Public International Law Week 6 Flashcards
(33 cards)
Peaceful means of settlement UN Charter
Art 33 UN Charter: members have free choice to use whatever means of settlement they like
Arbitration as a legal mean of settlement
A kind of judicial settlement in which the parties to the dispute determine various elements of the legal process and conclusion.
The parties determine what the dispute is before it goes to the tribunal, determine the applicable law, can also determine the procedure, what the award is, etc.
Judicial settlement
Permanent international courts or tribunals: judges are elected to a standing court or tribunal for a certain amount of time, and they make blinding decisions. E.g., ICJ, ITLOS, ICTY, ICTR, etc.
Contentious jurisdiction of the ICJ
Settlement of disputes between states in a legally binding manner.
Advisory jurisdiction of the ICJ
Legal advice to the UNGA and UNSC, and to other organs of the UN and specialized agencies when authorized by the UNGA
Which parties have access to the ICJ?
Art 34 ICJ: only states may be parties before the ICJ.
Art 35(2) ICJ: other states may have access to the court if under certain conditions laid down by security council, subject to special provisions contained in treaties in force. E.g., As Palestine is not recognized as a state (thus not party to the statute), it must invoke Art 35(2) to bring a case to the ICJ - as it is a party to UNESCO, and Art 35(2) allows states parties to specialized agencies to invoke the treaty, it can bring a case to the ICJ under Art 35(2).
Jurisdiction of the ICJ based on consent
Art 36 ICJ Statute: Two states agree that a certain dispute ought to be settled by the ICJ
Compromissory clause (jurisdictional clause) in treaty
Art 36(1) ICJ: “matters specifically provided in treaties and conventions in force”
Declarations optional clause
Art 36(2) ICJ: “The states parties to the present Statute may at any time declare that they recognize as compulsory ipso facto and without special agreement, in relation to any other state accepting the same obligation, the jurisdiction of the Court in all legal disputes […]” Parties can thus make a declaration and start a case immediately. However, other parties can include reservations saying you can only start the case one-year after stated declaration against me.
Forum prorogatum
Considered present when the respondent state shows up before the court and by its conduct accepts the jurisdiction of the court (usually by not objecting to it)
E.g., Albania showed up and didn’t object to jurisdiction of the court until a very late stage, and then court rejected that shit. If you come to court and don’t reject jurisdiction, then we will take that as you accept it.
Articles that provide for advisory jurisdiction to the ICJ
UNGA: Art 96(1) UN Charter
UNSC: Art 96(1) UN Charter
Other UN organs or specialized agencies authorized by the UNGA: Art 96(2) UN Charter
Criteria for which non-states can bring case to the ICJ for advisory jurisdiction
Art 96(2) UN Charter: 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.”
- Must be authorized by UNGA
- Must be a legal question
- Must be arising within scope of their activities
Non-binding nature of advisory jurisdiction of ICJ
No obligation to comply or follow advisory opinion in this regard.
Prohibition on the use of armed force
Art 2(4) UN Charter: prohibits use of military or armed force only. Also prohibits from the threat of the use of force (however, allowed to threat use of force as form of self-defence).
Prohibition on threat and use of force is in both treaty and CIL (Nicaragua case).
Right to self-defence
Art 51 UN Charter, Nicaragua case also refers inherent right to self-defence as embodied in CIL.
Requirements when using right to self-defence
Must fulfill necessity and proportionality. Must be in self-defence against an unlawful use of force (cannot use self-defence against lawful use of force.)
Conditions when using self-defence
Can only invoke self-defence against an unlawful armed attack as defined under Art 51 UN Charter (so not the use of force adopted by UNSC). Must be against a member state. Must report to the UNSC why you have invoked self-defence. Must also declare you have been a victim of an attack.
Necessity as a requirement of self-defence
Provide that there was no other means to defend yourself, and that the attack was immediate
Proportionality as self-defence.
The self-defence measure must be compared to the ongoing attack and cannot use an extreme amount of force. E.g., cannot invade a country if there is an isolated attack. As long as an attack is going, however, you can invoke self-defence.
Attacks by non-state actors
No mention in Art 51 Charter, however, can be invoked against state that sends armed actors or involved in sending armed actors (again, must see if they had effective control over these actors first).
Standard for invoking self-defence against state using non-state actors
Must show that state had effective control over the non-state actors (Nicaragua case, genocide case). Such as weapons, training, intelligence, etc.
Anticipatory self-defence
Art 51 UN Charter does not allow you to attack first when you think an imminent attack is coming. However, can only use anticipatory self-defence if can prove that attack is very close in time.
Three components of collective security
Chapter VII UN Charter:
1. Peaceful settlement of disputes (Art 2(3) Charter)
2. Prohibition of force, except in self-defence (Art 2(4) Charter; Art 51 Charter).
3. Collective enforcement (Art 39 Charter - UNSC determines existence of threat to the peace, breach of the peace, or act of aggression, then makes recommendations, and/or SC decides on measures pursuant to Articles 41-42 Charter)
UNSC non-military measures
Art 41 UN Charter
