Foco Cono Sur …

• Effect of the judgment – ICJ Statute, Arts 59‐60:– “The decision of the Court has no binding force

except between the parties and in respect of that particular case.” – “The judgment is final and without appeal. …”

• UN Charter, art 94: – “1. Each Member of the United Nations undertakes to comply with the decision of the International Court of Justice in any case to which it is a party.

– 2. If any party to a case fails to perform theobligations incumbent upon it under a judgment rendered by the Court, the other party may have recourse to the Security Council, which may, if it deems necessary, make

recommendations or decide upon measures to be taken to give effect to the judgment.”

A. Contentious Jurisdiction

• On what bases can the Court take jurisdiction over a contentious case?

i. Optional Clause

ICJ Statute,Art 36(2) - 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 concerning:

a) the interpretation of a treaty;

b) any question of international law;

c) the existence of any fact which, if established, would constitute a breach of an international obligation;

d) the nature or extent of the reparation to be made for the breach of an international obligation.

[3. The declarations referred to above may be made

unconditionally or on condition of reciprocity on the part of several or certain States, or for a certain time.]”

Australia’s declaration

“The Government of Australia declares that it recognises as compulsory ipso facto and without special agreement, in relation

to any other State accepting the same obligation, the jurisdiction of the International Court of Justice in conformity with paragraph 2 of Article 36 of the Statute of the Court, until such time as notice may be given to the Secretary‐General of the United Nations withdrawing this declaration. This declaration is effective immediately. This declaration does not apply to:

a) any dispute in regard to which the parties thereto have

agreed or shall agree to have recourse to some other method of peaceful settlement;

b) any dispute concerning or relating to the delimitation of maritime zones, including the territorial sea, the exclusive economic zone and the continental shelf, or arising out of, concerning, or relating to the exploitation of any disputed area of or adjacent to any such maritime zone pending its

delimitation;

c) any dispute in respect of which any other party to the dispute has accepted the compulsory jurisdiction of the Court only in relation to or for the purpose of the dispute; or where the acceptance of the Court's compulsory jurisdiction on behalf of any other party to the dispute was deposited less than 12 months prior to the filing of the application bringing the dispute before the Court.”

Norwegian Loans [1957] ICJ Rep 9

France’s declaration contained the following reservation: – “…

This declaration does not apply to differences relating to matters which are essentially within the national jurisdiction as

understood by the Government of the French Republic. …”

Query the validity of this reservation? See [1957] ICJ Rep 34 (Sep Op Sir Hersch Lauterpacht)

ii. Special Agreement/Compromis

ICJ Statute Article 36(1) – “The jurisdiction of the Court

comprises all cases which the parties refer to it and all matters specially provided p y p for in the Charter of the United Nations or in treaties and conventions in force.”

Compromis in Gabcikovo‐Nagymaros Project [1997] ICJ Rep 7

Compromis, Art 2(1): “The Court is requested to decide on the basis of the Treaty and rules and principles of general

international law, as well as such other treaties as the Court may find applicable:

a) whether the Republic of Hungary was entitled to suspend and subsequently abandon, in 1989, the works on the Nagymaros

Project and on the part of the Gabcikovo Project for which the Treaty attributed responsibility to the Republic of Hungary;

b) whether the Czech and Slovak Federal Republic was entitled to

proceed, in November 1991, to the “provisional solution” and to put into operation from October 1992 this system …;

c) what are the legal effects of the notification, on 19 May 1992, of the termination of the Treaty by the Republic of Hungary.”

Compromis, Art 2(2): “The Court is also requested to determine the legal consequences, including the rights and obligations for the Parties, arising from its Judgment on the questions in

paragraph 1 of this Article.”

iii. Compromissory Clause

Article 36(1) E.g.: – Revised General Act for the Peaceful

Settlement of Disputes (1949), Art 17: “All disputes with regard to which the parties are in conflict as to their respective rights shall, subject to any reservations which may be made under article 39, be submitted for decision to the International Court of Justice, unless the parties agree, in the manner hereinafter provided, to have resort to an arbitral tribunal. It is understood that the disputes referred to above include in particular those mentioned in Article 36 of the Statute of the International Court of Justice.”

E.g., – Optional Protocol to the Vienna Convention on Diplomatic Relations, Art I: “Disputes arising out of the interpretation or application of the Convention shall lie within the compulsory jurisdiction of the International Court of Justice and may

accordingly be brought before the Court by an application made by any party to the dispute being a Party to the present

Protocol.”

– Iran – United States Treaty of Amity, Article XXI(2): “Any dispute between the High Contracting Parties as to the interpretation or application of the present Treaty, not

satisfactorily adjusted by diplomacy, shall be submitted to the International Court of Justice, unless the High Contracting Parties agree to settlement by some other pacific means.”

iv. Transferred Jurisdiction of the PCIJ

ICJ Statute, Art 36(5): – “Declarations made under Article 36 of the Statute of the Permanent Court of International Justice and which are still in force shall be deemed, as between the parties to the present Statute, to be acceptances of the compulsory jurisdiction of the International Court of Justice for the period which they still have to run and in accordance with their terms.”

ICJ Statute, Art 37: – “Whenever a treaty or convention in force provides for reference of a matter to a tribunal to have been instituted by the League of Nations, or to the Permanent Court of International Justice, the matter shall, as between the parties to the present Statute, be referred to the International Court of Justice.”

v. Forum Prorogatum

Corfu Channel [1948] ICJ Rep 15

UNSCR 22 (1947): “The Security Council,… Recommends that the United Kingdom and Albanian Governments should

immediately refer the dispute to the International Court of Justice in accordance with the provisions of the Statute of the Court.” Albanian letter dated 2 July 1947: – “[Albania] would be within its rights in holding that the Government of the United Kingdom was not entitled to bring the case before the

International Court by unilateral application … [Albania] is prepared notwithstanding this irregularity to appear before the Court.

Nicaragua v US [1984] ICJ Rep 392

• Nicaragua alleged many violations by the US of its obligations under international law, including under the UN Charter

• Nicaragua based its application (9 April 1984) on: – Nicaragua’s and the US’s optional clause declarations; and the US‐Nicaragua bilateral FCN treaty of 1956.

• Shultz notification of 6 April 1984 – purported to modify the US’s optional clause declaration with immediate effect

• Nicaragua’s optional clause declaration was made in 1929 re the PCIJ

• Nicaragua had signed and ratified (internally) the PCIJ Statute

• But: Nicaragua had not deposited the instrument of ratification of the PCIJ Statute with the League of Nations

• Issues for the ICJ:

1. Was Nicaragua’s optional clause declaration valid, in force, and binding?

2. If Nicaragua’s optional clause declaration was valid, in force, and binding, what was the effect of the Shultz letter of 6 April 1984 on the US’s optional clause declaration?

Issue 1

• ICJ Statute, Art 36(5): – “Declarations made under Article 36 of the Statute of the Permanent Court of International Justice and which are still in force shall be deemed, as between the parties to the present Statute, to be acceptances of the compulsory jurisdiction of the International Court of Justice for the period which they still have to run and in accordance with their terms.”

• “still in force” vs. “dont la duree n’est pas encore expiree”

• Relevance of treatment of Nicaragua’s declaration by ICJ and UN; also in previous Honduras v Nicaragua dispute in 1960

• ICJ held that: – Nicaragua’s declaration was valid, but not binding, at the time it was made

– It was made for a period that had not expired – it was “still in force” (“dont la durée n’est pas encore expirée”). When Nicaragua ratified the UN Charter and ICJ Statute, this perfected the declaration

Issue 2

• What was the effect of the Shultz letter of 6 April 1984?

• US declaration said that it would “remain in force for five years and thereafter until the expiration of six months after notice may be given to terminate the declaration.”

• US argued the letter was not a “termination”, but a “modification”

• US argued that, even the letter was a “termination”, the six month notice period did not apply on the basis of the principle of reciprocity

• ICJ held that: – “… [optional clause] declarations, even though they are unilateral acts, establish a series of bilateral engagements with other states accepting the same obligation of compulsory jurisdiction …” (para 59)

“The notion of reciprocity is concerned with the scope and substance of the commitments entered into … and not with the formal conditions of their creation, duration or extinction” (para 62). So the US was not able to rely on the principle of reciprocity in terminating its optional clause declaration with immediate effect

Even if the US could rely on the principle of reciprocity, there was no right to terminate its declaration with immediate effect – it had to give a reasonable period of notice (and three days was not reasonable!)

• Merits judgment is at [1986] ICJ Rep 14

• Further US reservation re “multilateral treaties”

• The United States’ acceptance of the Court’s jurisdiction did not extend to disputes arising under a multilateral treaty, unless (i) all parties to that treaty

prepared notwithstanding this irregularity … to appear before the Court.”

B. Advisory Jurisdiction - Articles 65 and 96

- Non-contentious and does not involve states.

- General doctrine:

o Court must be asked by a body with authority to ask (GA, SC, or specialized agency).

o Must be a legal question.

o If a specialized agency is asking, it must fall within the scope of their actions. (See Nuclear Weapons case.)

o Court asks if: (1) it has jurisdiction, and (2) it is admissible.

 The court has never rejected an advisory opinion on the ground that it was improper (inadmissible).

 Court rejects the argument that it can’t decide a question that is political in nature. As long as there is a legal question, it can issue an opinion.

o States may participate – may be directly interested parties, but are not technically parties to the proceedings.

- Not a binding opinion - what the court thinks the law requires.

There are efforts, however, to make the advisory opinions binding.

Even though an advisory opinion isn’t binding, it can help GA or SC resolve political disputes. (See Western Sahara case.)

- Basis of ICJ’s jurisdiction – ICJ Statute, Art 65: 1. “The Court may give an advisory opinion on any legal question at the request of whatever body may be authorized by or in accordance with the Charter of the United Nations to make such a request.

2. Questions upon which the advisory opinion of the Court is asked shall be laid before the Court by means of a written request

containing an exact statement of the question upon which an opinion is required, and accompanied by all documents likely to throw light upon the question.”

- Who can request an advisory opinion? UN Charter, Art 96: 1. “The General Assembly or the Security Council may request the

International Court of Justice to give an advisory opinion on any legal question.

2. 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.”

- NB outcome in WHO’s request for an advisory opinion in Legality of Threat or Use of Nuclear Weapons

- Need for consent of States to the dispute? See ICJ Statute, Art 68:

“In the exercise of its advisory functions the Court shall further be guided by the provisions of the present Statute which apply in contentious cases to the extent to which it recognizes them to be applicable.”

- Status of Eastern Carelia, Ser B, (No 5) 27‐8 (PCIJ, 1923): – “… It is well established in international law that no State can, without its consent, be compelled to submit its disputes with other States either to mediation or to arbitration, or to any other kind of pacific settlement. … Such consent, however, has never been given by Russia. On the contrary, Russia has, on several occasions, clearly declared that it accepts no intervention by the League of Nations in the dispute with Finland. … The Court therefore finds it impossible to give its opinion on a dispute of this kind.”

- Cf Interpretation of Peace Treaties [1950] ICJ Rep 65, 71: “The consent of States, parties to a dispute, is the basis of the Court's jurisdiction in contentious cases. The situation is different in regard to advisory proceedings even where the Request for an Opinion relates to a legal question actually pending between States. The Court’s reply is only of an advisory character: as such, it has no binding force. It follows that no State, whether a Member of the United Nations or not, can prevent the giving of an Advisory Opinion which the United Nations considers to be desirable in order to

obtain enlightenment as to the course of action it should take.”

- Cf Western Sahara [1975] ICJ Rep 12, 23‐4: – “In [Legal Status of Eastern Carelia], one of the States concerned was neither a party to the Statute of the Permanent Court nor, at the time, a Member of theLeague of Nations, and lack of competence of the League to deal with a dispute involving non‐member States which refused its intervention was a decisive reason for the Court's declining to give an answer. In the present case, Spain is a Member of the United Nations and has accepted the provisions of the Charter and Statute;

it has thereby in general given its consent to the exercise by the Court of its advisory jurisdiction. It has not objected, and could not validly object, to the General Assembly's exercise of its powers to deal with the decolonization of a non‐self‐governing territory and to seek an opinion on questions relevant to the exercise of those powers.”

- Although: – “In certain circumstances … the lack of consent of an interested State may render the giving of an advisory opinion incompatible with the Court’s judicial character. … If such a

situation should arise, the powers of the Court under the discretion given to it by Article 65, paragraph 1, of the Statute, would afford

sufficient legal means to ensure respect for the fundamental principle of consent to jurisdiction.”

- Can States appoint judges ad hoc in advisory proceedings? – Yes:

see, e.g., ICJ Statute, Art 68, and ICJ Rules, Art 102(3) - Advisory opinions are not binding

C. Provisional Measures

- ICJ Statute, Art 41: 1. “The Court shall have the power to indicate, if it considers that circumstances so require, any provisional

measures which ought to be taken to preserve the respective rights of either party.

2. Pending the final decision, notice of the measures suggested shall forthwith be given to the parties and to the Security Council.”

- Considerable flexibility in orders that can be made, although they must seek to preserve the rights of the parties which form the subject matter of the dispute

- The ICJ must have prima facie jurisdiction over the merits of the dispute (Interhandel [1957]

- ICJ Rep 105, 117 (Sep Op Lauterpacht));

- There must be a risk that “irreparable prejudice” will be done to the rights of the parties in dispute (Fisheries Jurisdiction [1972]

- ICJ Rep 12, 16); and

- There must be “urgency” (Passage through the Great Belt [1991]

ICJ Rep 12, 17).

- E.g., Convention on the Elimination of All Forms of Racial

Discrimination (Georgia v Russia), (Order of 15 October 2008): –

“[O]n a request for the indication of provisional measures, the Court need not finally satisfy itself, before deciding whether or not to indicate such measures, that it has jurisdiction on the merits of the case, yet it may not indicate them unless the provisions invoked by the Applicant appear, prima facie, to afford a basis on which the jurisdiction of the Court might be founded” (para 85); – “[T]he power of the Court to indicate provisional measures under Article 41 of its Statute “presupposes that irreparable prejudice shall not be caused to rights which are the subject of a dispute in judicial proceedings” …” (para 128); – “[T]he power of the Court to indicate provisional measures will be exercised only if there is urgency in the sense that there is a real risk that action prejudicial to the rights of either party might be taken before the Court has given its final decision …” (para 129).

- Provisional measures have binding force – LaGrand (Germany v United States) [2001] ICJ Rep 466, para 102: – “[T]he context in

which Article 41 has to be seen within the Statute is to prevent the Court from being hampered inthe exercise of its functions because the respective rights of the parties to a dispute before the Court are not preserved. It follows … that the power to indicate provisional measures entails that such measures should be binding, inasmuch as the power in question is based on the necessity, when the circumstances call for it, to safeguard, and to avoid prejudice to, the rights of the parties as determined by the final judgment of the Court.”

D. Third Parties

- ICJ Statute, Art 62: – “1. Should a State consider that it has an interest of a legal nature which may be affected by the decision in the case, it may submit a request to the Court to be permitted to intervene.

2. It shall be for the Court to decide upon this request.”

- ICJ Statute, Art 63: – “1. Whenever the construction of a convention to which States other than those concerned in the case are parties is in question, the Registrar shall notify all such States forthwith.

2. Every State so notified has the right to intervene in the

proceedings; but if it uses this right, the construction given by the judgment will be equally binding upon it.”

- There is no need for the intervening State to demonstrate a

jurisdictional link: Land, Island and Maritime Frontier Dispute [1990]

ICJ Rep 92: –

o The ICJ’s power to permit intervention does not come from consent to its jurisdiction, but it derives that consent which States give, by becoming parties to the ICJ Statute.

o Intervention exists for the very purpose of permitting a State which, because of the absence of a jurisdictional link, cannot become a party to the case.

o The intervener does not become a party to the case. It is not bound by the decision, and only acquires the right to be heard.

o It does not appoint a judge ad hoc.

- “Indispensable” third parties

- The same issue arose in East Timor (Portugal v Australia) [1995] ICJ

- The same issue arose in East Timor (Portugal v Australia) [1995] ICJ

In document Sentidos en educación popular 2003- 2013. Análisis pedagógico de género y prospectivas (página 135-141)