International Courts Flashcards
(41 cards)
1
Q
General facts about (international) courts
A
- We tend to think of courts when we think of the law, but important to remember much of legal activity happens outside of courts
- This is especially true in the context of international law, where litigation is still relatively unusual
- Instead, much legal practice happens as part of daily diplomacy, within foreign ministries, etc.
2
Q
What does Article 33 of the UN Charter provide?
A
Article 33 of the UN Charter provides a list of possible methods for the pacific settlement of disputes only a few of which involve judicial or quasi-judicial proceedings
3
Q
What are the methods laid out by Article 33 of the UN Charter for the pacific settlement of disputes?
A
- Negotiation
- Enquiry
- Mediation
- Conciliation
- Arbitration
- Judicial settlement
- Resort to regional agencies or arrangements
- Other peaceful means of their own choice
4
Q
What is the difference between judicial and quasi-judicial?
A
- Judicial involves judges
- Quasi-judicial involves people who are like judges but not exactly, eg. arbitrators
5
Q
Where is the Permanent Court of Arbitration (PCA) based?
A
In the Hague, in the same building as the ICJ, but very different body
6
Q
How was the PCA created?
A
Created by the Hague Convention of 1899 and in existence ever since
7
Q
What is the PCA?
A
- Despite its name, it is not a court and the tribunals it enables are not permanent
- Instead, it is an organization designed to facilitate arbitrations by providing a permanent administrative structure within which parties can organize arbitral tribunals (a registry)
8
Q
What is a registry?
A
An office which does the paperwork which underscores the work of courts or tribunals
9
Q
What are the similarities between arbitration and judicial settlement through courts?
A
- They are both meant to be binding
- Both apply international law
- Both leave the determination of outcome to independent decision-makers
10
Q
What are the differences between arbitration and judicial settlement through courts?
A
In arbitration, consent is given on a case-to-case basis, parties have great flexibility choosing the arbitrators, arbitral tribunals are almost always ad hoc, and there tends to be greater procedural and legal flexibility (including secrecy)
11
Q
How does the PCA work?
A
- Organization
– Each contracting state nominates up to four persons able to serve as arbitrators, whose names go on a list - If a dispute arises and both parties agree to arbitrate (either under an existing treaty or not) they choose one or more arbitrators from the list (often 1, 3, or 5)
- A tribunal under the PCA is then set up, hears the case, makes a decision, and is dissolved (ad hoc basis)
– They can choose rules for picking evidence
– They can choose what laws to apply - The decision is binding on parties and there is no appeal
– No need to give detail on what the tribunal did, what the dispute was, what the result was
12
Q
Examples of PCA jurisdiction
A
Law of the Sea
- Under the UN Convention on the Law of the Sea (UNCLOS), states can choose from one of four methods of peaceful dispute settlement, including the PCA, which is also the default option if none is selected
Investor-state dispute settlement
- Numerous free trade agreements provide for disputes between foreign investors and states to be heard by an arbitral tribunal under the PCA
13
Q
PCA decision making characteristics
A
- The law applied is international law, but parties can agree to accept certain specific principles beyond that into account when hearing the case
- But once the arbitration is begun, the tribunal has the power to decide the exact extent of its jurisdiction
- Judgements are final, but can be nullified on very few ground, eg. if the arbitrator is bribed, or possibly when it has manifestly exceeded its power
14
Q
What is the ICJ sometimes known as?
A
As it is by far the most famous and important international court it is sometimes referred to as the “world court” by laymen
15
Q
How was the ICJ created?
A
Created in 1920 as part of the league of nations as the Permanent Court of International Justice (PCIJ); given its current name under the creation of the UN, but is essentially the same court
16
Q
Who does the ICJ deal with?
A
Unlike the PCA, the ICJ only deals with states (and UN) as parties, though the specific suit may have arisen as a result of something done to an individual (ie. state can sue another state if the right of one of their citizens/companies has been violated)
17
Q
Where is the ICJ based?
A
Based in the Hague in the same building as the PCA
18
Q
Characteristics of the ICJ
A
- The ICJ is part of the UN, one of its six principal organs (unlike PCA)
- A permanent court with public proceedings
- Comprised of 15 permanent judges; each country can only have one judge of their nationality
- Elected to nine-year terms by both the UNGA and UNSC from lists of candidates nominated by the national groups within the PCA
- Candidates need an absolute majority in both to be elected - in practice there is coordination between UNGA and UNSC when it comes to voting
19
Q
How should judges of the ICJ act?
A
- Judges are expected to rule independently of their country of origin, but in practice elections are a mix of political and legal considerations
– National affiliations may affect how lawyers believe a court should function (ie. should it have broad or narrow powers)
– Those choosing judges try to guess how judges are going to vote and therefore try and get them in on these bases - Judges have to represent the “main forms of civilization and of the principal legal systems of the world” - in practice there are informal geographical quotas
20
Q
Ad hoc judges of the ICJ
A
- Article 31 provides that if a party in a case has no judge of its nationality, it can appoint an ad hoc judges for that case only, who can be of any nationality
- Most ad hoc judges vote in favor of the country which appointed them, but not always
- The procedure reflects a compromise between politics and the ideal of entirely objective adjudication - meant to encourage more countries to accept ICJ jurisdiction in their cases
21
Q
What are the ICJ’s three types of jurisdiction?
A
- Contentious issues
- Incidental jurisdiction
- Advisory opinions
22
Q
Advisory opinions of the ICJ
A
- UNGA, UNSC, and UN specialized bodies can request advisory opinions on questions of law
- The ICJ’s opinion if not binding in law, but in practice are viewed as authoritative
- Some are critical of the advisory jurisdiction because it can be used as a backdoor to bring disputes to the ICJ in the absence of state consent
– eg. Palestinian Wall case, Chagos advisory, Use of Nuclear Weapons case
23
Q
Contentious cases of the ICJ
A
- Between states seeking to settle disputes according to law
- States must consent or have consented to the ICJ’s jurisdiction
- Decisions are final and binding
- Judges generally sit as full bench (all 15/16/17) but in recent years have also formed chambers (comprised of a subset of judges)
– Sometimes countries have political bias against judges
– Sometimes judges may not be knowledgeable enough about a topic for a certain case
24
Q
What are the 3 stages of an ICJ case?
A
- The Court must have both jurisdiction and be satisfied of the admissibility of a case
- Then the Court can proceed to decide the merits of the case (after having disposed of any preliminary objections, as the case may be)
- Finally, the court renders a judgement, with dissenting opinions (if any)
25
What are jurisdiction and admissibility (ICJ)?
- Jurisdiction means that the parties have agreed to the Court hearing the case
- Admissibility wants to know if the case should be heard by the Court (eg. whether local remedies have been exhausted, etc.)
26
What are the three types of jurisdiction of the ICJ?
- Compromis/special agreement (case-by-case basis acceptance)
- Compromissory clause in the relevant treaty
- Optional clause: blanket acceptance of the ICJ's jurisdiction (with opt-outs if relevant)
27
Stage 2 of ICJ cases (merits of the case)
- The Court can proceed to decide the merits of the case (after having disposed of any preliminary objections, as the case may be)
- As a case is being heard, the Court can use its incidental jurisdiction to impose eg. interim measures to preserve the rights of parties
- Non-parties can also appear as intervenors to make their views known
28
Stage 3 of ICJ cases (rendering judgement)
- The court renders a judgement, with dissenting opinions (if any)
- Remedies: usually a declaratory judgement (a declaration that the other party was in the wrong) is what is sought
- The Court can also order a party to desist from an illegal practice (return to status quo) and/or to offer reparations, monetary or otherwise
29
Decisions and Compliance for ICJ judgments
- Decisions are binding on the parties only, but are influential more broadly
- Compliance with the ICJ's judgements is up to the states - UNSC has the power to make recommendations on how to enforce the judgement
- But compliance record is actually very good, perhaps because states only go to the ICJ if they accept its jurisdiction in the first place
30
Why have ad hoc tribunals historically been formed?
For much of the history of international criminal law, ad hoc tribunals were set up in response to specific events
31
Examples of ad hoc tribunals being set up for specific events
- First World War: proposals for a special internal court to try the German emperor
- Second World War: International Military Tribunal (Nuremberg) and International Military Tribunal for the Far East (Tokyo), established by the victors of the war
- International Criminal Tribunal for the former Yugoslavia (1993) and for Rwanda (1994)
-- Established by the UN via UNSC resolutions
- Hybrid courts for Cambodia (1997), Sierra Leone (2002), and Lebanon (2009) with mixes of domestic and international features
- The International Residual Mechanism for Criminal Tribunals (2010) to handle consequential matters for the Yugoslavia and Rwanda tribunals
32
Characteristics of the ICC
- A permanent international criminal court, unlike its predecessors
- A court that only tries international crimes committed after the entry into force of the Rome Statute (1 July 2002 or later)
- A court based around complementarity - it will only intervene if states are unwilling or unable to prosecute - a court of last resort
33
Membership of the ICC
- 123 member states to the Rome Statute
-- Most of Europe
-- Russia and China did not ratify (although Russia signed)
- The USA signed but did not ratify, and has passed the "Hague Invasion Act" to deter the ICC exercising jurisdiction against US citizens
34
Judges of the ICC
- The Assembly of States Parties elect judges (18, for 9 years) and the prosecutor (for 9 years)
-- Judges tend to be domestic criminal lawyers (easier to teach them IL than to teach international lawyers criminal law)
35
What are the subject-matter jurisdictions of the ICC?
Articles 5 to 8 of the statue
- (5) Genocide
- (6) Crimes against humanity
- (7) War crimes
- (8) Crimes of aggression (since 2018)
-- Although many states don't like the idea of limits being placed on their right to invade others / wage war
Offences against the administration of justice (Article 70) fall under its gambit
- If one tries to bribe the judge the court may punish that individual
36
Territorial and personal jurisdiction of the ICC (who is under the jurisdiction)
- If the person (and it is only persons) is a national of a state party to the Rome Statute or has accepted the ICC's jurisdiction
- If the act was committed on the territory of a state party to the Rome Statute or has accepted the ICC's jurisdiction
- Situations referred to it by the UN Security Council
37
Temporal jurisdiction of the ICC
- Only for actions after 1 July 2002 (except for crime of aggression)
- If a state ratified after the date, only actions after the ratification date fall under the jurisdiction of the Court
38
How do cases come to the ICC?
- Referral by a state party (any state party will do)
- UN Security Council referral
- Proprio motu (on ones own initiative) investigation by the ICC prosecutor (as long as the jurisdictional requirements are otherwise satisfied)
39
What are the first phases of an ICC case? (when the case is first brought to the ICC) (pre-trial)
- The prosecutor assesses the facts, as well as the satisfaction of complementarity and gravity
- The prosecutor can also decide not to proceed with a case in the interests of justice
- If the case moves ahead, the ICC prosecutor asks the Pre-Trial Chamber to issue summons or arrest warrants to the accused - any state party must cooperate
40
What is the trial + judgment phase of ICC decision making?
- The Trial Chamber conducts the criminal trial, the prosecution being undertaken by the Prosecutor
- Verdict: guilty or not guilty
- Sentencing: no death penalty; up to life imprisonment (possibility of review after 25 years) or 30 years' imprisonment (possibility of review at the two-thirds point)
- Reparations can also be ordered (mostly money, but in practice not very relevant)
- Sentences served at a prison near The Hague
41
Appeals and victim participation in the ICC
- Appeals Chamber can hear appeals against conviction or sentence (or acquittal) (they can argue the sentence is too short) (appeals of acquittal means you can be tried twice for the same crime, but one needs good reason to do so)
- Either accused or Prosecutor can appeal
- Victim participation: they can participate in the proceedings, testify, and even question witnesses
- Victims can appeal decisions on reparations (if they believe they are inadequate) by nothing else
