Lecture 7: International Courts

Question 1

Where does most international legal activity happen?

Answer 1

Outside courts - going to courts in IL is still relatively unusual

Question 2

8 ways of solving disputes according to the UN charter

Answer 2

1. Negotiation
2. Enquiry by third party
3. Mediation
4. Conciliation
5. Arbitration
6. Judicial settlement
7. Regional agencies or agreements
8. Other peaceful means of own choice

Question 3

Where is the Permanent Court of Arbitration (PCA) based and when was it created?

Answer 3

Based in The Hague, created by the Hague Convention in 1899

Question 4

What is the PCA?

Answer 4

An organization designed to facilitate arbitrations by providing a permanent administrative structure within which parties (to the Hague Convention) can organize arbitral tribunals (e.g. a registry)

Providing support, file documents, do paperwork etc.

Question 5

3 similarities and 4 differences between arbitration and judicial settlement in courts

Answer 5

Similarities: meant to be binding, apply IL, leave determination of outcome to independent decision-makers

Differences: in arbitration, consent is given on a case-to-base basis; parties have great flexibility in choosing arbitrators; almost always ad hoc; greater procedural and legal flexibility = parties have much more control

Question 6

How does the PCA work - in 4 steps

Answer 6

1. Each contracting state nominates up to 4 persons to serve as arbitrator, whose names go on a list
2. If dispute arises and both parties agreement to arbitrate, they choose one or more from the list
3. A tribunal is set under the the PCA who hears the case, makes a decision, and is dissolved
4. Decision is binding, no appeal (unless corruption)

Question 7

Under the UN Convention on the Law of the Sea (UNCLOS), states can choose from how many methods of peace dispute settlement, and which one is the default option?

Answer 7

4; PCA

Question 8

What law does the PCA apply?

Answer 8

IL + specific principles beyond that if all parties agree

But cannot be changed once arbitration is begun

Question 9

When was the ICJ created?

Answer 9

Created in 1920 as part of LoN; changed name after creation of UN

Question 10

Unlike the PCA, the ICJ only deals with…

Answer 10

States (and UN) as parties (but they can represent individuals)

Question 11

Is that ICJ ad hoc or permanent?

Answer 11

Permanent

Question 12

How are judges elected to the ICJ? - 4 points

Answer 12

1. Comprised of 15 permanent judges; each country can only have one judge of their nationality
2. Elected to 9 year terms by UNGA and SC from lists of candidates nominated by national groups with PCA - need absolute majority in both
3. Must represent the “main forms of civilzation and the principal legal systems of the world” - but in reality there are informal geographical quotas
4. One ad hoc judge can be appointed if a party in a case has no judge of their nationality (can be of any nationality) - meant to encourage more countries to accept ICJ jurisdiction

Question 13

3 types of ICJ jurisdiction

Answer 13

1. Contentious issues
2. Incidental jurisdiction
3. Advisory opinions

Question 14

What is contentious issues jurisdiction - 4 points

Answer 14

1. Between states seeking to settle disputes according to law
2. States must consent
3. Decisions are final and binding, with no appeals
4. Judges generally sit full bench, but also form chambers with subset of judges

Question 15

These 2 requirements must be fulfilled for ICJ to hear a case (contentious issues)

Answer 15

1. Jurisdiction: parties have agreed to ICJ hearing the case
2. Admissibility: local remedies must have been exhausted - ICJ is court of last resort

Question 16

3 ways of recognizing ICJ jurisdiction

Answer 16

1. Compromis/special agreement (case-by-cases acceptance)
2. Compromissory clause in relevant treaty
3. Optional clause: full acceptance (with specific opt-outs if relevant) (only 40 countries in practice)

Question 17

Proceedings of ICJ court case (contentious issues) - 4 steps

Answer 17

1. The court established whether it has jurisdiction
2. Can use incidental jurisdiction to impose interim measures to preserve the rights of parties
3. Court renders a judgment (with dissenting opinions if any)
4. The Court can require remedies, usually a declaratory judgment (a declaration that the other party was wrong), or reparations

Question 18

Compliance with ICJ rulings

Answer 18

Decisions are binding on parties only and is up to the states themselves (UNSC has power to make recommendations on how to enforce the judgment). But compliance is generally good

Question 19

What is incidental jurisdiction?

Answer 19

Incidental to the main proceedings, designed to help the court carry out its contentious jurisdiction

Question 20

What is advisory opinions?

Answer 20

UNGA, UNSC, and UN specialized bodies can request advisory opinions on questions of law, even without a dispute

ICJ’s opinion is not binding, but is viewed as authoritative

Question 21

Why are some critical of advisory opinions jurisdiction?

Answer 21

If can be used as a backdoor to bring disputes to the ICJ in absence of state consent, e.g. Palestinian Wall case

Question 22

Name 5 ad hoc international criminal tribunals related to specific events

Answer 22

1. International Military Tribunal (Nuremberg)
2. International Military Tribunal for the Far East
   3 and 4. International Criminal Tribunal for the former Yugoslavia, and for Rwanda (established by UNSC)
   5.The International Residual Mechanism for Criminal Tribunals (to handle consequential matters for Yugoslavia and Rwanda tribunals, e.g. parole hearings)

Question 23

Main 2 principles of the ICC

Answer 23

Complementarity: it will only intervene if states are unwilling or unable to prosecute (a court of last resort)

Gravity: the most serious crimes

Question 24

Members and judges of the ICC

Answer 24

1. 123 member states to Rome Statute
2. Assembly of States Parties elects 18 judges for 9 years and a prosecutor for 9 years

Question 25

Which treaty established the ICC?

Answer 25

Rome Statute

Question 26

3 types of jurisdiction of ICC + additional offense

Answer 26

1. Subject-matter jurisdiction: genocide, crimes against humanity, war crimes, crimes of aggression since 2018
2. Territorial and personal jurisdiction: if person is a national of a state party to Rome Statute or state has accepted ICC jurisdiction; or if act was committed on the territory of a state party to Rome Statute or has accepted to ICC’s jurisdiction
3. Temporal jurisdiction: only afters after 1 July 2002 (except crime of aggression) or after ratification date

= must be met

Additional offence: offences against the administration of justice (e.g. lying under oath, bribing)

Question 27

3 ways a case can come to the ICC

Answer 27

1. Referral by (any) state party
2. UNSC referral
3. Proprio motu investigation by ICC prosecutor (as long as jurisdictional requirements satisfied)

Question 28

When can the ICC prosecutor decide to not move forward with a case?

Answer 28

If jurisdictional requirements not fulfilled, if it it’s in the interests of justice (ex: if a trial would end a ceasefire)

Question 29

Procedure of ICC case

Answer 29

1. Prosecutor assesses jurisdiction + complementarity and gravity
2. Pre-Trial Chamber issues summons or arrest warrants
3. Trial Chamber conducts criminal trial
4. Verdict and sentencing (no death sentence) + reparations
5. Appeals Chamber hear appeals against conviction, sentence, or acquittal

Question 30

What makes the ICC court procedure different from other traditional ones?

Answer 30

Victim participation, as victims can participate in proceedings, testify, question witnesses, and appeal reparations verdicts