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 ICJ’s decision UN Charter, Chapter VII, Art. 94(1) • If a party fails to comply with ICJ’s 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, it’s 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 gov’t 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