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Peaceful settlement of disputes

Obligation of peaceful settlement Means of peaceful settlement The ICJ contentious and advisory jurisdiction

Peaceful settlement of disputes


UN Charter Art 2(3) All Members shall settle their international disputes by peaceful means in such a manner that international peace and security, and justice, are not endangered. Art 2(4) All Members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the Purposes of the United Nations.

Peaceful settlement of disputes


UN Charter CHAPTER VI PACIFIC SETTLEMENT OF DISPUTES Art 33

The parties to any dispute, the continuance of which is likely to endanger the maintenance of international peace and security, shall, first of all, seek a solution by negotiation, enquiry, mediation, conciliation, arbitration, judicial settlement, resort to regional agencies or arrangements, or other peaceful means of their own choice. (CB 140)

Peaceful settlement of disputes


UN Charter CHAPTER VI Art 33 Parties=States (limited dispute settlement means for individuals). Requirement of State consent. Judicial settlement only one among options vs domestic right of legal action.

Peaceful settlement of disputes


UN Charter CHAPTER VI Art 33: Peaceful means (CB 141-144) negotiation enquiry mediation, conciliation arbitration: eg Permanent Court of Arbitration (Triggs 637, 646-7 not active); Rainbow Warrior CB 273 judicial settlement Role of UN: Arts 36-37, S-G Art 99.

Peaceful settlement of disputes


Role of UN: Arts 36-37, S-G Art 99.
Role of Security Council Article 36 The Security Council may, at any stage of a dispute of the nature referred to in Article 33 or of a situation of like nature, recommend appropriate procedures or methods of adjustment. Article 37 1. Should the parties to a dispute of the nature referred to in Article 33 fail to settle it by the means indicated in that Article, they shall refer it to the Security Council. 2. If the Security Council deems that the continuance of the dispute is in fact likely to endanger the maintenance of international peace and security, it shall decide whether to take action under Article 36 or to recommend such terms of settlement as it may consider appropriate. eg Draft SC Resolution on Burma calls on Govt of Myanmar to begin substantive political dialogue; release Aung San Suu Kyi &c
vetoed by Russia and China (UN Docs S/2007/14 and S/PV.5619 of 12/1/2007 refer).

Peaceful settlement of disputes


Role of Secretary General
Article 97 The Secretariat shall comprise a Secretary-General [who] shall be the chief administrative officer of the Organization. Article 98 The Secretary-General shall act in that capacity in all meetings of [UN organs] , and shall perform such other functions as are entrusted to him by these organs. Article 99 The Secretary-General may bring to the attention of the Security Council any matter which in his opinion may threaten the maintenance of international peace and security. Evolution of S-Gs role: Brian Urquhart, Hammarskjold (1972) 50-2, 253-5 (re Art 99).

Peaceful settlement of disputes


The ICJ: how not to get confused about it [W]hat economic, diplomatic or other measures would you implement to help halt Irans illegal pursuit of nuclear weapons and discourage Irans other undesirable activities? Rudd: Firstly, we would like to initiate legal proceedings against President Ahmadinejad on a charge of incitement to genocide. This could occur through the International Court of Justice on reference by the UN Security Council. (Australia/Israel Review October 2007)

Peaceful settlement of disputes



Only States may be parties in cases before ICJ (Art 34 ICJ Statute) The jurisdiction of the Court comprises all cases which the parties refer to it (Art 36.1)
Security Council cant refer cases to the Court SC may request advisory opinion (Art 65.1).

International Criminal Court has jurisdiction over the crime of genocide (Rome Statute Art 5.1 (a))
has jurisdiction over persons (RS Art 1) SC may refer alleged crime of genocide to ICC (RS Art 13 (b)).

Peaceful settlement of disputes


International Court of Justice: jurisdiction and enforcement Principal judicial organ of the UN (Art 92 UNC) All UN members party to ICJ statute (Art 93 UNC) Only States may be parties to cases before Court (Art 34 ICJ Statute) Obligation to comply + enforcement by SC (Art 94 UNC); [only] parties bound by Courts decision (Art 59 ICJ Statute) Contentious (Ch II ICJ Statute) and advisory jurisdictions (Ch IV).

International Court of Justice


International Court Of Justice: composition Independent judges; 15; elected by UNSC and UNGA (Arts 2-12). Rosalyn Higgins (UK) current President (elected by Court). Ad hoc judges in contentious jurisdiction (Art 31).

International Court of Justice


Contentious cases: How to get a case before the Court?
Art 36 Court statute (CB 155) all options require consent of parties (direct or indirect) The Court can only deal with a dispute when the States concerned have recognized its jurisdiction. No State can therefore be a party to proceedings before the Court unless it has in some manner or other consented thereto. (ICJ website)

International Court of Justice


Article 36 (1) 1. The jurisdiction of the Court comprises
all cases which the parties refer to it and all matters specially provided for in the Charter of the United Nations or in treaties and conventions in force.

International Court of Justice


Article 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.

International Court of Justice


ICJ Compulsory jurisdiction Reservations in relation to any other state accepting the same obligation State may take advantage of reservation of state bringing action (Norwegian Loans case CB 163168)
Norway relied on French reservation exempting matters essentially within domestic jurisdiction of France.

Wide variety: Nicaragua case CB 171.

International Court of Justice


ICJ Compulsory jurisdiction Procedural limitation on modification of declarations
Nicaragua case: US notification amending declaration not accepted by Court (CB 17071; also Nuclear Tests case CB 171) US bound by undertaking of 6 months notice of termination in Art 36 declaration: inescapable obligation towards other states.

International Court of Justice


ICJ Compulsory jurisdiction Connally reservation (CB 161): exclude disputes in domestic jurn of state Vandenberg reservation: CB 173
2 interpretations (CB 175) Nicaragua case rejected in Nicaragua case on 2 grounds (CB 175 - 177)

International Court of Justice


ICJ Compulsory jurisdiction Australian declaration (February 2006) This declaration does not apply to: (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; Should Australia have made this reservation?

International Court of Justice


Preliminary objections
no jurisdiction (Norwegian Loans case) inadmissible because not a legal dispute: disagreement over a point of law or a fact, a conflict of legal views or of interests (Mavromatis case Shaw 5th ed. 969) all necessary parties not before the Court (East Timor case).

International Court of Justice


Provisional measures Test prima facie provisions invoked by the applicant afford a basis on which the jurisdiction of the Court might be established (Legality of Use of Force case CB 179) Variable compliance (Tehran Hostages) vs high level of compliance with Court decisions on merits
Bread v Greene (Paraguay v US); LaGrand (Germany v US); Avena case (Mexico v US) orders not to be executed pending decision (Triggs 124-5) Breard and LaGrand executed; Avena (& 50 other Mexicans covered by application) granted review in State courts.

International Court of Justice


Advisory jurisdiction The Wall case (CB 190) Should the Court have exercised its jurisdiction in the Wall case?

International Court of Justice


Advisory jurisdiction ICJ Statute 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. (Art 65.1)

International Court of Justice


Advisory jurisdiction UN Charter
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. (Art 96)

International Court of Justice


Advisory jurisdiction
Non binding (Peace Treaties) but reflect Courts authoritative views on important issues of international law. Issues Jurisdiction Judicial propriety

International Court of Justice


Advisory jurisdiction Jurisdiction test (Charter + ICJ Statute) Authorised body: UNGA, UNSC,

specialised agencies (ILO, WHO, FAO &c) Legal question Arising within the scope of the activities of requesting agency (Nuclear Weapons case CB 194)

International Court of Justice


Advisory jurisdiction Judicial propriety Art 65 gives the Court the power to examine
whether the circumstances of the case are of such a character as should lead it to decline to answer the request. (PT case) Eastern Carelia case (PCIJ 1923 - CB 189): no Peace Treaties case (CB 188-190): yes

International Court of Justice


Advisory jurisdiction Judicial propriety:
[N]o state can prevent the giving of an AO which the UN considers to be desirable in order to obtain enlightenment as to the course of action it should take . The reply of the Court represents its participation in the activities of the (UN) organisation, and, in principle, should not be refused (Peace Treaties case CB 189) Only refuse for compelling reasons (Nuclear Weapons case).

International Court of Justice


Advisory jurisdiction
The Wall case: The General Assembly Decides, in accordance with Article 96 of the Charter of the United Nations, to request the International Court of Justice, , to urgently render an advisory opinion on the following question: What are the legal consequences arising from the construction of the wall being built by Israel, the occupying Power, in the Occupied Palestinian Territory, including in and around East Jerusalem .(UN Doc A/RES/ES-10/14 of 8/12/2003)

International Court of Justice


Advisory jurisdiction The Wall case: jurisdiction
UNGA authorised under Charter (Art 96.2) Legal question: question directed to legal consequences Arising from activities of UNGA: relating to international peace and security (CB 192-3) Lack of consent no bearing on jurisdiction (CB 191).

International Court of Justice


Advisory jurisdiction
The Wall case: judicial propriety Peace Treaties case Not only bilateral matter Israel-Palestine consent not issue (ie consent could be issue of judicial propriety) Not prevented by radically different views IsraelPalestine: usual situation Sufficient information.

International Court of Justice


Advisory jurisdiction: the Wall case
Jurisdiction Unlikely to refuse request from UNGA or Security Council. Lack of consent no bearing on jurisdiction (Peace Treaties, Wall ). Judicial propriety Lip service to Eastern Carelia principle (CB 194). Not decline request because issue highly political. Lack of consent by interested states may be grounds for refusal on grounds of judicial propriety (Wall case; Western Sahara case CB 192).

International Court of Justice


Advisory jurisdiction
Should the Court have exercised its jurisdiction in the Wall case? Legal question arising within the scope of the (GAs) activities (UNC Art 96.2)? The General Assembly Demands that Israel stop and reverse the construction of the wall in the Occupied Palestinian Territory, including in and around East Jerusalem, which is in departure of the Armistice Line of 1949 and is in contradiction to relevant provisions of international law; UNGA Res ES10/13 27 October 2003.

International Court of Justice


Advisory jurisdiction
Judicial propriety UNGA vote on A/RES/ES-10/14)
90-8 (Australia)-74 (EU, Japan, Russia) 19 not voting (191 UN members at the time).

Consent of Israel?
UK EOV: abstention because it was inappropriate to take such action without the consent of both parties. arguably determined rights and obligations of Israel (CB 194).

International Court of Justice


Advisory jurisdiction: the Wall case Israeli High Court ordered State and military to modify route of the Wall
may not build wall for political reasons, annex territories or fix a border ratio intl law of belligerent occupation inc Fourth Geneva Convention Beit Sourik v Israel HCJ 2056/04 (30/6/04) see next slide for latest decision.

International Court of Justice


Advisory jurisdiction: the Wall case Israel's High Court on 4 September 2007 ordered the military to reroute the separation barrier near the West Bank village of Bilin. "We were not convinced that it is necessary for security-military reasons to retain the current route that passes on Bilin's lands," Chief Justice Dorit Beinish wrote in the unanimous decision. The opinion [is] one of only a handful that have gone against Israel's military in more than 100 cases challenging the barrier. (Washington Post 5/9/2007).

Peaceful settlement of disputes


Obligation of peaceful settlement Means of peaceful settlement The ICJ contentious and advisory jurisdiction
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Peaceful settlement of disputes


UN Charter Art 2(3) All Members shall settle their international disputes by peaceful means in such a manner that international peace and security, and justice, are not endangered. Art 2(4) All Members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the Purposes of the United Nations.
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Obverse of Art 2(4) prohibition on use of force next week.

Peaceful settlement of disputes


UN Charter CHAPTER VI PACIFIC SETTLEMENT OF DISPUTES Art 33

The parties to any dispute, the continuance of which is likely to endanger the maintenance of international peace and security, shall, first of all, seek a solution by negotiation, enquiry, mediation, conciliation, arbitration, judicial settlement, resort to regional agencies or arrangements, or other peaceful means of their own choice. (CB 140)
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Ch VII use of force. What do you notice about this list?

Peaceful settlement of disputes


UN Charter CHAPTER VI Art 33 Parties=States (limited dispute settlement means for individuals). Requirement of State consent. Judicial settlement only one among options vs domestic right of legal action.

No compulsory international court system: discuss later access to ICJ.

Peaceful settlement of disputes


UN Charter CHAPTER VI Art 33: Peaceful means (CB 141-144) negotiation enquiry mediation, conciliation arbitration: eg Permanent Court of Arbitration (Triggs 637, 646-7 not active); Rainbow Warrior CB 273 judicial settlement Role of UN: Arts 36-37, S-G Art 99.
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Negs Rainbow Warrior but went to arbitration after return of agents to France. Enquiry Rafik Hariri assassination Mediation and conciliation (UN Iran-Iraq war, Afghanistan). Arbitration: significant decisions: Alabama claims arbitration (British state responsibility for allowing Confederate vessel to leave Liverpool to attack Union shipping: Britain unsuccessfully argued that there was no domestic law permitting it to stop the vessel) ;1899 Island of Palmas; Texaco (Libyan expropriation); Iran United States Claims Tribunal. Alabama arbitration reflected what rule of cil? (CB 395) PCA: set up under the Hague Conventions for the Pacific Settlement of International Disputes 1899, 1907. Not a court but machinery for establishing tribunals on an ad hoc basis: only 4 cases since 1945. Only a phantom, it consisted of a Registry and a list (Asser quoted by Triggs 637.

Peaceful settlement of disputes


Role of UN: Arts 36-37, S-G Art 99.
Role of Security Council Article 36 The Security Council may, at any stage of a dispute of the nature referred to in Article 33 or of a situation of like nature, recommend appropriate procedures or methods of adjustment. Article 37 1. Should the parties to a dispute of the nature referred to in Article 33 fail to settle it by the means indicated in that Article, they shall refer it to the Security Council. 2. If the Security Council deems that the continuance of the dispute is in fact likely to endanger the maintenance of international peace and security, it shall decide whether to take action under Article 36 or to recommend such terms of settlement as it may consider appropriate. eg Draft SC Resolution on Burma calls on Govt of Myanmar to begin substantive political dialogue; release Aung San Suu Kyi &c
vetoed by Russia and China (UN Docs S/2007/14 and S/PV.5619 of 12/1/2007 refer).

eg Draft SC Res 12 January 2007 on Burma (op paras 6-7): 9-3 (Russia, China)-3: ie vetoed. Only exception where State consent not required Ch VII (use of force: Art 2.9 next week).

Peaceful settlement of disputes


Role of Secretary General
Article 97 The Secretariat shall comprise a Secretary-General [who] shall be the chief administrative officer of the Organization. Article 98 The Secretary-General shall act in that capacity in all meetings of [UN organs] , and shall perform such other functions as are entrusted to him by these organs. Article 99 The Secretary-General may bring to the attention of the Security Council any matter which in his opinion may threaten the maintenance of international peace and security. Evolution of S-Gs role: Brian Urquhart, Hammarskjold (1972) 50-2, 253-5 (re Art 99).
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Refer to S-Gs Good Offices role on Burma. ICJ next.

Peaceful settlement of disputes


The ICJ: how not to get confused about it [W]hat economic, diplomatic or other measures would you implement to help halt Irans illegal pursuit of nuclear weapons and discourage Irans other undesirable activities? Rudd: Firstly, we would like to initiate legal proceedings against President Ahmadinejad on a charge of incitement to genocide. This could occur through the International Court of Justice on reference by the UN Security Council. (Australia/Israel Review October 2007)
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Peaceful settlement of disputes



Only States may be parties in cases before ICJ (Art 34 ICJ Statute) The jurisdiction of the Court comprises all cases which the parties refer to it (Art 36.1)
Security Council cant refer cases to the Court SC may request advisory opinion (Art 65.1).

International Criminal Court has jurisdiction over the crime of genocide (Rome Statute Art 5.1 (a))
has jurisdiction over persons (RS Art 1) SC may refer alleged crime of genocide to ICC (RS Art 13 (b)).
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Art 36 ICJ Statute sets out the Courts jurisdiction. ie ICJ has no jurisdiction over individuals.

Peaceful settlement of disputes


International Court of Justice: jurisdiction and enforcement Principal judicial organ of the UN (Art 92 UNC) All UN members party to ICJ statute (Art 93 UNC) Only States may be parties to cases before Court (Art 34 ICJ Statute) Obligation to comply + enforcement by SC (Art 94 UNC); [only] parties bound by Courts decision (Art 59 ICJ Statute) Contentious (Ch II ICJ Statute) and advisory jurisdictions (Ch IV).

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Many other Courts eg ECHR, ECJ, regional human rights courts, ICTY, ICTR. Being state party does not mean accepts courts compulsory jurisdiction; requires separate act under Art 36 of Courts statute. SC never enforced; only attempt by Nicaragua, vetoed by US.

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International Court of Justice


International Court Of Justice: composition Independent judges; 15; elected by UNSC and UNGA (Arts 2-12). Rosalyn Higgins (UK) current President (elected by Court). Ad hoc judges in contentious jurisdiction (Art 31).
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In practice SC and UNGA coordinate closely on elections. Mostly judges objective although criticism particularly on advisory opinions (eg Wall).

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International Court of Justice


Contentious cases: How to get a case before the Court?
Art 36 Court statute (CB 155) all options require consent of parties (direct or indirect) The Court can only deal with a dispute when the States concerned have recognized its jurisdiction. No State can therefore be a party to proceedings before the Court unless it has in some manner or other consented thereto. (ICJ website)
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International Court of Justice


Article 36 (1) 1. The jurisdiction of the Court comprises
all cases which the parties refer to it and all matters specially provided for in the Charter of the United Nations or in treaties and conventions in force.

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Special Agreements (eg cases on maritime boundary disputes Malaysia-Indonesia, Malaysia-Singapore). Treaties: dispute resolutions clauses in treaties eg Bosnian Genocide (GC); Tehran hostages VCDR, VCCR. Dispute resolution clauses may be optional (eg VCDR) or subject of reservations.

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International Court of Justice


Article 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.
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Referred to as compulsory jurisdiction but really optional. 65 declarations currently on ICJ website.

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International Court of Justice


ICJ Compulsory jurisdiction Reservations in relation to any other state accepting the same obligation State may take advantage of reservation of state bringing action (Norwegian Loans case CB 163168)
Norway relied on French reservation exempting matters essentially within domestic jurisdiction of France.

Wide variety: Nicaragua case CB 171.


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ie both states must recognise jurisdiction of court NL Norway respondent (Norwegian banks and French citizens)

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International Court of Justice


ICJ Compulsory jurisdiction Procedural limitation on modification of declarations
Nicaragua case: US notification amending declaration not accepted by Court (CB 17071; also Nuclear Tests case CB 171) US bound by undertaking of 6 months notice of termination in Art 36 declaration: inescapable obligation towards other states.
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International Court of Justice


ICJ Compulsory jurisdiction Connally reservation (CB 161): exclude disputes in domestic jurn of state Vandenberg reservation: CB 173
2 interpretations (CB 175) Nicaragua case rejected in Nicaragua case on 2 grounds (CB 175 - 177)
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International Court of Justice


ICJ Compulsory jurisdiction Australian declaration (February 2006) This declaration does not apply to: (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; Should Australia have made this reservation?
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East Timor issue.

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International Court of Justice


Preliminary objections
no jurisdiction (Norwegian Loans case) inadmissible because not a legal dispute: disagreement over a point of law or a fact, a conflict of legal views or of interests (Mavromatis case Shaw 5th ed. 969) all necessary parties not before the Court (East Timor case).

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No jurisdiction: Norwegian loans; case inadmissible. Case inadmissible: not a legal dispute but a low threshold: (Mavromatis); parties not before court East Timor/Australia

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International Court of Justice


Provisional measures Test prima facie provisions invoked by the applicant afford a basis on which the jurisdiction of the Court might be established (Legality of Use of Force case CB 179) Variable compliance (Tehran Hostages) vs high level of compliance with Court decisions on merits
Bread v Greene (Paraguay v US); LaGrand (Germany v US); Avena case (Mexico v US) orders not to be executed pending decision (Triggs 124-5) Breard and LaGrand executed; Avena (& 50 other Mexicans covered by application) granted review in State courts.

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International Court of Justice


Advisory jurisdiction The Wall case (CB 190) Should the Court have exercised its jurisdiction in the Wall case?

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International Court of Justice


Advisory jurisdiction ICJ Statute 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. (Art 65.1)

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Elements? Permissive (Peace Treaties CB 189)

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International Court of Justice


Advisory jurisdiction UN Charter
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. (Art 96)
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International Court of Justice


Advisory jurisdiction
Non binding (Peace Treaties) but reflect Courts authoritative views on important issues of international law. Issues Jurisdiction Judicial propriety
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Look at way court considered issues of jurisdiction and jp in Wall case.

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International Court of Justice


Advisory jurisdiction Jurisdiction test (Charter + ICJ Statute) Authorised body: UNGA, UNSC,

specialised agencies (ILO, WHO, FAO &c) Legal question Arising within the scope of the activities of requesting agency (Nuclear Weapons case CB 194)
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International Court of Justice


Advisory jurisdiction Judicial propriety Art 65 gives the Court the power to examine
whether the circumstances of the case are of such a character as should lead it to decline to answer the request. (PT case) Eastern Carelia case (PCIJ 1923 - CB 189): no Peace Treaties case (CB 188-190): yes
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EC: equivalent to deciding dispute between the parties; backdoor access to contentious jurisdiction Question of fact cd not be decided without consent & participation of both parties (Soviet Union/Finland Soviet Union not party to courts statute) Only case; ICJ has never rejected.

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International Court of Justice


Advisory jurisdiction Judicial propriety:
[N]o state can prevent the giving of an AO which the UN considers to be desirable in order to obtain enlightenment as to the course of action it should take . The reply of the Court represents its participation in the activities of the (UN) organisation, and, in principle, should not be refused (Peace Treaties case CB 189) Only refuse for compelling reasons (Nuclear Weapons case).
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International Court of Justice


Advisory jurisdiction
The Wall case: The General Assembly Decides, in accordance with Article 96 of the Charter of the United Nations, to request the International Court of Justice, , to urgently render an advisory opinion on the following question: What are the legal consequences arising from the construction of the wall being built by Israel, the occupying Power, in the Occupied Palestinian Territory, including in and around East Jerusalem .(UN Doc A/RES/ES-10/14 of 8/12/2003)
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Outcome CB 193; delivered 9 July 2004.

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International Court of Justice


Advisory jurisdiction The Wall case: jurisdiction
UNGA authorised under Charter (Art 96.2) Legal question: question directed to legal consequences Arising from activities of UNGA: relating to international peace and security (CB 192-3) Lack of consent no bearing on jurisdiction (CB 191).
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Nuc Weapons case: no jurisdiction to respond to WHO request.

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International Court of Justice


Advisory jurisdiction
The Wall case: judicial propriety Peace Treaties case Not only bilateral matter Israel-Palestine consent not issue (ie consent could be issue of judicial propriety) Not prevented by radically different views IsraelPalestine: usual situation Sufficient information.
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International Court of Justice


Advisory jurisdiction: the Wall case
Jurisdiction Unlikely to refuse request from UNGA or Security Council. Lack of consent no bearing on jurisdiction (Peace Treaties, Wall ). Judicial propriety Lip service to Eastern Carelia principle (CB 194). Not decline request because issue highly political. Lack of consent by interested states may be grounds for refusal on grounds of judicial propriety (Wall case; Western Sahara case CB 192).
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International Court of Justice


Advisory jurisdiction
Should the Court have exercised its jurisdiction in the Wall case? Legal question arising within the scope of the (GAs) activities (UNC Art 96.2)? The General Assembly Demands that Israel stop and reverse the construction of the wall in the Occupied Palestinian Territory, including in and around East Jerusalem, which is in departure of the Armistice Line of 1949 and is in contradiction to relevant provisions of international law; UNGA Res ES10/13 27 October 2003.
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Peace Treaties CB 189: AO desirable in order to obtain enlightenment as to the course of action UN should take represents [Courts] participation in activities of organisation and in principle should not be refused. (Back to 22, 24). UNGA had already decided: how could assist UNGA?

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International Court of Justice


Advisory jurisdiction
Judicial propriety UNGA vote on A/RES/ES-10/14)
90-8 (Australia)-74 (EU, Japan, Russia) 19 not voting (191 UN members at the time).

Consent of Israel?
UK EOV: abstention because it was inappropriate to take such action without the consent of both parties. arguably determined rights and obligations of Israel (CB 194).
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Back to slide 22.

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International Court of Justice


Advisory jurisdiction: the Wall case Israeli High Court ordered State and military to modify route of the Wall
may not build wall for political reasons, annex territories or fix a border ratio intl law of belligerent occupation inc Fourth Geneva Convention Beit Sourik v Israel HCJ 2056/04 (30/6/04) see next slide for latest decision.
34

International Court of Justice


Advisory jurisdiction: the Wall case Israel's High Court on 4 September 2007 ordered the military to reroute the separation barrier near the West Bank village of Bilin. "We were not convinced that it is necessary for security-military reasons to retain the current route that passes on Bilin's lands," Chief Justice Dorit Beinish wrote in the unanimous decision. The opinion [is] one of only a handful that have gone against Israel's military in more than 100 cases challenging the barrier. (Washington Post 5/9/2007).
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