CH 5 international court and tribunals (p263)
Non-Adjudicatory Approaches
- Traditional procedures for dispute resolution (required by diplomats): (art.33 of UN Charter)
o Consultation
o Negotiations – every time there is a dispute btw states, the initial effort would be to initiate some negotiation process between the foreign ministers/representatives and try to come to understandings or agreements. One of the main works of a diplomat is conduct negotiations for govts in respective states.
o Good offices – the 3P that provides such offices for the negotiations between disputing states. Such offices bring people together and make it feasible for parties to negotiate
o Mediation – the 3P acts as a go-between when disputing parties have trouble coming together to negotiate. The basic thing a mediator will do is to go back and forth with the two communicating with the parties what each other says. The mediator may propose resolutions or draft agreements or may impose “polite” caution (or sometimes less polite).
o Conciliation – where the mediator suggests resolutions and lets parties response and test the resolutions and adjust them
o Fact-finding – mediator may also just do plain fact-finding. The mediator may be involve in such pure fact-finding which may be the main/sole basis for mediation
Characteristics of arbitration:
Prior agreement of parties to arbitrate is essential ; (i) Obligation may arise through pre-existing treaty., (ii) Parties may agree ad hoc to arbitrate a specific dispute.
The agreement to arbitrate called a “compromis” which must include: (i) The explicit undertaking to arbitrate, (ii) The subject-matter of the dispute
Commercial arbitration (defining characteristics):
(i), Consensual mechanism, (ii), Non-governmental decision makers, (iii), Binding or non-binding awards by agreement, (iv) Flexibility of procedures and substantive rules in a commercial situation.
Separate compromis to arbitrate / Compromissory clause in treaty
Alabama arbitration, 1872, (p264)
Issue
- Whether Britain had violated international law when it permitted British companies to build warships for the Confederacy during the American Civil war
Holding
- The Alabama tribunal ruled that Britain had owed the US a duty of active due diligence to prevent private parties from supplying the southern rebels but failed to observe her int’l obligation as a neutral state
Significance:
- most important popular demonstration of the period that it was possible for powerful states to arbitrate important disputes and thereby avoid war.
Rainbow Warrior, (New Zealand v. France), France-New Zealand Arbitration Tribunal. (1990), p274
Summary:
- In 1985 two French agents sank the Rainbow Warrior, a vessel belonging to Greenpeace International (not flying new Zealand flag) while it lay in harbor in New Zealand. One member of the crew (Holland) was killed. Two of the agents, Major Mafart and Captain Prieur, were subsequently arrested in New Zealand and, having pleaded guilty to charges of manslaughter, were sentenced and served in New Zealand.
- A dispute arose between France, which demanded the release of the two agents, and New Zealand, which claimed compensation for the incident. New Zealand also complained that France was threatening to disrupt New Zealand trade with the European Communities unless the two agents were released.
- The two countries requested the Secretary-General of the United Nations to mediate and to propose a solution in the form of a ruling, which both Parties agreed in advance to accept (binding).
- The Secretary-General's (1st) ruling, in 1986, required France to pay US $7 million to New Zealand and to undertake not to take certain defined measures injurious to New Zealand trade with the European Communities. The ruling also provided that Major Mafart and Captain Prieur were to be released into French custody but were to spend the next three years on an isolated French military base in Hao, the Pacific.
- The two States concluded an agreement in the form of an exchange of letters on 9 July 1986 ("the 1st Agreement"), which provided for the implementation of the ruling.
- Under the terms of the First Agreement, Major Mafart and Captain Prieur were to be ... transferred to a French military facility on the island of Hao for a period of not less than three years. They will be prohibited from leaving the island for any reason, except with the mutual consent of the two governments.
- Following concern about Major Mafart's health, a French medical team advised that he be evacuated to France for treatment on 10 December 1987. On 11 December France sought New Zealand's consent to this "urgent, health-related transfer" but New Zealand's request that its own medical team should also examine Mafart before he was repatriated was denied when France refused to allow a New Zealand military aircraft carrying a doctor to land at Hao. On 14 December 1987 Mafart left Hao, without the consent of New Zealand. Following medical treatment in Paris, Mafart was permitted to remain in France. New Zealand doctors who examined Mafart after his return to Paris agreed that he could not have been satisfactorily examined in Hao but denied that the evacuation was an emergency measure and concluded that Mafart's health was not such as to preclude his being returned to Hao after the treatment had been concluded.
- Captain Prieur was repatriated in May 1988. On 3 May 1988 the French authorities notified New Zealand that she was expecting her first child and asked consent to her repatriation. New Zealand again requested that an independent medical examination be made. France acceded to this request and a New Zealand doctor was due to arrive in Hao on 6 May. On 5 May, however, the French authorities notified New Zealand that Captain Prieur's father was dying of cancer and that her immediate evacuation had thus become necessary. She was repatriated on 5 May 1988 without the consent of New Zealand and never returned to Hao.
- The 1986 Agreement contained provision for arbitration of any dispute arising out of the agreement. After New Zealand invoked this provision, France and New Zealand concluded a further agreement on 14 February 1989 ("the Supplementary Agreement"), designating the three arbitrators and dealing with the procedure for the arbitration
Held
- (Since the both parties agreed to basis on which Tribunal can reach decision: the letters of 1986 and the applicable rules and principles of customary int’l law) both customary law of treaties and the customary law of state responsibility are relevant and applicable.
- Customary law of treaties, codified in Vienna Convention
àrelevant and applicable here are
àArt.26 pacta sunt servanda, applicable to the determination whether material breached of treaty obligation have been committed
àArt.60 definition of material breach (as a termination or suspension of treaty à 114 )
àArt.70 legal consequence of termination of a treaty
- Customary law of state responsibility
ài) determine the circumstances that may exclude (preclude) wrongfulness
à under “circumstances precluding wrongfulness”, the ILC (int’l law commission) proposed, relevant to here are three provisions: Art.31. force majeure; Art.32. distress; Art.33 state of necessity
àthe excuse of force majeure is not of relevance here. The test is of absolute and material impossibility. Whereas more difficult or burdensome does not constitute force majeure
àthe test of distress is extreme urgency involving elementary humanitarian consideration
àthree conditions
àexceptional circumstances of extreme urgency
àreestablishment
àgood faith
àii) appropriate remedies for breach
à in int’l law, no distinction between contractual and tortuous responsibility, any violation of either of them give rise to state responsibility and duty of reparation
Mafart / Prieur
110.
- in addition to material breaches, there is new, additional non-material damage to New Zealand, resulting from affront to the dignity and prestige of New Zealand
- remedy = reparation, which seems to include satisfaction and declaration
110. New Zealand claims
- declaration (by France?) of admitting to the breach
- return of the agents
- (did not claim recovering damage by money - ad)
111. France claims
- in case of non-material damage, adequate reparation only take form of satisfaction(ßad, apology etc, not money))
- declaration by judge of the breach constitute appropriate satisfaction ( ad - in other words, when judge holds that the state violate the int’l law, which can constitute satisfaction, nothing France need to do)
- what new Zealand claims is cessation of denounced (condemned) behavior rather than restituto
114. return of agent
- ICJ jurisprudence : cessation of wrongful acts is only justified in continuing breaches of international obligations which are still in force at the time the judicial order is issued
- Here, keeping the two agents in Paris is not longer unlawful, since the int’l obligation expired in 1989
119-120
- New Zealand did not request award of monetary compensation
- Tribunal decided not to make an order for monetary compensation
115, 122,123 declaration
- Tribunal rejected the French argument that i) satisfaction is the only appropriate remedy for non-material damage ii) moral damage being compensated by apology
- Because Ruling of Secretary General of 1986 : “should pay 7 million to New Zealand as compensation for all the damage it has suffered” (“all” includes non-material damage)
- (ad, Tribunal could award monetary compensation , but New Zealand did not request it)
- Examples of Satisfaction (ad, for non-material breach) : mentions regret, punishment of the responsible individual, safeguard against repetition, the payment of nominal damage, decision of int’l tribunal declaring unlawfulness of the state’s conduct
- Here, the Tribunal make four declaration and make public
126.
** **
in Rainbow case (arbitration) , for non-material damage to New Zealand, resulting from affront to the dignity and prestige of it, it claimed (i) declaration of admitting to the breach, (ii) return of the agent (iii) not claim recovering damage /
arbitrator held, (i) according to ICJ jurisprudence, cessation of wrongful acts is only justified in continuing breaches of international obligation which are still in force (at the time the judicial order is issued) (ii) rejected French argument that satisfaction is the only appropriate remedy for non-material (iii) took the example of satisfaction : mentions regret, punishment of the responsible individual, safeguard against repetition, the payment of nominal damage, decision of int’l tribunal declaring unlawfulness of the state’s conduct (iv) if N.Z. had requested, arbitrator could have awarded monetary compensation
** **
Iran hostage case (the diplomatic and consular staff case) , US v. Iran, (ICJ), state responsibility, p294
Background
1. US brought a suit against Iran concerning the seizure (attacking the embassy) and holding (following the completion), as hostage, of members of US diplomatic and consular staff and certain other US citizens
2. In 1979, students (militant) overran US embassy in Tehran. Diplomatic and consular personnel and other US citizens were seized as hostage.
3. Despite call for help to prime minister and foreign ministry officials in Iran, and Iranian office in D.C. no attempt was made by the Iranian Gov. to rescue the persons held hostage, to persuade the militants to terminate the action
4. The ill-treatment of hostage
5. Archives and documents were ransacked and disseminated
6. UN secretary general referred it to security council. UN S.C. adopted resolution 457 (1979)
Provisional measure
1. US applied for interim order to protect the hostage. ICJ delivered the order to release the hostage. Iran failed to comply
Iran argued
1. deep-rootedness and the essential character of the Islamic Revolution of Iran, a matter within the national sovereignty of Iran
2. overall problem, more than 25 yrs of continual interference by US in the internal affairs of Iran
Held
1. Has violated and is violating obligations under VCDR 1961, VCCR 1963, and general int’l law
2. Iran is responsible under int’l law
3. Must immediately take all steps to redress the situation resulting from the event
4. Reparation
5. Form and amount of such reparation
Reasoning
1. Iran argue the court should not take cognizance of the case (Iran argued inadmissible)
(1) (ICJ) Detention of diplomatic and consular personnel cannot be considered as “secondary” or “marginal”
1) Secretary general, UN S.C.
(2) Overall problem involving more than 25 yrs of interference by US
1) (ICJ) The court do not decline to take cognizance of one aspect (legal aspect) merely because of the other aspect (political), however important
2) (ICJ) It is common that a legal dispute is only one aspect of a political dispute
3) (Sadat – ICJ does not adopt “political question doctrine”) (셤- use as a defense)
(3) Regarding US intervention, present its own argument
(4) Thus, reject the argument that the court should not take … present case
2. Jurisdiction
(1) ICJ Art.36(1) – “compromissory clause” –
à. Iran and US are parties to the VCDR (1961) and VCCR (1963), and also to Protocol”s” concerning the compulsory settlement of dispute
(2) whether the fact here fall within “dispute arising out of the interpretation or application of the Convention …” (art.1)
(3) regarding diplomatic and consular personnel
1) US claims concern alleged violation by Iran of obligations under several articles of VCDR and VCCR
(4) regarding two private individual
1) VCDR : inviolability of the premise of embassy
2) VCCR : consular function of assisting nationals and protecting its interests
(5) Treaty of Amity
3. On the merits : two phases (1st – i) attacking by student, ii) inaction by gov. / 2nd – inaction by gov.
4. 1st : Armed attack on embassy, overrunning of its premise, seizure of its inmates as hostage, appropriation of its property and archive, and the conduct of Iranian authorities)
(1) regarding attacking by students
1) Whether in itself imputable to the Iranian State
2) No suggestion that the militant had any form of official status, acted on behalf of the State, a link between the militant and competent organ of the State
3) Statement of official approval (after the attack, like congratulation by Khomeini) do not alter the initially independent and unofficial character of the militant’s attack
4) Thus, attack by student is not, in itself, imputable to the Iranian Gov.
(2) regarding government’s inaction
1) (fact : despite call for help to prime minister and foreign ministry officials in Iran, and Iranian office in D.C. no attempt was made by the Iranian Gov)
2) State responsibility for violation of provisions of VCDR and VCCR : obligation to take steps to ensure the protection of US embassy and Consulate, staffs, archives, freedom of movement
3) Art.22 (2) of VCDR (1961) : the receiving State is under a special duty to take all appropriate steps to protect the premises of the mission against any intrusion or damage and to prevent any disturbance of the peace of the mission or impairment of its dignity
4) Art.29 : prevent attack on the person
5) Art.24 inviolable
6) Art 25 : facility
7) Art 26 : freedom of movement
8) Art 27 : free communication
9) Analogous provisions in VCCR 1963
10) Obligation under general int’l law
11) Iranian Gov.’s failure to take steps was due to more than mere negligence or lack of appropriate means
12) à Iran has state responsibility for failure to take steps under VCCR, VCDR, and general int’l law
13) (am, any defense, like necessity, or distress)
5. 2nd : fact which occurred following the completion
(1) Obligation : to re-establish the status quo and to offer reparation for the damage under VCDR and VCCR and general international law
(2) Issue : Who represent the State of Iran in terms of state responsibility = whether imputable to Iranian Gov.
1) Kohmeini : issued a decree “US embassy is a center of espionage” – he is recognized as control power(?)
2) Foreign minister : the events by students enjoy endorsement of government – ad nuclear test case, French foreign minister
3) Judicial authorities
(3) Thus, the series of acts are imputable to Iranian States
(4) cf. If hostage put into trail, violation of diplomatic immunity under Art 31(1) of VCDR 1961, and no witness under Art 31(2) of VCDR
6. Judgment
(1) Iran has violated VCCR, VCDR, and general int’l law
(2) Iran has incurred responsibility towards US, (state responsibility)
(3) Iran must immediately take all steps to redress the situation
(4) No diplomatic and consular personnel is subject to judicial proceeding
(5) Iran has to make reparation,
(6) Breach of obligation still continuing, amount of reparation cannot be determined at the present date
ICJ statute Art. 53 (in absentia)
1. Whenever one of the parties does not appear before the Court, or fails to defend its case, the other party may call upon the Court to decide in favour of its claim.
2. The Court must, before doing so, satisfy itself, not only that it has jurisdiction in accordance with Articles 36 and 37, but also that the claim is well founded in fact and law.
Advisory Opinion on Western Sahara, 1975 ICJ 12, (ICJ), p312
ICJ advisory opinion p512 construction of wall, legality of … nuclear weapon, genocide convention
- (non-binding)
Art. 96 of UN Charter
1. The General Assembly or the Security Council may request ICJ to give an advisory opinion on any legal question.
2. 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.
Art. 65 of ICJ statute
1. The Court may give an advisory opinion on any legal question at the request of whatever body may be authorized by or in accordance with the Charter of the United Nations to make such a request.
Jurisdiction
- Link between question presented by G.A. to ICJ and concerns of G.A. (though G.A. is entitled to ask any question, articulate the linkage)
à. In legality of recourse to nuke weapon case (ICJ), the concerns of G.A. relating the question are: use of force in int’l relations, disarmament process, progressive development of int’l law
- “legal question”
à definition of ‘legal’ : “questions framed in terms of law and raising problems of international law”, Here, (nuclear case), the question is to rule on compatibility with rules of international law
à. The political aspect the question has does not deprive it of legal character it has.
à political aspect : “political nature of the motive, political implications that the opinion might have, are of no relevance”, in establishment of its jurisdiction,
- (contentious character) Israel argued that (i) the request by UN G.A. concerns contentious matter between Israel and Palestine (ii) Israel did not consented to it (in an opinion on construction of wall)
à advisory opinion is, not binding, not to the States but to the Organ, not to settle the dispute but to offer legal advice
à every advisory opinion has nature of contentious case, (less in Genocide, more in nuclear test case)
à the subject matter of the opinion is related to international peace and security, of concern to the UN (in an opinion on construction of wall), UN G.A.’s function concerning the decolonization of the territory (in an opinion on Western Sahara),
- Contention that question is vague and abstract
à. Advisory function is not to settle, but to offer legal advice to organs, different from contentious case
- Contention that it is law-making capacity
à. ICJ’s task is to ascertain the existence of law
- Reply from the ICJ in this issue might adversely affect disarmament negotiation
à a matte of appreciation
- only "compelling reasons" should lead the ICJ, as principal judicial organ of UN, to refuse its opinion
** **
l advisory opinion
1. working on political movement toward G.A. (or S. Council) resolution to request ICJ to give advisory opinion (UN charter art.96 / ICJ art. 65)
2. it is non-binding, but still helpful given the authoritativeness
l Admissibility
1. The A state can stress out the reason for the resolution
(1) As, in legality of recourse to nuke weapon case (ICJ), the concerns of G.A. relating the question are: use of force in int’l relations, disarmament process, progressive development of int’l law
(2) In theory, G.A. and S.C. can request on “any” question (as opposed to “within the scope of”)
(3) Here, the G.A.’s concerns would be …
2. The B state may argue it is not legal but political
(1) “legal” means “questions framed in terms of law and raising problems of international law”, Here, (nuclear case), the question is to rule on compatibility with rules of international law
(2) The political aspect the question has does not deprive it of legal character it has
(3) “political nature of the motive, political implications that the opinion might have, are of no relevance”, in establishment of its jurisdiction
3. The B state argue that it is basically contentious case and B does not consent to it ((i) the request by UN G.A. concerns contentious matter between Israel and Palestine (ii) Israel did not consented to it (in an opinion on construction of wall)
(1) advisory opinion is, not binding, not to the States but to the Organ, not to settle the dispute but to offer legal advice
(2) every advisory opinion has nature of contentious case, (less in Genocide, more in nuclear test case)
(3) the subject matter of the opinion is related to international peace and security, of concern to the UN (in an opinion on construction of wall), UN G.A.’s function concerning the decolonization of the territory (in an opinion on Western Sahara)
4. the question is too vague ?
(1) Advisory function is not to settle, but to offer legal advice to organs, different from contentious
5. Is it law-making capacity ?
(1) ICJ’s task is to ascertain the existence of law
6. Reply from the ICJ in this issue might adversely affect disarmament negotiation
(1) It is a matter of appreciation
7. Only “compelling reasons" should lead the ICJ, as principal judicial organ of UN, to refuse its opinion
** **
Submission
UN General Assembly Resolution 3292[2] requested that the International Court give an advisory opinion on the following questions:
1. Was Western Sahara (Río de Oro and Sakiet El Hamra), at the time of colonization by Spain, a territory belonging to no one (terra nullius)?
And, should the majority opinion be "no", the following would be addressed:
1. What were the legal ties between this territory and the Kingdom of Morocco and the Mauritanian entity?.
Opinion
For the former question, the Court decided that the court could make a decision on the matter, and unanimously voted that at the time of colonization (defined as November 28, 1884), the territory was not terra nullius (that is, the territory, did belong to someone).
For the latter question, the Court decided that it would decide. It was of the opinion that there were legal ties of allegiance between this territory and the Kingdom of Morocco. Furthermore, it was of opinion that there were legal ties between this territory and the "Mauritanian entity". However, the Court defined the nature of these legal ties and declared that neither legal tie implied sovereignty or rightful ownership over the territory. These legal ties also did not apply to "self-determination through the free and genuine expression of the will of the peoples of the Territory."(ICJ Reports (1975) p.68, para. 162)
Results
The opinion of the Court was interpreted differently by the different parties, and each focused on what it sees as supporting its claims.
While Morocco and Mauritania found in the answers to the two questions, a recognition that their claims are legitimate and historically based, Algeria and the Polisario Front focused on the penultimate paragraph, that stated that the court's decision was not to hinder the application of self-determination through the ongoing Spanish referendum.
the Saharawi Arab Democratic Republic was declared by Polisario representatives. Morocco intensified their military presence in the region, and by the end of the year, Mauritania and Morocco had partitioned the territory. Mauritania was too weak and were forced to renounce their claims in 1978. To this day, most of Western Sahara is administered by Morocco, but its sovereignty has not been recognized by the UN and many countries. At the same time, 44 governments recognize the Sahrawi Republic as the legitimate government of Western Sahara.
Issue
1. Whether the questions posed by UN G.A. are not legal, but either factual or historical (academic)
2. Spain argued present case is incompatible with court’s judicial character
(1) The lack of Spain consent to adjudication of the question
(2) Academic nature, lack of object of those questions
Reasoning
1. ICJ opinion concerning the legal consequences for states of the continued presence of south Africa in Namibia notwithstanding security council resolution 276
(1) “ the factual issues underlying the question posed does not alter its character as a “legal question” as envisaged in Art.96 of the Charter
2. only compelling reasons should lead it to refuse to give a requested advisory opinion
(1) ICJ i) as judicial body, faithful to the requirements of its judicial character even in advisory opinion ii) function as the principal judicial organ of the UN
3. Spain considers
(1) The subject of the dispute with the Morocco = subject of the question on the advisory opinion
(2) Without consent of Spain, advisory procedure is used as means of bypassing the consent of the Spain, which is basis of contentious jurisdiction
(3) Thus, it would obliterate the distinction between the two spheres of the jurisdiction + independence of State will be affected
4. In certain cases, the lack of consent of an interested State may render advisory opinion incompatible with the court’s judicial character
(1) Where giving a advisory opinion circumvent the principle that dispute should not be submitted to judicial settlement without consent of State
5. Present case is different from the above case
(1) Present case, arose during the proceedings of the UN G.A., is the matter the G.A. deals / Not arose independently in bilateral relations
(2) The object of G.A. is, not peaceful settlement of dispute or controversy, but proper exercise of its function concerning the decolonization of the territory
(3) The legitimate interest of the G.A. cannot be affected by the absence of consent of the Spain
(4) The issue here is, not the legal status of the territory today, but the rights of Morocco over it at the time of colonization
Held:
1. Court found that migrant population negated terra nullius
2. Court found insufficient evidence of exercise of sovereign authority.
(1) Mauritanian proved cultural and religious link
(2) Morocco proved proximity
3. Status could only be determined by resident population.
tella nullius (?) : e.g. Antarctic
Legality of the Threat or Use of Nuclear Weapons (United Nations), (ICJ) , 1996, p312
Advisory opinion
ICCPR
- Art.6 right to life (no one shall be arbitrarily deprived of his life)
- ICCPR does not cease in times of war, except art.4 of derogation. Art.4 of right to life is Not derogable provision.
- Whether arbitrarily deprived is determined by the applicable lex specialis,(specialized law) i.e. the law applicable in armed conflict.
Genocide convention
- Art.2 of definition of genocide
- If use (threat) of nuke weapon entail the element of intent toward the group, then, prohibition of genocide under the convention is pertinent (applicable)
Existing norms relating environmental protection
- e.g. Ban on methods of warfare which damage natural environment, prohibition of environmental modification technique, Stockholm, Rio Declaration
- issue – not whether the treaties are applicable during armed conflict, but whether the treaties are intended to be total restraint during armed conflict
- conclusion – (i) the treaties is not intended to deprive a state of the right of self-defense because of environmental protection, (ii) environmental protection is one factor in assessing whether an action is in conformity with principle of necessity and proportionality, (iii) the treaties does not explicitly prohibit the use of nuke weapon
UN charter relating use of force / laws of war / specific treaties on nuclear weapon
Unique characteristics of nuclear weapon
UN charter provision relating use of force
- art. 2.4. prohibition of use of force against territorial integrity in a manner inconsistent with UN Charter
à. UN charter neither expressly prohibit, nor permits, the use of specific weapon, including nuke weapon
- Art. 51 self defense
à. Self-defense to the conditions of necessity and proportionality
à. Proportionality may not in itself exclude the use of nuclear weapon in self-defense
- Art. 42 UN S.C. military enforcement
à. (ad, coz use of force is invoked mostly by S.C. in UN regime)
- Reprisal and use of nuke weapon
à. Armed reprisal in times of peace is unlawful / armed reprisal like self-defense requires proportionality
- Signaling readiness to use nuke weapon
à. Signaling that they posses certain weapon (like nuke weapon) to use in self-defense against any state violating territorial integrity or political independence
à. If it is to be lawful, the signal must be in conformity with the UN charter
- Possession itself is an unlawful threat to use force
à. ….
Specific rules (treaty or customary) regulating the legality of recourse to nuclear weapon
Intro
- (the rule we need to look to)
- State practice shows that the illegality of the use of certain weapon e.g. nuke weapon does not result from an absence of authorization, but is formulated in terms of prohibition
à. Lotus case, “unless prohibited, permitted” (positivism)
à., No need to look to whether or how authorized, need to whether prohibited
à. (ad, Lotus, try foreign national, foreigner’s act has effect on its own territory / nuke weapon, state’s activity,)
Treaty
- No specific instrument (prohibition) of recourse to nuclear weapon
- Regional treaty prohibiting use of nuclear weapon
à. Non-nuke state : the regional treaty prohibit use of nuke weapon
à. Nuke-state : Lotus doctirne, it is just regional, reservation, no objection to it
Customary international law
- Element – actual practice + opinio juris à there is no (existing) customary int’l law prohibiting use of nuke weapon
- (actual practice) : “policy of deterrence” = adherence to practice of deterrence / (opinio juris) : very controversial over whether non-recourse to nuke weapon for 50 yrs constitute opinio juris
- Opinio juris from G.A. resolutions
à. In assessing whether G.A. resolutions amount to opinio juris, necessary to look at content and conditions of its adoption
à. Substantial number of negative votes and abstentions fall short of opinio juris
- emerging customary int’l law
à. Emergence is hampered by tension between opinio juris and adherence to practice of deterrence
IHL
- distinction between combatant and non-combatant / prohibition on a certain weapon
- become customary law
à. (i) codification of IHL, (ii) extent of ratification to the treaties, (iii) denunciation clause never been used,
- IHL is jus cogens ?
à. non nuclear states argued IHL is jus cogens, why invoke jus cogens?
à. i) ICJ 38.1.a. (rest 3rd 102.1.b) treaty – they failed to find any treaty which prohibit use of nuclear weapon ii) ICJ 38.1.b. (rest 3rd 102.1.a) customary – failed to prove actual practice and opinio juris. Nuclear states argues persistent objectors (adi, not just persistent objector, no main practice there ?) iii) thus, invoke jus cogens, which prevails over the argument for persistent objector
-à. Court made no decision on it
- though nuke weapon invented after IHL come into existence, IHL is applicable to nuke weapon
- no sufficient basis for a determination on the validity of recourse to nuke weapon
CH6 individuals and international law p339
State protection of individuals (diplomatic protection)
State responsibility for injuries done to individuals
The Nottebohm case, Liechtenstein v. Guatemala, 1955, (ICJ)
Background
1. Nottebohm, born in Germany, obtained Liechtenstein citizenship, subject to Guatemalan penalties as a German enemy alien during WWII.
2. Liechtenstein sued Guatemala on Nottebohm’s behalf in the ICJ
Issue
1. Admissibility of the claim of Liechtenstein in respect of Nottebohm
2. If a state grant a person nationality, and exercise protection of him against another state, does the latter state have an obligation to recognize it ?
3. Without considering validity of Nottebohm’s naturalization according to the law of Liechtenstein
Reasoning
1. Nationality is within the domestic jurisdiction of the state
2. It is international law (not domestic law) which determines whether a state is entitled to exercise protection (against another state) and to seize the Court
3. How to decide the case of dual nationality with regard to the exercise of protection
(1) International arbitrators – stronger factual ties
(2) Court of third state – real and effective nationality
(3) Art.3(2) of ICJ statute “A person who for the purposes of membership in the Court could be regarded as a national of more than one state shall be deemed to be a national of the one in which he ordinarily exercises civil and political rights”
(4) Practice of certain states : bilateral nationality treaties
4. International law leaves it to each state to grant nationality. Whereas, a state cannot claim that the rules it has laid down are entitled to recognition by another state unless genuine connection
5. Nationality is a legal bond, a genuine connection
6. Diplomatic protection and protection by means of international judicial proceedings is the rights of the State (not individual) (no obligation to exercise diplomatic protection, the monetary compensation goes to state, not to the individual )
7. Liechtenstein is not entitled to extend its protection to Nottebohm vis-a-vis Guatemala
Judgment – inadmissible
Notes and Qs p347
1. State responsibility
- state taking up the claim of their citizen for harm done to those citizen by another state
- for violating territorial integrity
- for unlawfully using force against another state
- breaching treaty obligation
2. Attribution and due diligence in state responsibility
(1) State is responsible for the acts of its organs (state actors)
(2) attribution (imputable) - whether the actions of individuals or groups may be attributed to a state
1) Nicaragua v. US, (ICJ), 1986, (H.R. p494, bosnia v. servia) (p558)
2) Whether US is responsible for the human rights violations by the Contras, = is whether the relationship of the contras to US Government was such as to equate the contras, for legal purposes, with an organ of US, or as acting on behalf of US.
3)
4) "Having reached the above conclusion, the Court takes the view that the contras remain responsible for their acts, in particular the alleged violations by them of humanitarian law.
5) For the United States to be legally responsible, it would have to be proved that that State had effective control of the operations in the course of which the alleged violations were committed
(3) “due diligence” : a state is responsible for the failure in preventing individuals from harming foreign nationals
3. State protection
(1) A state has no legal obligation to espouse the claims of its nationals
àwhether to exercise the diplomatic protection is a matter of discretion, is not subject to judicial review (in domestic court)
4. Reparation à restitution, compensation, satisfaction
(1) Satisfaction à apology, declaration
(2) If Liechtenstein had been successful in obtaining compensation from Guatemala for injuries done to Nottebohm, should Liechstein have had to turn the proceeds over to Nottebohm ?
The Barcelona Traction case, (Belgium v. Spain) , (ICJ) 1970, p350
They tries range of ways to solve the expropriation
Fact
- Barcelona Traction, Incorporated, head office in Canada. It formed subsidiaries, some of which incorporated and registered office in Canada, some of subsidiaries in Spain.
l Tantamount to expropriation
à (i) interest payments were disrupted, (ii) (based upon) disrupted interest payment, bankruptcy was declared, (iii) Barcelona Traction did not get proper notice, (iv) seizure of the asset, à expropriation
** As the fact that interest payment was disrupted amount to expropriation in Barcelona traction case, Here,
l Create committee
à Spanish Gov. suggested “creation of committee”, which excluded Belgium,
l Arbitration
à Canadian Gov. proposed arbitration, Spanish Gov. did not anwwer
l Diplomatic notes
à Canadian Gov. made representation to the Spanish Gov. in diplomatic notes, which is sending a (official) letter, (you gotta be careful, coz it is used as evidence in court)
l ICJ
1. jurisdiction
(1) treaty b/w Belgium and Spain accepted compulsory jurisdiction
2. standing
(1) threshold issue – standing, in terms of diplomatic protection
1) issue – whether Belgium’s right was violated because its national’s right was infringed as shareholders in a company not of Belgian nationality
(2) applicable rule
1) in the absence of any treaty on the subject between the Parties, the issue has to be decided in the light of general rules of diplomatic protection (
2) (ad, if there were treaty b/w spain and Belgium, which grant belgium standing in such a situation as this, ICJ would decide pursuant to the treaty)
(3) with regard to the treatment of companies and shareholders, (as to which, int’l law has not established its own rules,) it has to refer to relevant rules of municipal law
1) firm distinction between the separate entity of the company and that of the shareholder
2) ordinarily, no individual shareholder can take legal steps, either in the name of the company or in his own name
3) whenever a shareholder’s interests are harmed by an act done to company, company (not shareholder) look to institute appropriate action
4) But, if aimed at the direct rights of the shareholder, the shareholder has an independent right of action
5) Here, unlawful acts of Spanish authorities were directed against the company (not shareholder)
6) (adi, thus it seems very natural that only company has standing, not shareholder, (coz the act was directed against the company), however need to consider two situations)
(4) Whether it is legitimate to identify an attack on company rights (i.e. grant standing only to company), resulting in damage to shareholders, with the violation of their direct rights, (given two situations unique to here) (these two argument maybe made by Belgium)
1) One situation : company has ceased to exist
a. Company’s status in law is alone relevant, and not its economic condition
b. If legal demise (death) of the company deprive shareholders of all remedies available thru company, then, shareholders have independent right of action, and their gov. could rise
c. Here, though in receivership, it has retained its legal capacity, far from demise of the entity
2) The other : company’s national state lacking capacity to take action on its behalf
a. (b-e : in sum, how to determine company’s nationality, the company’s national state is Canada)
b. Traditional rule is that, diplomatic protection of company is exercised by state where the company was incorporated and the company’s registered office was located
c. In the field of diplomatic protection of company, there is no absolute test of “genuine connection”
d. Here, (i) Barcelona traction was incorporated and has registered office in Canada, (ii) remained there for 50 yrs, (iii) board meetings, (iv) pay tax to Canada,,, thus the company’s link to Canada is manifold
e. Other states of shareholder’s nationality (like US, UK. Belgium) recognized that Barcelona is a company of Canadian nationality
f. (below is to prove that Canada has no lack of capacity to exercise diplomatic protection, rather it discontinued its action of its own free will)
g. Canada retained its capacity to exercise diplomatic protection, no legal impediment to doing so, it has discontinued its action of its own free will
h. no obligation imposed on state to exercise diplomatic protection,
i. when decide not to exercise diplomatic protection
(1) remedy available to national, when national state does not exercise diplomatic protection – no remedy in international law, only resort to municipal law
(2) it does not allow another government to exercise diplomatic protection .
j. if the company’s national state cannot exercise the right, the court can consider equity, but that is not the case here
(5) rationale
1) if shareholder’s national state had the right, too complex and flood gate,
2) national state of the company is first right v. national state of the shareholder is secondary right. Secondary right comes into existence at the time when the original right ceases to exist. Though first right does not exercise, it is not “cease to exist”
(6) conclusion
1) Barcelona could have approached its national state, Canada, to ask for its diplomatic protection
2) Canada has no legal impediment to exercising the right
Why incorporate in Canada ? Tax implication, favorable biz environment, not much protection of shareholder
1. Erga omnes paragraph 33,34 (IL, p142)
(1) Obligation of state, toward the int’l community as a whole, and those arising vis-a-vis another state, in the field of diplomatic protection
àad, erga omnes, only with regard to diplomatic protection ?
(2) If it is erga omnes, in theory, state can assert diplomatic protection though its own national was not harmed
(3) E.g. act of aggression, genocide, slavery, racial discrimination
à atrocity in Darfur, like R2P, US exercise diplomatic protection on behalf of Sudanese against Sudan in ICJ, based upon erga omnes
2. To figure out the treatment of company and shareholder
(1) Consult range of municipal law, is this ICJ 38.1.c general principle ?
3. Flood gate argument
(1) What if a state of 1% shareholder want to assert diplomatic protection ?
A legal obligation erga omnes is considered to be universal in character, thereby giving a state a legal interest in its protection and a capacity to bring suit against another state in the International Court of Justice (ICJ). This legal right is vindicated irrespective of whether the state has suffered direct harm. The basis for this right was recognized by the ICJ in Barcelona Traction, Light & Power Co. (Belg. v. Spain), 1970 I.C.J. 3, 32 (Feb. 5).
jus cogens is a "peremptory norm of general international law," … art. 53 of VCLT.
Judgment : inadmissible, no standing, “jus standi is not conferred on the Belgian Government”
- policy decision : flood gate. E.g. individual can try to be naturalized in a certain state only for the purpose of diplomatic protection. State, can try to naturalize a person only for the purpose of exercising diplomatic protection.
Notes and Qs / p362 Judge Jessup, in a concurring opinion, accepted the genuine link theory,
p232, Amerada, exceptions in FSIA, property expropriated in violation of international law, § 1605(a)(3), à seems to be able to sue Spain in US court
B. individuals as subjects of international law p363
Legal positivism
Legal Positivism
Legal positivism is the thesis that the existence and content of law depends on social facts and not on its merits. The English jurist John Austin (1790-1859) formulated it thus: “The existence of law is one thing; its merit and demerit another. Whether it be or be not is one enquiry; whether it be or be not conformable to an assumed standard, is a different enquiry.”
The positivist thesis does not say that law's merits are unintelligible, unimportant, or peripheral to the philosophy of law. It says that they do not determine whether laws or legal systems exist.
Whether a society has a legal system depends on the presence of certain structures of governance, not on the extent to which it satisfies ideals of justice, democracy, or the rule of law.
According to positivism, law is a matter of what has been posited (ordered, decided, practiced, tolerated, etc.); as we might say in a more modern idiom, positivism is the view that law is a social construction.
P366 the positivist notion that individuals are not fit subjects for international law springs not from a description of reality, but from a jurisprudential philosophy most concerned with a subject-based categorization of types of law.
Whatever the impact of positivist theory, it never absolutely represented the practice of any time.
I suggest that we continue using the word international but understand “nation” to mean not only the national sate but also the individual who are the nationals of state
The Nuremberg Tribunal p365
The origin of Nuremberg
The Nuremberg trials were a series of trials, or tribunal, notable for the prosecution of leadership of Nazi Germany after its defeat in World War II. The trials were held in the city of Nuremberg, Germany, from 1945 to 1946.
Legal basis of the Nuremberg tribunal
- London Charter, issued on August 8, 1945
- Extend their own jurisdiction. Combined allies’ own jurisdiction
D argued No punishment of Crime without a pre-existing law (ex post facto punishment)
- At the time of committing the act defined under Nuremberg Charter, no law existed which make aggressive war crime
- Court : they violated K-B Pact
à. K-B pact prohibits state from resorting to war as an instrument of national policy. Such a war is illegal in international law.
à. (“instrument of national policy” e.g. acquisition of territory, here, war of aggression) which pre-existed and was signed by Germany, by attacking without warning
- Court : D must have known the violation of international law (K- B- Pact)
- D argued : the K-B- Pact does not enact expressly [such wars are crimes] or [set up courts]
- Court : in Hague Convention, nowhere criminal, sentence, try and punish, But they do.
- D argues : it is duty of state, not individual
- Court : international law imposes duties and liabilities upon individuals as well as states à crime against international law only can be enforced by punishing individuals
D argued “crime against humanity” is ex post facto punishment
- It is customary international law, / it is new court, but not new law
- Jurisdiction : defined in the agreement and Charter
- The crimes are defined in art. 6
à i) crime against peace ii) war crime iii) crimes against humanity
- Only “leaders and organizers … “ can be tried. + “no geographical location”
à universal international jurisdictional power
- Art.7 denied the Act of State doctrine, cannot shelter themselves behind their official position ; official position of defendant shall not be considered as freeing them from responsibility
- Art. 3 not allow to invoke internal law (like VCLT 23?) “ the fact that the defendant acted pursuant to orders of his government or of a superior shall not free him from responsibility …
Notes p421
President Bush notified the UN that the the US does not intend to become a party to the Rome treaty and that accordingly the US has no legal obligation arising from its signature in 2001. (, against VCLT 18)
