ICJ Cases 2019-2020 PDF

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ICJ North Sea Continental Shelf CaseContent The Netherlands and Denmark want a different sea-border than Germany. Netherlands/Denmark: equidistance rule → art. 6 Geneva Convention on the Continental Shelf. Germany only signed but not ratified this treaty. They claim this has become international cus...

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ICJ North Sea Continental Shelf Case Content The Netherlands and Denmark want a different sea-border than Germany. 1. Netherlands/Denmark: equidistance rule → art. 6 Geneva Convention on the Continental Shelf. Germany only signed but not ratified this treaty. They claim this has become international customary law. 2. Germany: divide sea equally Question Can the existence of a customary rule be derived from a treaty, and if yes, under what conditions? ICJ Conclusion New custom van be created when: 1. It is of norm creating character (para. 72) 2. The drafters of the treaty provisions intended it to have norm-creating effect 3. State practice is in line with what the provision prescribes a. State practice (objective element) i. Consistency: extensive and virtually uniform (para. 74) ii. Generality: widespread and representative (para. 73) iii. Duration: not really relevant (para. 74) iv. Whose practice: States whose interests were specially affected (para. 73) b. Belief that practice is obligatory by law: opinio iuris (subjective element) (para. 77) i. Frequency or habitual character of act is not enough

Gabcikovo-Nagymaros Project Case Content 1977: Hungary and Czechoslovakia wanted to build dams, etc. around the Nagymaros river and formed a treaty for it. 1989: Hungary stops building on its own territory. 1989/90: Hungary wants to adjust the treaty since they see ecological and financial problems. Czechoslovakia accepts negotiation, however it leads nowhere. 1992: Hungary fully stops building, and Czechoslovakia starts Variant C to alter the course of the river on their territory. Hungary then annuls the treaty on their side. Arguments Hungary/Conclusion ICJ 1. Impossibility of performing treaty form permanent disappearance or destruction of object indispensable for execution of treaty (economic joint investment): article 61 VCLT ICJ: No. Legal régime has not ceased to exist, and, if the exploitation of the investment was no longer possible, it would be because Hungary did not carry out their works (para. 103).

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2. Fundamental change in circumstances: article 62 VCLT a. Change in political nature b. Diminishing economic viability c. Progress of environmental knowledge d. Development of new norms of environmental law ICJ: No. Circumstances are not so closely linked to object and purpose of treaty → essential basis of consent (see criteria in article) (para. 104). 3. Material breach by Slovakia by starting Variant C: article 60 VCLT ICJ: No. In constructing the works for Variant C, Slovakia did not act unlawfully. Termination by Hungary was premature (para. 106/108).

Reparations for Injuries Advisory Opinion Content Count Folke Bernadotte was a UN mandated mediator in the Arab-Israeli conflict and was assassinated in Israel. Question Can the UN bring a claim forward: 1. For damage suffered by UN 2. For damage caused to Bernadotte 3. Against a non-member State (Israel) ICJ Conclusion 1. The UN possesses international personality to bring a claim forward for damage suffered based on its purposes and functions (as specified or implied in its constituent documents and developed practice) 2. The UN can also claim for damage caused to Bernadotte. It is not explicitly said in the UN Charter, but implied. There is a need for protection of their agents as a condition of the performance of their functions. 3. The UN can also make a claim against a non-member State. The fifty member States represent the vast-majority of the international community and had the power to bring into being an entity with objective international personality, and not merely personality recognised by them alone. So: - UN has objective international personality - Which is recognised by non-States - Members form majority of international community

Kosovo Advisory Opinion Content

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Kosovo wants to form an independent State form Serbia and issues a declaration of independence. Some States disagree. Friction between Statehood and right to self-determination (art. 1 Int. Covenant on Economic, Social and Cultural rights and Declaration on Principles of Int. Law) Question Is the unilateral declaration of independence by the provisional institutions of the self government of Kosovo in accordance with international law? ICJ Conclusion 1. Is it prohibited to make such a declaration of independence? ICJ: No. Practice of States does not prohibit this. State practice points clearly to the conclusion that international law contains no prohibition of declarations of independence (para. 79). 2. Is it implicitly prohibited in the principle of territorial integrity (article 2(4) UN Charter)? ICJ: No. The principle only exists between States (para. 80). 3. Does Kosovo have the right to remedial secession> ICJ: Not relevant. Does not fall in scope of the question asked (para. 83).

Jurisdictional Immunities of the State Case Content During WWII, Germany conducted war crimes. Some reparations were made, but not all was compensated. Germany was thus brought before the Greek and Italian Court, but refused to accept the outcome. Germany claimed to have immunity before national courts. Question What is the scope and extent of State immunity before foreing domestic courts in relation to State acts amounting to international crime? ICJ Conclusion 1. Right to immunity under international law exists together with a corresponding obligation on the part of other States to respect such immunity (para. 56) 2. Immunity derives from the principle of sovereign equality (art. 2(1) UN Charter) of States and thus exceptions to State immunity may depart from this fundamental principle (para. 57) 3. The acts of the Nazi armed forces were unlawful, yet they were done in a governmental capacity (acts jure imperii) Italy’s arguments: 1. International law does not accord immunity to a State, when that State committed serious violations of the law of armed conflict (para. 81) ICJ: No. The Court examined State practice and opinio iuris and came to the conclusion that a State is not deprived of immunity by violation of international human rights law or the international law of armed conflict (para. 91) 2. Germany violated rules of jus cogens (peremptory norms), and since jus cogens rules always

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prevail over any inconsistent rule of international law, immunity must give way (para. 92). ICJ: No. There is no conflict, the two rules address different matters. Immunity rules are procedural, peremptory norms are substantial.

Arrest Warrant Case Content The Minister of Foreign Affairs of Congo, mr. Yedoria, was arrested in Belgium for committing war crimes and crimes against humanity. Question Did Belgium violate (customary) international law by issuing the arrest of Yedoria? ICJ Conclusion 1. Step 1: Does Belgium have jurisdictional basis? a. Territoriality (no: crimes not committed on territory Belgium) b. Personality (no: neither victims nor Yedoria citizens of Belgium) c. Protection (no: no national security issues involved) d. Universality (yes? → ICJ did not elaborate (legal and political sensitivity)) 2. Step 2: is there an exception: jurisdictional immunity? a. High ranking officials enjoy immunity for civil and criminal jurisdiction (para. 51) b. Ministers of Foreign affairs enjoy such an immunity to ensure the effective performance of their function: they need to be in constant touch with other countries and also represent a country (para. 53). c. Gravity of crimes does not matter, there is no customary law that would take away immunity. No immunity when (para. 61) 1. Under international law in own country 2. If the representative State waivers that immunity 3. After the term ends (acts prior or subsequent only, or private acts during) 4. Before international criminal court (ICJ)

Tehran Hostages Case (United States v. Iran) Content In 1979, the Shah was exiled and the Iranian Government fell. After a referendum it was decided that the Iranian State will be established under the rule of Shah Khomeini. In the making of the new State, Iranians felt the US was intervening in their internal affairs. Meetings followed, and the US granted the new Shah medical access, if the embassy would remain safe. After the Shah came to the US, antiAmerican demonstrations followed and on 4 november 1979, the seizure of the US Embassy occured and 4

its diplomats were taken hostage. The US instituted proceeding before the ICJ after they were not freed. Question Were the seizure of the United States Embassy and the holding of United States diplomatic staff attributable to Iran? ICJ Conclusion a. To determine whether Iran is responsible, there has to be an internationally wrongful act: article 1 ARSIWA. b. A wrongful act occurs if (article 2): i. It is an action or omission ii. It is attributable to the State (artt. 4-11) iii. It constitutes a breach of an international obligation (artt. 3, 12, 13) iv. (no circumstances precluding wrongfulness: artt. 20-27) The Court divided it into two phases: 1. The armed attack and the hostages on 4 Nov. 1979. a. The attackers did not have any form of official status as agents or organs of the Iranian State, and cannot be regarded as imputable to that State on that basis. Also were not acting on behalf of the State, having not been charged by some competent organ of the State to carry out a specific operation (para. 58). 2. The whole series of events, which occurred following the occupation of the Embassy. a. The action of phase one required the Government to take action and make every effort to free the hostages (para. 69), however no such step was taken (para. 70). b. The Iranian authorities expressly approved and endorsed the situation in public statements: Ayatollah Khomeini said they would remain where they were until the US handed over the former Shah (para. 73). c. This changed the legal nature of the situation, and translated the occupation and detention of the hostages as acts of the Iranian State. The attackers had now become agents of the State (para. 74) and Iran is responsible via article 11 ARSIWA (jo. Artt. 1 and 2).

Obligation to Prosecute or Extradite Case (Belgium v. Senegal) Content Habre is the former leader of Chad, where he killed and tortured many people. In 1990, he was accepted for asylum in Senegal. Belgium requests his extradition, since Senegal is not prosecuting. Senegal dismissed the case, and says they simply do not have the jurisdiction for it. It points the case to the African Union. The Union concludes Senegal has to prosecute. Senegal then changes its law, but then says they have too little money to start the prosecution. Belgium then brings the case before the Court (article 30 CAT). Questions

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1. Did Senegal breach its obligation under article 5 of the Convention against torture by failing to establish jurisdiction (para. 47)? 2. Did Senegal breach its obligation under article 6 and 7 CAT by failing to start a preliminary inquiry into the facts (art. 6) and by failing to prosecute or extradite (art. 7) (para. 49/50)? 3. Is lack of funding a reason to excuse yourself from obligations under article 6 and 7 CAT? ICJ Conclusion 1. Senegal has shown willingness by changing their law and no longer finds it necessary to decide on this point. 2. Senegal did breach its obligation to start a preliminary inquiry into the facts. The Court finds that if a State does not extradite, it has to prosecute. 3. Lack of funding is not a reason to excuse the obligations. Senegal has to start the prosecution asap, and did breach article 6(2) and 7 of the Convention against torture). - For the ICJ to gain jurisdiction, article 30 CAT has to be met (para. 56/59). Negotiation has to prove futile, which it did (para. 57). They also need to disagree about the request for arbitration (para. 61). No answer is seen as an intention not to accept. The ICJ has jurisdiction (para. 63).

Advisory Opinion on Legality of Use of Nuclear Weapons (WHO) Content The World Health Organisation requests an advisory opinion on nuclear weapons. Question In view of the health and environmental effects, … would the use of nuclear weapons by a State in war or other armed conflict be a breach of its obligations under international law including the WHO Constitution? ICJ Conclusion Three criteria of article 96 UN Charter (art. 65 ICJ Statute) have to be met. 1. The opinion has to be requested on a legal question. This criterion has been met, even though it contains political aspects (paras. 15, 16 and 17) 2. The body requesting has to be authorized by GA in accordance with the UN Charter. This is also met (in an agreement between UN and WHO) (para. 12). 3. The third criterion, however, has not. The question is not related to the ‘effects of the use of nuclear weapons’, but to the ‘legality of the use in light of their health and environmental effects’. The competence of the WHO, to deal with the effects and take preventive measures, is not dependent on the legality of the use of such weapons. The functions of the WHO do not have a sufficient connection with the question. The third criterion is not met: it does not fall under the scope of their activities, as required by article 96 UN Charter (paras. 19, 21 and 22).

Nicaragua Case (Nicaragua v. United States)

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Content In 197, the socialist Sandinista Movement overthrew the Somoza regime in Nicaragua. There were still armed groups supporting the old Somoza regime. The US was not a fan of the socialist government and campaigned to support, train and arm the contras. Nicaragarua brought this to the Court, saying the US ‘conceived, created and organised an mercenary army, the contra force (para. 53) and through such an army killed, kidnapped and wounded Nicaraguans. Question Were the acts of the contras attributable to the United States and under which criteria? ICJ Conclusion a. Article 1 and 2 ARSIWA (see articles for further criteria) - It is attributable to the State (artt. 4-11) a. Key component is ‘control’ → if the contras were under strict control of the US, they would de facto be an organ of the State and attributable b. For strict control to exist, the contras had to have been completely dependent on the US i. Not created by US (para. 108) ii. US did not devise their strategy (para. 102-6) iii. Contras did not cease action after cessation of US aids (paras. 110 and 111) →Contras had a measure of autonomy and could not be equated to a de facto organ of the US (para. 109) c. However, the US found that the contras were partially dependent (para. 112): the Court applied the ‘effective control’ test (not over an entity but over specific conduct). Effective control means active involvement in the planning of the operation, the choice of targets and giving instructions. However also not attributable (paras. 115 and 116). →So neither strict control nor effective control (high threshold: the supply of arms and training, etc, weren’t enough).

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