outside its territory by non-national where the victim of the act was its national.
(4) Protective : in Netherland, non US citizen counterfeit dollar , Espionage / smuggling / counterfeiting / falsification of documents / perjury before consuls / conspiracy to violate immigration law
(5) Universal : piracy
2. Jurisdiction to Adjudicate :
1) ATS(alien tort statute) serve as providing jurisdiction to adjudicate alien with US Court
2) The only statute whereby a state (sovereignty) can be defendant in US court is FSIA
3) Act of state doctrine?
3. Jurisdiction to Enforce :
1) who may be sanctions to fail to live up to the orders
2) US FBI arrest the counterfeiter in Netherland
3) in Sosa case, DEA agents arrested Dr. Alvarez within Mexico territory, maybe without having jurisdiction to enforce
4) following judgment against sovereignty (state), enforce it e.g. on property of the state
US Constitution
Art.1, Section 8 - Powers of Congress
Art.2.s.2, president make treaty
Art.6.Cl.2, supremacy clause
Regional grouping, why? Distribute the seat evenly, equitable geographic distribution, in terms of UN politics, get along with all over the world, not by population,
the Western European and Others Group (WEOG), with 27 member states;
the Eastern European Group, with 23 member states;
the Latin American and Caribbean Group (GRULAC), with 33 member states;
the Asian Group, with 53 member states;
the African Group, with 53 member states
Non-adjudicatory approach (Un charter art.33)
- Consultation
- Negotiation : initiate negotiation process between the foreign ministers/representatives and try to come to understandings or agreements..
- Good offices – third party bring disputing parties together and make it feasible for parties to negotiate (third party give coffee and table)
- Mediation – the third party acts as a go-between when disputing parties. Go back and forth with the two parties. The mediator may propose resolutions.
- Conciliation – where the mediator suggests resolutions and lets parties response and test the resolutions and adjust them.
- Fact-finding – mediator may also just do plain ol’ fact-finding. The mediator may be involve in such pure fact-finding which may be the main/sole basis for mediation
