Topic : Application and Function of International law
International Court of Justice Jurisdiction
The ICJ will have jurisdiction over contentious cases under four categories of
submission: formal acceptance (Art. 36 of the Statute of the International Court of
Justice), acceptance ad hoc, specific acceptance through a treaty, and forum prorogatum.
Only if the court finds that it can take jurisdiction (a matter for the court to decide: Art.
36(6) ICJ Statute), then can it go on to hear the merits of the case.
Compulsory Acceptance But With Condition (i.e., ‘Reservation’)
Where states have filed declarations accepting the jurisdiction of the ICJ, the court is
faced with a case of formal acceptance of its jurisdiction.
Where a state accepts the jurisdiction of the court upon the condition that the state itself
has the power to judge whether the court has jurisdiction, the different approaches of
Lauterpacht and Klaestad will arise.
Satisfaction of Declarations
In all cases where the court’s jurisdiction is accepted upon condition, the court must first
determine whether the conditions have been satisfied.
Reciprocity
The principle of reciprocity exists as a matter of custom and is also hinted at in Art. 36(2)
of the Statute of the ICJ itself—which allows a state with no conditions attached to its
declaration to use any conditions imposed by an opposing state, to its own advantage:
Norwegian Loans Case, Interhandel Case.
The ICJ’s jurisdiction
Entirely Cultural or Entirely Traditional and Hence Internal?
This set of conditions raises two sub-issues.
If a dispute is entirely cultural or traditional and hence entirely domestic, then the court
cannot look at it.
If a dispute is entirely cultural or traditional and hence non-legal, then the court also
cannot look at it.
There must be some legal element to the case for the court to hear the matter under Art.
36(2) ICJ Statute, which provides for consideration of disputes involving the following:
- Interpretation of treaties,
- Any question of international law,
- The existence of a fact which would substantiate a breach of
international law, and
- The nature & extent of any reparations flowing from the above
[Art. 36(2)].
As a result, as long as the dispute raises some issues of international law, then the court
can look at it—even though it may also raise issues that are clearly non-legal. We also
know that the court is not afraid to look at matters that are partly political and partly
legal: Nicaragua Case, Legality of Threat or Use of Nuclear Weapons Case.
However, if the matter is solely within a state’s domestic jurisdiction, the ICJ will not be
able to look at it. This is not directly stated in Art. 36 ICJ Statute but may be implied
from the topics that are mentioned in that article. Also, you could invoke Art. 2(7) of the
UN Charter which prohibits the UN from intervening in the domestic jurisdiction of
states. The ICJ is the principal judicial organ of the UN: Art. 92 UN Charter.
Admissibility
The court tends to take a tough attitude towards admissibility arguments and recently has
shown that it is willing to assume jurisdiction over very political cases as long as they
involve some issue of international law: Nicaragua Case, Legality of Threat or Use of
Nuclear Weapons Case.
Human Rights
The Inter-American System is a human rights framework. The UN Charter also protects
human rights (Sei Fuji Case). Some human rights are matters of customary international
law (Filartiga v. Pena-Irala—torture). Some Inter-American instruments are:
American Declaration
Guarantees rights to life and liberty (Art. I), freedom of movement (Art. VIII), right to
health and well-being (Art. XI), right to remuneration for work (Art. XIV), etc.
American Convention on Human Rights
Protects the right to juridical personality (Art. 3), to be free from slavery (Art. 6, see also
the Aloeboetoe Case—making it a rule of jus cogens), to humane treatment (Art. 5), to
liberty (Art. 7), to privacy (Art. 11), freedom of association (Art. 16), freedom of
movement (Art. 22), right to judicial protection (Art. 25), etc.
Even if the state itself is not actively participating in practices which violate human
rights, it may be liable under the Velasquez Rodriguez precedent to "ensure" the
enjoyment of human rights.
1.3. Bring Before ICJ
1.3.1. Jurisdiction of the Court
Both states have accepted the compulsory jurisdiction of the court. This would likely be through formal
acceptance under Art. 36(2) of the Statute of the International Court of Justice (allowing states to deposit
declarations of acceptance). They could also be taken to have submitted to the court’s jurisdiction by means
of an article in the Agreement itself (i.e., specific acceptance through a treaty).
There are two choices in your advice here: (1) try to avoid jurisdiction so as not to have any claim brought
against you, or (2) try to ensure that the court has jurisdiction so that you can press your claim to have the
treaty terminated.
1.3.2. Avoid Jurisdiction
Since the Agreement is not registered the court would not have the ability to rule on the treaty or related
issues. However, notice that in the Nicaragua Case the court has shown how clever it can be in ruling on
the law without the aid of treaties…
This approach of avoiding jurisdiction may be useful if Illuck has sufficient military and economic clout to
enable it to escape any punitive actions by Meany. If Meany is a large and powerful state, however, Illuck
may wish to use the law to defend itself.
1.3.3. Ensure Jurisdiction
Notice that even though the court might have jurisdiction it will have little to work with in deciding the
case because the Agreement has not been registered with the UN Secretariat. This is a requirement under
Art. 80 of the VC and Art. 102 of the UN Charter. Art. 102 provides that if you do not register a treaty with
the Secretariat it cannot be invoked before an organ of the UN (including the International Court of Justice,
General Assembly and Security Council). See, e.g., Maritime Delimitation Case.
Notice, however, that the International Court of Justice in the Nicaragua Case spent a long time discussing
Nicaragua’s attempted (but never completed) ratification of the Statute of the PCIJ... Another interesting
point is that Art. 66(a) of the VC itself allows parties that need an interpretation of VC provisions dealing
with rules of jus cogens to bring them before the International Court of Justice. The question might arise,
then, as to whether this provision would obviate the need for registration...
Answer: To be safe, one simple piece of advice for you to give your client is to register the Agreement with
the Secretariat of the United Nations. Argue fundamental change of circumstances or violation of jus
cogens rule during the merits stage of the case.
1.4. Other Options
Some of you suggested some of the other (non-judicial) pacific methods of dispute settlement. These are set
out in Art. 33 of the UN Charter: negotiation, enquiry, mediation (including good offices), conciliation,
arbitration, […] resort to regional agencies or arrangements, or other peaceful means of their own choice.
2.4. Human Rights
For those that did not pick up the fact that this treaty is likely one contemplating slavery, human rights
violations could be discussed (e.g., right to personal liberty—freedom from detention, freedom of
movement—right to remuneration for work, right to property, right to equal protection of the law, etc.).
Since historical aspects are asked for, you may mention the development of human rights, including under
the Inter-American System (OAS Charter in 1948, Declaration in 1948, and Convention in 1969), and
under the UN (Universal Declaration in 1948).
2. Suit on Basis of Customary International Law
2.1. Formation of Customary Rule
There are two elements that need to be satisfied for a rule of customary international law to emerge:
practice and opinio juris.
2.1.1. Practice
When assessing evidence of state practice we pay attention to such things as the:
duration of the practice (which need not be long, but if not must be uniform—no ‘time immemorial’ rule),
its uniformity (consistency, repetition, etc.), and
its generality (how many states have engaged in it?).
Cases where lack of uniformity of practice has prevented the finding of a customary rule include: Asylum
Case (must be ‘constant and uniform’); Nuclear Weapons Case (UNGA); Anglo-Norwegian Fisheries Case
and the North Sea Continental Shelf Cases (‘both extensive and virtually uniform’).
Notice, however, that the Nicaragua Case said that ‘absolutely rigorous conformity’ in state practice is not
necessary.
The generality of a practice gives rise to assessment of the:
Number of states
The status of the states (most powerful?)
The relationship of the states to the practice (are these the ones most concerned with the issue?)
Notice that the lack of any behaviour tells us little about the formation of a customary rule. This has more
to do with the question of opinio juris…
2.1.2. Opinio Juris
The requirement of opinio juris sive necessitatis can be loosely translated as "a belief in (or claim as to) the
legally permissible or obligatory nature of the conduct in question, or of its necessity." [Mendelson, 66
BYIL 177, at 195]
Opinio juris is most important to help us determine the meaning of a practice—or lack thereof.
Thus, in the Lotus Case the fact that some states had refrained from prosecuting persons in the position of
the French captain was not enough to prove belief that such abstention was required by law (opinio juris).
In the Filartiga v. Pena-Irala Case evidence of states engaging in torture did not make such behaviour legal
because there was no opinio juris accompanying such practice. The Nicaragua Case also tells us that if a
state behaves in a certain way but says that this does not violate the rule or is an exception to the rule, the
behaviour will not be taken to disprove the existence of the rule.
1.1.2. Potential Challenge by Mr. Akee Directly Under the Inter-American System
The same arguments regarding violation of human rights as those made by the UES above in section 1.1.1.
To the Commission:
Mr. Akee has rights of individual petition only for some OAS Charter violations to the Commission. We
have not learned which rights are capable of such petition. Notice here that under the Declaration Mr. Akee
is required to obey the law (Art. XXXIII).
Mr. Akee has complete rights of petition for any Convention violations (Art. 44). Mr. Akee would
nonetheless need to exhaust local remedies and fulfil the other requirements of Art. 46.
To the Court:
He would have to get the Commission to bring a claim because individuals have no such right to appear
before the court: Art. 61. The court can hear cases regarding the violation of any Convention rights (Art.
63) or regarding interpretation of other human rights treaties (Art. 64).
1.2. Challenge by Mr. Akee in Aragua Courts (International Law and Municipal Law Where US-Style
Constitution)
1.2.1. Inter-American Treaty-Based
Since Aragua has a constitution similar to the USA treaties can be ‘automatically incorporated’ into
domestic law: Art. VI of the US Constitution. The question that arises here is whether the various InterAmerican treaties will be taken by Aragua courts to create directly enforceable rights within Araguan law.
There are two possible arguments here.
1.2.1.1 Self-Executing
Art. VI makes treaties the ‘supreme law of the land.’ This means that they will overturn any prior
inconsistent law (except for the constitution), and become federal law. The Pacquete Habana (1900) also
shows us that international law is part of the law of the US as long as there is no treaty, executive,
legislative or judicial law to the contrary.
However, we have contrary legislation here. Two possibilities arise:
The Act is at the federal level—if the Act passed by Aragua is ‘federal’ law, then it will overrule any prior
federal law including treaty obligations (which only come into force domestically as federal law);
The Act is at a lower level—if the Act is passed as lesser legislation it will be overruled by the higher,
federal law of the Inter-American treaties.
1.2.1.2. Non-Self-Executing
However, in order to see if a treaty can be part of the domestic law of Aragua, directly enforceable in its
courts, we may need to apply the self-executing/non-self-executing test. Things that the Araguan courts
will take into consideration include:
The specificity of the treaty provision (most of the Inter-American provisions would satisfy this);
The intent of Aragua when becoming a party. We have no evidence of regarding this matter but would
likely consider the general nature of such treaty obligations. Since the Inter-American system has
international bodies that have been specifically created to enforce treaty commitments it is unlikely that the
court would ‘read into’ these treaties an additional local enforcement mechanism. Or more accurately, it is
unlikely that the court will read such an intention into Aragua’s ratification; and
The similarity of the treaty provision to a normal piece of legislation. This would depend upon the
provision concerned, but many Inter-American provisions would satisfy this test.
2. Other UES Options (Settlement of Disputes under UN)
2.1. Challenge Under Customary International Law at ICJ: UES vs. Douras; UES vs. Aragua
The UES could also attempt to challenge either Aragua’s or Douras’ laws as breaches of customary
international human rights laws. We have studied a few cases that support the idea of human rights existing
under customary international law:
Namibia (S.W. Africa)—against apartheid
Western Sahara—right of self-determination
Filartiga Pena-Irala—against torture
None of these cases deals with infringement of the right of freedom of speech.
However, the UES could attempt to launch a claim against either or both of these states for violation of
such rights in the ICJ (as long as all states concerned were subject to the court’s jurisdiction).
2.2. Other Options
Article 33 of the UN Charter, to which all states are subject, requires pacific settlement of disputes and sets
out the following options: negotiation, enquiry, mediation [including good offices], conciliation,
arbitration, judicial settlement, resort to regional agencies or arrangements, or other peaceful means of their
own choice.
The Security Council, General Assembly and UN Secretariat may all be prevented from dealing with the
actual domestic laws of Aragua and Douras because each of these states could claim that such matters fall
within their domestic jurisdiction. Under Art. 2(7) the UN is precluded from intervening in a state’s
domestic jurisdiction unless it involves enforcement action under Chapter VII. Since this situation is not
likely to constitute a threat to international peace and security, it would not raise the possibility of sanctions
by the Security Council under Chapter VII of the Charter. Peacekeeping may not be helpful here for these
and other reasons.
2. Court Case: Right to Democratic Governance (Right Exist?)
Both states are subject to the court’s jurisdiction and are willing to argue the case on its merits. As a result,
we go right to the main arguments before the court.
The ICJ must look at sources of international law to determine the existence or non-existence of a right to
democratic governance. Art. 38(1) of the Statute of the ICJ states:
Article 38
1. The Court, whose function is to decide in accordance with international law such disputes as are
submitted to it, shall apply:
a. international conventions, whether general or particular, establishing rules expressly recognised by the
contesting states;
b. international custom, as evidence of a general practice accepted as law;
c. the general principles of law recognised by civilised nations;
d. subject to the provisions of Article 59, judicial decisions and the teachings of the most highly qualified
publicists of the various nations, as subsidiary means for the determination of rules of law.
The court is not bound by its previous decisions in the sense of the common law idea of stare decisis: Art.
59, Statute of the ICJ.