International Courts and Tribunals

1
International Courts and Tribunals

• Lecture 17
• February 20

2
Assignment

• February 23
• Advisory Opinion on the Western Sahara
• III. States and International Law
• Tinoco Arbitration
• Kadic v. Karadzic
• Proposal due Febr.23
• Midterm, March 2 EKLCE 1B20
• Wednesday, March 4 Guest Speaker
• Adjunct Professor David Akerson
• Today
• Review Rainbow Warrior
• Diplomatic and Consular Staff Case

3

• State responsibility gives rise to the
• duty of
• REPARATIONS
• Restitution
• Compensation
• Satisfaction

4
RAINBOW WARRIOR CASE

• Issues
• A. Did the action taken by France with regard to
  the French agents constitute a breach of the 1986
  Agreement that warranted satisfaction and
  cessation of the denounced behavior (specific
  performance) returning the agents to Hao?
• B. May distress in a case of extreme urgency
  involving elementary humanitarian considerations
  exclude wrongfulness in the case of breach of a
  treaty obligation?

5
ICJ

• Judgment is binding for the parties, ICJ Statute
  Art.59
• Not a binding source of intl law subsidiary
  source ICJ Stat. Art.38(1)(d)
• Judgment is final without appeal ICJ Stat. Art.
  60
• Judgment may be revised Art.61
• Parties must comply with ICJs decision UN
  Charter, Chapter VII, Art. 94(1)
• If a party fails to comply with ICJs decision
  other party may go to UN Security Council which
  may make recommendations, or decide upon measures
  UN Charter, Chapter VII, Art.94(2) To date,
  its never happened!

6
3 ways ICJ to obtain jurisdiction over a case

• In contentious cases need mutual consent of the
  states involved how can such consent be
  granted?
• 1) Special agreement ICJ Stat. Art. 36(1)
• 2) via a compromissory clause in a treaty entered
  into advance of a particular dispute arising Art.
  36(1)
• 3) through Art.36(2) declarations compulsory
  jurisdiction of the Court.

7
Diplomatic and Consular Staff Case

• 1. Court
• 2. Sources
• 3. Facts
• 4. Issue
• 5. Holding and Decision
• 6. Reasoning
• 7. Significance of case

8
Diplomatic and Consular Staff Case

• Issue
• (1) May the ICJ render a judgment in a case
  between sovereign states where one state fails to
  appear on the basis that it contends the Court
  has no jurisdiction over the case?
• (2) Does the ICJ have jurisdiction over disputes
  between states which concern diplomatic and
  consular premises and the detention of
  internationally protected persons?
• (3) May a govt be responsible for the illegal
  acts of its citizens toward foreign diplomats?

9
On what grounds did the ICJ have jurisdiction
over the Iran in regards to the Diplomatic
Consular Staff Case

• 1) Special agreement ICJ Stat. Art. 36(1)
• 2) via a compromissory clause in a treaty entered
  into advance of a particular dispute arising Art.
  36(1)
• 3) through Art.36(2) declarations compulsory
  jurisdiction of the Court.

10
ADVISORY OPINIONS

• Only states can be parties to cases brought to
  the ICJ
• International organizations cannot be parties to
  a contentious case, but they request
• Advisory opinions
• Any legal question
• - General Assembly or Security Council
• - specialized agency must be authorized to
  request opinions from the ICJ download chart of
  UN system on class website
• - opinion requested must be on a legal question
• - request must be an international law question
  arising within the scope of the activities of the
  requesting agency
• Advisory opinions are not binding, but have
  contributed to the development on international
  law
• Except in case of dispute betw. UN and a member
  state of the UN in regard to the interpretation
  of Convention on the Privileges and Immunities of
  the UN.
• Article VIII, Section 30 the Advisory opinion
  is decisive for the parties to the dispute