L7 - int'l courts Flashcards
(22 cards)
intro + courts we’ll discuss
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 IL, where litigation is still relatively unusual
- lawyers usually argue that when you go to court you’ve already lost bc it is costly
Instead, much legal practice happens as part of daily diplomacy, within foreign ministries, etc.
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:
- Negotiation
- Enquiry
- Mediation
- Conciliation
- Arbitration
- Judicial settlement
- Resort to regional agencies or arrangements
- Or other peaceful means of their own choice
today we’ll discuss:
- Permanent Court of Arbitration (PCA)
- ICJ
- Ad hoc int’l criminal tribunals
- ICC
art 33 UN Charter
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:
- Negotiation
- Enquiry
- Mediation
- Conciliation
- Arbitration
- Judicial settlement
- Resort to regional agencies or arrangements
- Or other peaceful means of their own choice
= shows courts are not the only road to pacific settlement of disputes
only two have a (quasi-judicial) character:
- judicial settlement
- arbitration
Permanent Court of Arbitration (PCA)
Based in The Hague, in the same building as the ICJ, but a very different body!
Created by the Hague Convention of 1899 (on the pacific settlement of disputes) and in existence ever since
- seen as oldest int’l court in existence, although it is not really a court
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)
- it facilitates arbitration: gives administration in which states can organize tribunals
- it is a registry: admin, civil servants (that are necessary to do the work that is not visible (judges are visible)
- PCA is only the bureaucracy that enables tribunals
PCA - what is the difference between arbitration and judicial settlement through courts?
Similarities:
- they are both meant to be binding (except prove it was corrupt)
- both apply international law
- both leave the determination of outcome to independent decision-makers!
Differences:
- in arbitration, consent is given on a case-to-case basis
(courts usually consent given in advance, but sometimes also case to case) - parties have great flexibility choosing the arbitrator (usually judges)
(courts usually stuck with who is on the bench) - arbitral tribunals are almost always ad hoc
(courts are often permanent, but not always) - there tends to be greater procedural and legal flexibility (including secrecy)
(advantage of tribunals that you can e.g. pick if the dispute is public or secret)
(court proceedings public by default)
tribunal does arbitration
court does judicial settlement
reality: they really look a like
summary: very often tribunals and courts look really similar, that is normal bc they have borrowed each other’s best practices
- but they are different in principle
- in domestic law easier to distinct them: tribunal usually lower in hierarchy than court
- in some European languages tribunaal means court = used interchangeably (but they are not the same thing)
PCA organization
Organization: Each contracting state nominates up to four persons able to serve as arbitrator, 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
- sometimes e.g. pick 3, each states picks one and these arbitrators pick the last one to ensure objectivity
A tribunal under the PCA is then set up, hears the case, makes a decision, and is dissolved (ad hoc basis)
The decision is binding on parties and there is no appeal
examples PCA jurisdiction
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 (or between states and states)
PCA - decisions
The law applied is IL, but parties can agree to accept certain specific principles beyond that into account when hearing the case
- with int’l courts you don’t get to this: parties can pick procedure, law and arbitrators
But once the arbitration has begun, the tribunal has the power to decide the exact extent of its jurisdiction
Judgments are final, but can be nullified on a very few grounds, e.g. if the arbitrator was bribed, or possibly when it has manifestly exceeded its power
- possibly if tribunal has exceeded its power = controversial bc tribunals have power to decide what their powers are
- binding -> legally enforceable
ICJ
By far the most famous and important international court—sometime referred to as “world court” by laymen
Created in 1920 as part of the LoN as the Permanent Court of International Justice (PCIJ); given its current name after the creation of the UN, but is essentially the same court
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
- Mexican citizens faced execution in state of Texas, Mexico brought a case to the ICJ
ICJ organization
based in The Hague in the same building as the PCA
unlike the PCA, the ICJ is part of the UN (one of its 6 principal organs)
a permanent court, with public proceedings
ICJ personnel
comprised of 15 permanent judges, each country can only have one judge of their nationality
elected to 9y 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
- voting based on remit but also on politics
judges are expected to rule independently of their country of origin, but in practice elections are a mix of political and legal considerations
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
- in practice satisfied by informal geographical quotas = every P5 has a judge of their nationality (stopped being true a couple of years ago) + at least 1 LA, oe Afican etc.
ICJ also has ad hoc judges
ICJ - ad hoc judges
Ad hoc judges: Article 31 provides that if a party in a case has no judge of its nationality, it can appoint an ad hoc judge for that case only, who can be of any nationality
Most ad hoc judges vote in favour 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 case
e.g. Israel brought case to the ICJ, didn’t have a judge -> appointed a judge, who judged mostly in favor of Israel (eventually replaced bc health reasons)
this is biased, but seen as necessary for countries to agree to be adjudicated by the ICJ
it rarely really makes a difference (bc it’s only one of the judges + they cancel each other out)
ICJ jurisdiction
ICJ has three types of jurisdictions:
- contentious issues
- legally binding decisions on disputes between states - incidental jurisdiction
- jurisdiction necessary to make sure contentious jurisdiction is meaningful, not made pointless by how long adjudication takes - advisory opinion
- not binding opinion
ICJ jurisdiction - advisory opinions
UNGA, UNSC and UN specialized bodies can request advisory opinions on questions of law
ICJ opinion is not binding in (positive) law, but in practice seen as authoritative (bc highly qualified publicists are in it)
some are critical of the advisory jurisdiction bc it can be used as a backdoor to bring disputes to the ICJ in the absence of state consent
- seen as way of getting around state consent
E.g. Palestinian Wall case, Chagos Advisory, Use of Nuclear Weapons case
- Palestinian Wall case (wall west bank), asked if it is legal, said it was illegal, Israel said it was fine bc just an advisory opinion
- e.g. Chagos Advisory: question if UK administration Chagos Archipelago was illegal (decolonization Mauritius incomplete at independence) -> UK had to remov3 admin
- use of Nuclear Weapons case = organized by IGOs that asked ICJ to declare use of nuclear weapons illegal (ICJ said it is usually illegal, but can’t say it is always illegal -> so it backfired for the IGOs)
!!!not legally binding but highly authoritative
ICJ jurisdiction vs admissability
court must have both jurisdiction and be satisfied of the admissabiliyt of a case
jurisdiction = parties have agreed to the Court hearing the case:
- Compromis/special agreement (case-by-case basis acceptance) = ad hoc, international agreement to have case heard by the ICJ
- Compromissory clause in the relevant treaty
(e.g. South Africa brought case to ICJ against Israel over Gaza now, breaking the Genocide Convention (has compromissory clause that disputes about meaning of the treaty are to be heard by the ICJ): argues it acts go against the meaning of the Convention, Israel says it is not about the meaning of the treaty)(South-Africa argues that Israel has a diff interpretation of the treaty and asks the court to see who is right, Israel argues South Africa doesn’t care about the meaning of the treaty, but that it wants to stop what Israel is doing in Gaza) - Optional clause: blanket acceptance of the ICJ’s jurisdiction (with opt-outs if relevant)
(country has agreed as general matter to the jurisdiction of the ICJ: any dispute go to ICJ)(smaller countries tend to do that)(can also have opt-outs)
all parties have to agree the court has jurisdiction (funny: the court decides if this is the case, it decides if it has jurisdiction)(if states don’t agree they can boycott)
*jurisidiction can be really controversial
Admissibility: whether local remedies have been exhausted, etc
ICJ - merits stage
= classical stage: that’s were they discuss the 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)
As a case is being heard, the Court can use its incidental jurisdiction to impose e.g. interim measures to preserve the rights of parties
- interim measures: sometimes it takes years to settle a case, so it may be to late
- e.g. South Africa asked ICJ if what Isreal is doing is illegal -> act for interim measures: ask for measures to stop Israel -> ICJ granted some of the interim measures
- incidental jurisdiction = jurisdiction necessary to ensure that the bringing on of the case is not made pointless by how long it takes to settle a case
Non-parties may be permitted to appear as interveners to make submission
- non-parties can ask for permission to become interveners and to make submission, for states almost always granted
ICJ - remedies
finally, the court renders a judgment, with dissenting opinions (if any)
- each judge can write own judgment, sometimes there is dissent
- can also be separate opinions = judge pov differs from that of the majority: agrees with outcome but different argument/logic = separate opinion
- judgement = simple majority -> win the case
- tie: president ICJ has second vote
remedies = usually a declaratory judgement (a declaration that the other party was in the wrong) is what is sought
- remedy stage only for contentious jurisdiction
The Court can also order a party to desist from an illegal practice, and/or to offer reparations, monetary or otherwise
ICJ decisions
Decisions are binding on the parties only, but are influential more broadly
- binding only for the parties and only for the case
Compliance with the ICJ’s judgments is up to the states—UNSC has the power to make recommendations on how to enforce the judgment
But compliance record is actually very good, perhaps because states only go to the ICJ if they accepted its jurisdiction in the first place
- exception: when you didn’t think you allowed the court jurisdiction, but the court judges it has jurisdiction (e.g. Isreal hadn’t thought it would be sued for genocide, otherwise it wouldn’t have signed the convention)
(no one would have thought the compromissory clause in the Genocide Convention would allow states to sue other states for genocide) -> reduces chances of compliance - bc jurisdiction is voluntary, compliance is usually okay
ad hoc int’l criminal tribunals
!!tribunals here are actually courts (bc that is what they are in criminal law) despite being called tribunals
For much of the history of international criminal law, ad hoc tribunals were set up in response to specific events:
First World War: proposals for a special internal court to try the German emperor (for invading other countries and looting)
- never happened bc cousin: queen of NL allowed him to stay in NL
Second World War: International Military Tribunal (Nuremberg) and
International Military Tribunal for the Far East (Tokyo)—established by the victors of the war
- no int’l tribunals applied death penalties after this
50 years no int’l criminal tribunals
International Criminal Tribunal for the former Yugoslavia (1993) and for Rwanda (1994)—established by the UN via UNSC resolutions
Then followed hybrid courts for Cambodia (1997), Sierra Leone (2002), and Lebanon (2009), with mixes of domestic and international features
- new type of int’l court: established by national courts, apply mostly IL???? (i would go with definition in the OG)
The International Residual Mechanism for Criminal Tribunals (2010) to handle consequential matters for the Yugoslavia and Rwanda tribunal
- e.g. if you want to be released early, the original tribunal doesn’t exist anymore -> you can ask for parole/appeals with the residual mechanism (does thing the ad hoc tribunal should do, except it doesn’t exist anymore)
ICC
a permanent int’l criminal court, unlike its predecessors (first permanent in’l criminal court in existence, others were temporary)
- now we have 2 permanent int’l criminal courts, the ICC and the residual mechanism
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 COMPLEMENTARY—it will only intervene if states are
unwilling or unable to prosecute—a court of last resort
- ordinarily, it must be done by domestic courts, if that doesn’t happen than the court steps in, e.g. Russia won’t bring Putin to court for genocide
123 member states to the Rome Statute
Famously, the US signed but did not ratify, and has passed the “Hague Invasion Act” to deter the ICC exercising jurisdiction against US citizens
- US didn’t ratify bc Bush was against (bc fear soldiers would be tried) ratification required 2/3 senate
The Assembly of States Parties elects judges (18, for 9 years) and the Prosecutor (for 9 years)
- is assembly of every member that is member of the Rome Statute
China, Russia, India, Ukraine etc. have never signed
ICC jurisdiction
subject-matter jurisdiction (articles 5 to 8 of the Statute)
- genocide
- crimes against humanity
- war crimes
- crimes of aggression (since 2018)
*so if you did it before then you are safe from the ICC
in addition: offences against the administration of justice (article 70) fall under its ambit
ICC also needs to satisfy territorial and personal 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 (for this case)
- If the act was committed on the territory of a state party to the Rome Statute or has accepted the ICC’s jurisdiction (can be on ad hoc basis, e.g. Ukraine now with genocide by Russia on its territory)
- Situations referred to it by the UN Security Council
also:
temporal jurisdiction
- only for action after 1 july 2002 (except for crime of aggression)
- if a state ratified after the date, only actoins after the ratiication data fall under the jurisidcion of the court
cases come to the ICC by
Referral by a state party (any state party will do)
- not necessarily the state where something happenned
UN Security Council referral
Proprio motu investigation by the ICC prosecutor (as long as the jurisdictional requirements are otherwise satisfied)
- ICC prosecutor can start an investigation at own initiative
- only cases over which the ICC has jurisdiction
ICC - the actors involved
prosecutor assesses the facts, as well as satisfaction of complementarity and gravity
prosecutor can also decide not to proceed with a case in the interest 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 (legal obligation to assist the court in apprehension of the accused)
- pre-trial chamber can decide if a case moves forward, e.g. respons to objections
Trial Chamber conducts the criminal trial, the prosecution being undertaken by the Prosecutor
- trials take years, takes a long time to collect evidence etc.
verdict = guilty or not guilty
sentencing = no death penalty: up to life imprisonment (possibility of review after 25y) or 30 years’ imprisonment (possibility of review at 2/3 point)
reparations can also be offered (monetary fines)
- usually not that relevant: if you do genocide, amount of reparations is not that meaningful
sentences served at prison near The Hague
Appeals Chamber can hear appeals against conviction or sentence (or acquittal!)
- either accused or Prosecutor can appeal
Victim Participation: they can participate in the proceedings, testify and even question witnesses
- victims can appeal decision on reparation but nothing else
