Settlement of Disputes

Grounds of nullity (W2.B)

( null and void means in law that it never happened) 1. Agreement invalid or not in force 2.Appointment of arbitrator not in accordance with the procedure 3. Exceeding authority - if the panel fails to answer questions asked by the parties - if the panel addresses questions not asked by the parties - different solution to the ones presented by the parties, if it comes with a new 3rd solution. 4. Violating rules of judicial procedure - one may not be a judge for his own cause - both sides have a fair opportunity to present their cases - failure to give reasons for the decisions - deceit, corruption, essential error.

Birdseye view of this course: how this is relevant in this weeks WTO topic (W5.A)

- To learn slowly across different mechanisms - WTO is one of these mechanism and is very relevant to what Andrew mentioned yes its a clever system ... many of the disputes in the world relate to many different (international relations, politics, or other) issues but DSU enables states to peal off the trade elements (non-discrimination, trade barriers etc) and have them resolved in wto - Very strong trend in international law to think across differen mechanism - Also focus on the different means to solve disputes

Different means to settle disputes under the DSU: elaboration on the mixed system (W5.A)

---> Lecture mentions a whole list of different methods. - Even some choices to resort to arbitration - The DSU, arbitration can be used in some other situations. Specifically in the context of implementing.

Example of conciliation: CERD: Qatar v. UAE - How should ICJ or CERD deal with arguments of UAE? (W1.B)

--> Basically two disputes have formed with very similar content and the following questions revolve around the fact whether they should be blocked 1. What are requirements before seizing ICJ under Article 22 CERD? - From the Georgia v. Russia case: it is either/or so at least one you need to try before going to the ICJ. - Why try concilliation, if first try negotiation and the simply move to the ICJ: Order ICJ in UAE Interim Measures, 14 June 2019: 25 - any reservations may be important to check! 2. Should CteeERD or ICJ accept principle of 'lis pendens' or 'electa una via' to block unacceptable parallel proceedings on essentially same matters? - ''Nor does it consider it necessary, for the present purposes, to decide whether any electa una via principle or lis pendens exception are applicable in the present situation'' : Order ICJ in UAE Interim Measures, 14 June 2019: 25 - ''Moreover, the Committee, an expert monitoring body entitled to adopt nonbinding recommendations is not convinced that a principle of lis pendens or electa una via is applicable which should rule out proceedings concerning the same matter by a judicial body entitled to adopt a legally binding judgment (thus it can happen at the same time, there is no problem since the concilliation procedure might be solved before going to the ICJ)': Decision of CERD-Committee, on 29 August 2019 3. Must Articles 11-13 and 22 CERD be read as seperate or subsequent or hierarchial/linear proceedings (which cannot be instituted simulteanously)? - They kind of ignored the question - They can try both and/or

Relevance of international law to settling disputes (W1.A)

--> Law without adjudication is the normal situation in international affairs, furthermore International law: DOFGAS 1. Guides policy choices (law as one of the relevant factors) 2. Provides overall framework for resolving dispute 3. Clarifies points of disagreement in defining dispute 4. Provides specific fora & institutions 5. Provides applicable law (if parties choose it) 6. Sets out obligations (if any) to comply with settlement

Bench representation v. Individual representation (W5.B)

1, Bench/ representation - gender - geography - legal systems 2. Individual - qualifications - expertise - merit 3. However this setting is defined with invisible politics.. - Clearly seen in the power politics in 5 permanent members. - Also more invisible politics. - underlined in secrecy

Selection of arbitrators (W2.B)

1. (Selection of Arbitrators) Membership - uneven number - rather not 1, since all parties wants one arbitrator at least. - in theory could be 1 arbitrator which could be effective 2. (Selection of Arbitrators) Procedure to be followed - when they started drafting agreements they did not mention what happened if no-one appointed an arbitrator. This is why these rules of procedure are important since this makes sure the procedure does not get stuck. So the agreement will say e.g ''appoint one within 6 months otherwise we do so'' 3. (Terms of Reference) Procedural arrangements - The forum/the how/the where - Evidence: important - Appointment of experts - Provisional measures: very important! - How will get the people involved get paid. 4. (Terms of Reference) Questions to be answered - what the dispute is about - this can be very challenging - huge issues if the questions are framed too broadly/narrowly 5. (Basis of the award/Applicable law) IL 6. (Basis of the award/Applicable law) place emphasis or law 7. (Basis of the award/Applicable law) other bases such as domestic law - e.g Trainsmelter case 8. The effect of the award - binding? almost always yes - final? not final until parties have decided to do so 9. Finality depends on - option of appeal -interpretation/application -implementation - revision - error - nullity

Slide with the overview of diplomatic and adjudicationary means (W5.A)

1. (To place it in the red section) DSU would fall under ICJ and other courts - there is little control, no choice of applicable law, you cannot change the rules of the DSU, no choice of arbitrators. - you can control: discretion in the panel proceedings.. whether they will bring a panel proceeding, whether they will fall back on consultation, and whether panel proceedings whether these will be postponed. 2. (To place it in the green section) ICJ and other international courts, the AB or panel or not courts, they do not issue judgements they issue reports. After that the DSB has to accept these. Member states retain control over it. - there is a reason why they have a sui generis status. 3. Mando thinks they should not fall within green or red since they have place of their own.

UN Fact-Finding Commissions: introduction (W2.A)

1. ... important mechanisms in the 'international toolbox of conflict prevention'? 2. ... important tools to combat imputiny? 3. ... 'signal concern without commitment'? 4. ... 'useful semi-legal tools for responding to an unfolding crisis'? 5. ... 'significant weapon in armoury of world order'?

Forum shopping + slicing a situation/dispute explained more elaborately (W1.A)

1. A dispute will be somehow "reduced" and "sliced" in order to fit the jurisdictional constraints of int'l courts. 2. e.g. Georgia-Russia dispute/conflict - Use of diplomatic means - Consultation in the context of CERD Committee? Proceedings before the ICJ concerning the Convention on the Elimination of Racial Discrimination - Inter-State applications brought before the ECtHR on alleged violations of the ECHR 3. e.g. ongoing Gulf crisis

Jurisdiction ICJ can exist based on consent given via: (W1.B)

1. Ad hoc 'special agreement' 2. A 'compromissory' treaty clause 3. Optional clause declaration (art. 36.2 ICJ Statute) 4. Forum prograorum

IHFFC first mission in 2017: Ukraine (W2.A)

1. Again the IHFFC was called to help 2. Between two organisation, the agreement was also drawn up between these two with a memorandum 3. IHFFC asked to help to establish facts, against the background of IHL, although criminal responsibility and accountability are outside the scope 4. It concluded that it was very unlikely that the vehicle was the target. More reasonable wrong place and wrong time. 5. Final conclusion was: constitutes an indiscriminate and unlawful of a verhicle pursuant to IHL

Intervention and IOs (W3.B)

1. Are IOs allowed to intervene - No ICJ is only open for states 2. Are States allowed to intervene? - Not any state, only those with a direct legal interest. - A non UN member state could intervene! 3. Discretionary power or not of the ICJ? - whether they can say yes or no without any explanation, if a state can prove that they need to intervene would therefore most often be accepted by the ICJ - Tunisia/Libya [17]: judges seem to indicate that the power of disretion was very limited - Railway Traffic between Lithuania & Poland 4. Relationship between Arts. 62 & 63 ICJ Statute - S.S. Wimbledon (p. 12)

Art. 9 ICJ (W5.B)

1. Art 9 ICJ Statute: At every election, the electors shall bear in mind not only that the persons to be elected should individually possess the qualifications required, but also that in the body as a whole the representation of the main forms of civilization and of the principal legal systems of the world should be assured. 2. It discusses representation v. qualifications: are they of the same legal weight? What really weighs heavily are the statutory requirements which are the individual requirements with some qualifications and a lot of merits.

Does the intervening state have to prove their jurisdictional link? (W3.B)

1. Art. 62 ICJ Statute is silence 2. Art. 81(2)(c) Rules of Court? Drafters were working under compulsory jurisdiction 3. Relevant case-law - Libya/Malta → see Sep. & Diss. Op. of judges, some said yes others said no • - Land, Island & Maritime Frontier Dispute (1990), paras. 97-100 - Land and Maritime Boundary case (1999), para. 15 4. You do not need a jurisdictional link - if we say you are not a party to the dispute then the link of the jurisdiction should be reserved for actual parties to the disputes 5. Can intervening States appoint an ad hoc judge? 6. Is there a res judicata for the intervening State? - Land, Island & Maritime Frontier Dispute: You do not need a jurisdictional link. Since you are not a party to the dispute, you don't need a jurisdictional link. 7 --> Kijk nog maar even waar dit thuishoort totaal niet duidelijk uit de lecture te halen: unilateral statements are only binding if they have a certain intent to create a binding obligation.

Examples UN fact finding

1. Australia/Nauru: to raise awarness and attention https://news.un.org/en/story/2015/05/497962-un-rightsexperts-urge-nauru-set-monitoring-body-asylum-seekers-detained-island 2. UK: to report and to record https://www.theguardian.com/society/2018/aug/22/un-poverty-chief-callsfor-evidence-on-effects-of-austerity-in-uk 3. Hungary https://www.ohchr.org/EN/NewsEvents/Pages/DisplayNews.aspx?NewsID=23879&L angID=E 4. (US) https://www.businessinsider.nl/un-expert-san-francisco-homeless-cruelty2018-11?international=true&r=US --> Fact finding often has dual functions

An ICJ judge must have recognised competence in: ? (W5.B)

1. Both pil and national law 2. art 2 ICJ - who possess the qualifications required in their respective countries for appointment to the highest judicial offices (so not appointed, but you merely have to possess these qualifications) - OR are jurisconsults of recognized competence in international law - 'OR' seems to indicate that you need either 3. When ICJ started IL was still very new, and it is quoted as ''it can always be learned up'' (quote from someone negotiating the ICJ statute) it was somehow marginal in its development. Basically saying it is fine you can pick it up along the way. This is an important consideration.

OCDs: can they be withdrawed? (W3.A)

1. Can OCDs be withdrawn? - Yes in the peru case this occurred (check which exact case) 2. When do OCDs produce their effect? - Nicaragua; US took away their OCD to make sure - Cameroon v. Nigeria: Nigeria withdraw their OCD. 3. Is there a different as to the production of effects if an OCD is being adopted and if terminated? - Nicaragua; - Cameroon v. Nigeria; - The court says that when you submit an OCD it is immediatley into force. - Withdraw needs to pass a reasonable amount of time, not specified but +/- 6 months (is decided on ad-hoc basis) you want to give the opportunity for states to ensure that states do not act in bad faith. - Modification is a slippery slope since does this immediately come into force, the ICJ would there examine on the ad-hoc

Types of OCDs (W3.A)

1. Can take any shape that a state ones 2. Belgian Formula - Indian OCD - What are the relevant "facts"? - Belgian formula kind focuses on the facts from which the dispute arrises, so it states that when deciding whether something is a dispute you can say the facts on which that is based cannot come from period x,y,z. - how you interpret facts is discussed in the: Phosphates in Morocco; Electricty Company, only key facts should be taken in to account, so minor 'less relevant' facts are taken into account here. 3. OCDs referring to domestic jurisdiction - reference to internal law - OCDs of India, Botswana • Interhandel; Right of Passage; Aegean Sea Continental Shelf case 4. Vandenberg Reservation - OCDs of India, US - no disputes from multilateral treaties unless all parties are party to the dispute - since a certain interpretation can affect the other non-parties 5. Commonwealth reservations - Indian OCD - you do not want friction between states 6. maritime reservations - Indian OCD 7. "other disputes" reservations - Indian OCD 8. Armed forces reservations - Indian OCD 9. Connally reservation: separate flashcard for this

Examples of mandates for COI's by UNSC / UNHRC (W2.A)

1. Central African Republic - had a double commission, is this useful? these two commissions at least no overlapping purposes 2. Korea - The mandate was formulated that the commission would investigate the ''known'' violations. - awareness type of functions - also to ensure full accountability 3. Israeli attack - again this presumption - it saw that this would be problematic, we will aim to set out the facts and then out of those facts that certain violations took place (step by step approach)

Quiz questions (W5.A)

1. Consultation is compulsory in the WTO system according to art. 1 and art. 4 DSU, persuant to consultation you can take other measures. - Shall or must indicates an obligation - All proceedings are confidential according to art. 14 DSU 2. Consultation is a continuing process during all stages of dispute settlement in the WTO. - You can go back to consultations during the pannel. If you do so the panel is suspended and you go back. - They want to have swift procedure, with a lot of procedures, the panel wants to have more clearity and thus in the case of going back to consultation and hopes they will settle it in this manner. 3. The DSU favours states to go back to consultation. - This is because the main goal of the DSU is to come to a mutually agreed solution which is mentioned in art. 3 DSU. 4. Once the consultations phase is initiated, there is not necessarily an obligation upon member States to request panel proceedings but only at request: - art. 6 DSU indicates only IF the indicating party requests. - art. 3(7) DSU - art. 4(7) DSU: MAY request the establishment of a panel, thus no obligation. 5. Deliberations of the WTO Panels and proceedings before the WTO Appellate Body are confidential, art. 14 DSU for the panels and art. 17(10) DSU for appelate body 6. According to the DSU, unilateral sanctions are not allowed - art. 3(6-7). 7. Way far more WTO disputes have been settled by using panel proceedings rather than consultation? - A system that favours consultation will more likely have more disputes settled in consultation. - An example for question 7: https://www.wto.org/english/tratop_e/dispu_e/cases_e/ds526_e.htm this is a dispute regarding measures with trade related aspects. The consultation occurred but apparently failed since a panel was established. The panel was concluded in 2018 so what happened to this dispute? There is a delay to due a death, however the long period after this is only justified by this. The deadlines are very serious within the DSU thus essentially delays are not really accepted. 8. The WTO dispute settlement system is exclusive - exclusive means compulsory. You have a dispute regarding a covered dispute are you free to go to settle this at the ICJ or do you have to use the DSU. - it is exhaustive and exclusive. If you have 2 member states governed by the DSU then you have to forcefully admit to the means mentioned in the DSU.

Proprio Motu and jurisdiction and admissibility (W3.A)

1. Court deals with both issues - jurisdiction and admissibility - togehter, but it is important make a difference. 2. Jurisdiction: can discover other grounds for lack of jurisdiction if other states have at least one complaint 3. Admissibility: - general tendency is to not examine this proprio motu

Differences between Arts. 62 & 63 ICJ Statute (W3.B)

1. Crucial difference: art. 62 you can intervene if you can prove you have a legal itnerest but you are not bound by the judgment. art. 63, the registrar has an obligation to inform you as a state (through invitation, although most states do not choose to intervene) of a convention that is being , you have the right to intervene if you want to and you are bound by the judgment. If you intervene under 63 this is more serious therefore. 2. Mentioned in Wimbledon, p. 12

Provisional Measures: danger and damage (W3.B)

1. Danger? - Foreseeable; ECJ, Germany v. Council - no PM for hypothetical situations - financial loss is not enough since you will receive compensation 2. Damage? - "Irreparable prejudice"; Nuclear Tests; Tehran; Genocide -Can this threshold be reduced? Yes due to the nature of the rights with situations of peace or armed conflict because humans are involved there such as in the ;Avena; LaGrand cases - Prevention of aggravation 3. Prevention of Aggravation - Nicaragua; Frontier Dispute; Cameroon v. Nigeria. 4. Judgment should not be anticipated - Case on Arbitral Award of 31 July 1989

Dispute settlement: diplomatic means v. adjudication (W1.A)

1. Diplomatic means - Negotiation - Mediation - Inquiry - Conciliation 2. Adjudication: third-party adjudication either through: - Arbitration - International courts

Example of conciliation: CERD: Qatar v. UAE - introduction

1. Diplomatic row 2. Indiscriminate expulsion of (all) Qatari nationals 3. Student access to education 4. Disruption of family life 5. Job loss for workers

Fact finding/ Inquiry - characteristics (W2.A)

1. Dispute settlement (and prevention?) - through a third party; 2. 'Fact-finding commissions' (or experts) (independent mostly; cf. MH17) 3. Established by parties to dispute OR by competent organizations 4. Works with clear mandate (time, space, incident, parties) 5. But mandates often 'multi-purpose' now in terms of objectives... 6. Facts, but also the law (accountability, compliance...) 7. Findings in one or more subsequent report(s) 8. Confidential or open procedures/outcomes 9. Basis for further action of parties to solve dispute: negotiation, arbitration, judicical procedures, (re)conciliation, etc.

Reasoned decisions (W2.B)

1. Early forms of reasoning e.g by a king a certain argument was unnecessary. 2. Why is it that parties want to have reasoning? - first of all due to a having a basis in law - secondly mostly due to legitimacy otherwise the parties will not abide to the decision - legitimacy used to be with the king, thats it.

Example of conciliation: East Timor and Australia - shattering of the dispute into 3 (W1.B)

1. Eventually dispute blew up and ended in 3 different disputes: a) (Compulsory) conciliation at PCA ... based on UNCLOS - Settlement of the maritime boundary dispute b) (Compulsory) arbitration at PCA ...under Timor Sea Treaty - Binding nature of Timor Sea Treaty / CMATS / c) (Compulsory) adjudication at ICJ ...under Art. 36(2) Statute - Seizure and detention of documents and data 2. A compromissiory clause or the OCD would be a way in for Timor to solve the dispute, however Australia changed its OCD to excluding the topics of dispute in 2002 3. East Timor tried to open up the argument by combining the Timor Sea Treaty (art. 23) and Treaty on Maritime Agreements (art. 11) 4. A third option was necessary to ensure compulsory concilliation, through art. 281 UNCLOS! 5. Very succesful procedure

Common interest disputes: introduction (W4.B)

1. Examples - Climate - IHRL - Space - Internet - Area - Non proliferation - Wildlife - Intellectual property law - Criminal law with regards to genocide 2. Main issue is: are you an injured state or not? - art. 42 ILC; injured state - art. 48 ILC; by another state then the injured 3. Increasing number of cases regarding common disputes

Art. 298 (W4.A)

1. Exception where it concerns marine military activities 2. Look clearly at this exception

Grounds of admissibility (W3.A)

1. Exhaustion of domestic remedies - Interhandel; Barcelona Traction; Elettronica Sicula (ELSI) 2. Nationality - Nottebohm 3. Exhaustion of domestic remedies - Is there an obligation to negotiate? No there is good faith however. If however an obligation to negotiate exists in the compromissory clause, is this an obligation conduct and not one of result (obligation of result would put too much stress on the parties) see Arrest Warrant; Avena; La Grand 4. Negotiations and obligations: - Is there an obligation to negotiate under CIL? → Certain German Interests in Upper Silesia; Oil Platforms; Cameroon v. Nigeria - If an obligation to negotiate exists in a Compromissory Clause what is the nature of the obligation? (obligation of conduct or obligation of result)? → Mavrommatis Palestine Concessions; SW Africa cases (Pr.Obj); Nicaragua; Oil Platforms - When do negotiations conclude? → Armed Actions (Nicaragua v. Honduras) (1988) • 80. For the purposes of Article IV of the Pact, no formal act is necessarv before a pacific procedure can be said to be "concluded". The procedure in question does not have to have failed definitively before a new procedure can be commenced. It is sufficient if, at the date on which a new procedure is commenced, the initial procedure has come to a standstill in such circumstances that there appears to be no prospect of its being continued or resumed. 5. Delay - Ambatielos; Nauru; La Grand; Avena - whether you have taken too much time 6. Abus de droit - Nauru; Cameroon v. Nigeria Improper - whether you are abusing the particular situation 7. Representation - Genocide case (1993 Order); Cameroon v. Nigeria - is not the proper representative 8. Waiver - Use of Force cases; Nauru - whether you have waived your grounds to go to the PCIJ 9. Locus standi - See e.g. ARSIWA Art. 48(2)(b) & Commentary - ''Any State entitled to invoke responsibility under paragraph 1 may claim from the responsible State:performance of the obligation of reparation in accordance with the preceding articles, in the interest of the injured State or of the beneficiaries of the obligation breached.''

Fact-finding within the UN (W2.A)

1. Fact-finding Commissions of Inquiry (3 or 5) 2. Fact-finding independent experts (single) 3. As mandated by the: - UN General Assembly (on general matters under UN Charter) - Security Council (peace & security; IHL; human rights) - UN Secretary General (UN matters / facilities) - UN Human Rights Council (human rights; IHL) a) Commissions of Inquiry of the HRC b) UN Special Rapporteurs of the HRC --> Thematic mandates --> Country mandates

Shift from power oriented system to rule based system (W5.A)

1. From GAT to DSU 2. What changed? - no consensus anymore - appelate body and appelate review is new - standard terms of reference is new 3. The DSU is becoming what the member states want it to become - if member states feel that they want a rule based system they do it. Everything is subject to the dispute settlement body which is a political body. - This quote from Ramirez is very significant 4. that WTO has depoliticized, compared to GATT? - always a strong politicised body that approves. - member states still retain control and the disputes are still politicised, not like with GATT but it is still there.

Exercise regarding the crisis of the AB (W5.A)

1. How the system seems to adjust to the crisis and taking advantage of the possiblities within the DSU - USA sees it as a opportunity to reform the system - you can take a panel report and decide not to appeal - or you can decide to not take it to the court. - with regards to implementation you first need to invoke art. 21 and then move on to art. 25 2. Some states kind of backlash towards to the so called rules based system of the WTO and this has implications. The solutions are not legal, there are huge issues with this, the AB is a tip of the iceberg. The solutions are political. 3. You do not need to know substantive trade related issues, but moreover what we discussed today. Read the text of the DSU carefully and the provisions in the PPP.

Difference between PCIJ and the ICJ (W3.A)

1. ICJ was created by the charter: if you are a member of the charter you immediately fall under ICJ 2. PCIJ was created by the League of Nations: PCIJ you are not automatically a member if you are bound by the charter. 3. PCIJ is somewhat of a 'presessor' however they are two different international organisations

MH17 example further elaborated on (W2.A)

1. Immediately a inquiry was started to get to the bottom of this especially the role of the UN was limited due to Russia's reluctance. 2. Two main questions - Who is criminally individually responsibly? - What was the role of Russia for supplying the missile? 3. Moscow leaded misinformation campaign, the other countries did not use the information from Russia, thus a lot of discussion surrounding this. - In anyway lot of missing information, this is similar to the missing information that was ignored in the number of different clips Hesselman made us watch such as the Arab man. 4. Very unclear how Australia or Netherlands could make Russia as a State responsible. 5. Art. 26 of the Convention on Civil Aviation - ''the state in which the accident occurs will institute an inquiry into the circumstances of the accident, in accordance, so far as its laws permit, with the procedure which may be recommended by the ICAO'' - ''opportunity to appoint observers to be present at the inquiry, and the State holding the inquiry shall communicate the report and the findings'' - However annex 13 includes: some rights and entitlements. 6. Ukraine stated we could use some help and asked for a lot of experts and investigators. Ukraine gave the control over the fact finding to the NL which is quite remarkable. 7. Different layers of investigation.

To which States does Art. 36(5) apply? (W3.A)

1. Included to ensure continuity between PCIJ and ICJ 2. If you concluded jurisdiction of the PCIJ this would continue on into the ICJ 3. Aerial Incident (Israel v. Bulgaria) - Whether 36(5) actually applied - The court came to the conclusion when 36(5) refers to parties of the statute, the court refers to only the original parties that were parties from the start. - They looked at the prepatory works, and here it shows that they wanted continuity, but this could only benefit the states that were parties from the beginning. 4. Temple of Preah Vihear (Cambodia v. Thailand) - I have the honour to inform you that by a declaration dated September 20, 1929, His Majesty's Government had accepted the compulsory jurisdiction of the Permanent Court of International Justice in conformity with Article 36, paragraph 2, of the Statute for a period of ten years and on condition of reciprocity. That declaration has been renewed on May 3, 1940, for another period of ten years. - In accordance with the provisions of Article 36, paragraph 4, of the Statute of the International Court of Justice, I have now the honour to inform you that His Majesty's Government hereby renew the declaration above mentioned for a further period of ten years as from May 3, 1950, with the limits and subject to the same conditions and reservations as set forth in the first declaration of Sept. 20, 1929 - Following aerial incidents and Thailand states that they are not an original member. The ICJ says not an original UN member, but you made the declaration in 1950 and here there is reference to the PCIJ and renewed it. Your intention is to be bound by the ICJ, the reference to the PCIJ declaration is a mistake but this does not matter. - Not relevant under art. 36(5) is not applicable, there is a declaration under art. 36(2)! 4. It is a consistent approach, you reference to the PCIJ is not relevant your true aim is to give jurisdiction to the ICJ.

PCJA: introduction (W2.B)

1. Is it a court? - its a secretariat that helps to assist on the establisment of arbitration of disputes - it can be seen as a infrastructure; it gives lot of options 2. What type of inter-state is the PCA involved with? - what are they often involved with investments/law of the sea disputes especially - more private international law 3. Cases administered in 2019 concerned: - oil and gas - mining and quarrying - construction - real estate - financial and insurance - electricity and power - telecommunications - transportation and storage 4. PCJA is becoming increasingly relevant and more used over time

Proprio Motu Examination & Registration (W3.A)

1. Is the ICJ on its own allowed to examine proprio motu objections to its own jurisdiction? - Can the ICJ bring about these objections before states have, so e,g state A comes with a objection ratione materia and ICJ comes with ratione temporis? - The court has done so, but there is a limit here. The respondent state at least needs to have raised one objection. This is necessary since if there are no objections then the states have silently already accepted the jurisdiction of the ICJ. - This happened in the Teheran Hostages; Use of Force (Serbia & Montenegro v. Belgium) 2. Which treaties can the Court take into account? - needs to be in force - parties can specify - art. 102(2) of the Charter, every treaty needs to be registered and published. If a treaty in theory is not registered then you cannot invoke it - The ICJ has kind of disregerdad this in a number of cases where the court has taken into account treaties. Consider cases where a document is actually disputed whether something is a treaty (Bahrain v. Qatar). - In order to be on the safe side, what Cameroon did was sending such an ''unsure'' treaty to just before going to the ICJ is send it to the UN secteriat.

Steps taken in Norwegian loans case (W3.A)

1. Is the OCD admissible? if it is invalid... 2. What are the effects of the impermissible OCD? 3. The intention of the state is crucial.

How do these common interest come into play within SID (W4.B)

1. Is there indeed a development in the area of common interest with regards to SID - Conclude for 4 states that it is increasingly relevant to use adjudication for common interest SID and moreover with regards to IHL 2. How narrow or broad are the options to go to court with these issues?

The International Humanitarian Fact-Finding Commission (W2.A)

1. It was never really used, up until an incident occurred in Kunduz, since a hospital got attacked and the question was whether this was a violation of IHL or a war crime but specifically how did this happen? 2. The US did not want to file any criminal charges since it was simply a human error etc. The hospital found this incredibly unsatisfactionary. 3. Can a charity start such an inquiry? - - No, since art. 90(1) AP1 Geneva says this cannot happen - Who made the request? since a party to the conflict needs to happen, since it will surely not be the US or Afghanistan - art. 90(5) AP1 Geneva is also relevant --> check dit morgen nog ff!! 4. This attempt to call in the IHFFC failed, however it did start to wake the sleeping beauty

Provisional Measures the requirements (W3.B)

1. Jurisdiction - ordinarily cases take very long, but here jurisdiction needs to be established quickly - Originally negatively, as long as it was not absolutely clear that the court did not have jurisdiction the it could proceed → Fisheries; Anglo-Iranian - Shift to modern standard: now it is more prima facie so the threshold is a little bit higher → Nuclear Tests; LaGrand - PM do nto prejudice the final judgment 2. Request - By whom: anyone of the parties, but most often it will be the applicants since that party is in danger 3. Proprio Motu? - this is debatable - Art. 25(1) & (2) Rules IACtHR: allows it - 290(1) UNCLOS: only the parties can do it - Art. 41 ICJ Statute: does not say anything + Rules of Court 73(1): upon request of states & 75(1): ICJ can examine proprio motu PM - approach is different looking at different courts 4. Urgency? - not explicitly mentioned but in general agreed that states should provide some information - Great Belt; Cameroon v. Nigeria; Libya/Malta 5. Content? - PM are not an interim judgment, they are not their to substitute a final judgment. - Chorzow Factory; Upper Silesia; Nuclear Tests - non ultra petita rule: you cannot give states more in PM is that it is allowed to deviate from the request of PM, or even suggest even new ones such as in Cameroon v. Nigeria; Gambia v. Myanmar - ICJ can come up with tweaked or competely new PM - Limits on content: have to be related to case and prevent irreparable damage 6. Effect? - That PM are binding is decided in the La Grand case they looked at language, charter, other articles, object and purpose and even the prepatory works. - Art. 41 ICJ Statute - Art. 94(1) UN Charter

Fact finding: Recent examples (W2.A)

1. MH17 downing in Ukraine in 2015 - ICAO Inquiry by the Dutch Safety Board - Joint Investigation Team (JIT - NL, Australia, Belgium, Ukraine, Malaysia) - No United Nations inquiry - Role of Russia? Role of ICAO? - Criminal Investigation v. State Responsibility of Russia (NB: the pictures of news paper articles shown during class have been removed due copy right issues with republication) 2. First efforts to activitate the International Humanitarian Fact-Finding Commission (IHFFC a.k.a sleeping beauty) under AP I Geneva Convention

Why is it important to discuss the expertise of judges and arbitrators? (W5.B)

1. Matter in terms of legitimacy of judgements and disputes in general 2. Do judges from different state have a different view? Yes expertise can result in different reasoning the outcome, reasoning also the quality of the judgment and also the outcome of the dispute. 3. This session will unpack why it is important

Prima facie jurisdiction regarding provisional measures (W3.B)

1. Myanmar v. Gambia both are parties to the genocide convention 2. However art 8 does not apply to us due to Myanmars reservation, but looking at article 9 is specifically focused on the ICJ. 3. ICJ said art. 8 could include the ICJ however other UN organs can still act and perform provisional measures. 4. Art 8 is reserved but therefore art 9 is the gateway to still combat Myanmar with provisional measures. 5. The court went into discussion a little bit so not necessarily a clearcut straightaway answer and this is what prima facie entails namely: ''based on the first impression; accepted as correct until proved otherwise''

Relationship between negotiation & adjudication (W1.A)

1. Negotiation - voluntary or not - maximum control - all aspects of a situation 2. Adjudication - minimum control - situation needs to be "reduced" to a dispute/disputes

Example of conciliation: East Timor and Australia (W1.B)

1. Not only the maritime boundary but also about natural resources 2. East timor gained independence from Indonesia, and the new state has to get new relations with Australia. Previous agreements were only between Australia and Indonesia. 3. In 2012 negotiations Australia spied on East-Timor which led to a result not in favour of East Timor and for now the treaty is invalid 4. East timor tried to find a way to make Australia cooperate.

OCDs vs. Compromissory Clauses (W3.A)

1. OCD is unilateral and Compromissory clauses is within a treaty 2. Article 36 - 1948 Pact of Bogota (American Treaty on Pacific Settlement), is this an OCD or not? - it is not a unilareral clause since it mentions high contracting parties - it is a provision of a treaty - however they also refer to art. 36(2) which refers to OCD - The answer is it can be both. - The ICJ will only answer relevant questions and here it made no difference whether it was an OCD and a Compromissory clause.

Article 79 Rules of ICJ Statute (W3.A)

1. Objection to Jurisdiction → objections connected to the consent of the State - Jurisdiction is focused on consent of the state, treaties, conventions, OCDs 2. Objection to Admissibility → all other issues - Based on general international law (e.g. exhaustion of domestic remedies) - Referral of settlement of dispute to arbitration o0r other form of binding peaceful settlement 3. What if the referral to a different dispute settlement procedure is in the OCD?

Intervention: introduction and legal basis (W3.B)

1. Provided in 2 articles - art. 62 ICJ statute, the french version has a difference regarding the gravity of how important something needs to be. The English version is broader then the French version which is stricter. - art. 63 ICJ statute 2. If you were a party what affect would intervention have on you? - more proceedings, meetings new judges etc - takes more time

Purpose of intervention (W3.B)

1. Purpose of intervention: - not vague →Tunisia/Libya [13] - not new dispute → Libya/Malta - If you want to intervene, you need to show that you have an interest of a legal nature, but not to the degree that you have a right that is definetely affected since you become a party to the dispute. If you are too vague the is no proof of the legal interest. 2. Pulau Ligitan (Philippines asked to intervene on multiple grounds) - Preserve its historical rights - Inform the Court of the rights involved - Help ICJ to appreciate its role in conflict prevention & peaceful settlement 3. Actio popularis? - Railway Traffic - court does not like this does not see it as the purpose of intervention

South China sea case (W4.B)

1. Regarding the jurisdiction of the arbitral court, and why could take the abitration take place?? - application of the UNCLOS, art. 2(8)(7) if you simply do not give an answer it would be to atribation by default - 2(8)(3) states that you first have to try amicable settlement - arbitral court said it was not about historic titles but about historical rights 2. Why did were the arguments that China raised why it does not proceed? - China made a lot of reservations, also says that it therefore excludes disputes under 98 UNCLOS - Under these reservations China clearly stated that they will deal with these specific issues under a different declaration and will try to negotiate like that - Most important limitation states that boundary limitation is excluded, with that declaration that historic titles is also excluded 3. General relevance of this case - China resisted this and that they will ignore the outcome

OCDs: reservations, extent of reciprocity and time clauses (W3.A)

1. Reservations to OCDs → are they allowed? - they are allowed since states can do what they want 2.What is the extent of reciprocity? - Nicaragua case; Interhandel; right of Passage Time Clauses in OCDs - reciprocity functions on the substantive issues not on the procedural ones/formal rules e.g time limits when it can be modified etc 3. Can they be of a fixed time? - (Nauru; Surinam) - yes 4. Can they apply retroactively? - (Portugal; Surinam) - yes, it is based on intention

Provisional Measures: introduction (W3.B)

1. Rule 39 ECtHR 2. Art. 41 ICJ Statute - PM have a discretionary character, the court has a final say to decide whether they should be ordered - the main idea is that the court has the obligation to protect the rights envisaged. - This rationale explained in the Fisheries case [21] 3. Very popular in the 90s

Conclusions (W4.A)

1. SID ITLOS: especially its compulsory often binding involvement. 2. Reasons ITLOS has been set up is that many states had lost faith in ICJ 3. Very important to note how states can claim exceptions under section 3.

OCD: Connally reservation (W3.A)

1. Self-judging/automatic reservation 2. OCD of Sudan 3. Norwegian fisheries case, France v. Norway - This was about loans - France can judge what fall within their domestic jurisdiction, thus referral to internal law 4. What are the issues of the Connally reservation? - this reservation is against the equality of arms - Norway can use the reservations that France made due to equality of arms. - Reciprocity can use this reservation therefore - Both the main judgement and the separate opinions had different views. - The judge Lauterpacht: that he felt that the French declaration was invalid, because it went against other provisions of Charter and ICJ statute. IF this part should be deleted what is this effect of this invalidity on the ICJ statute. Lauterpacht stated that it should be examined how important this reservation was, if it was important then declaration is removed, if not important then only the reservation is removed. Concluded that France was OCD was removed thus no overlap. Revolutionary view in the 50s.

Breakdown of SID: introduction (W1.A)

1. Settlement: How? - Art. 2(3) Charter: 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 33(1) Charter: 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. 2. International: What is international? - domestic? - transnational? 3. Dispute - 'a disagreement on a point of law or fact, a conflict of legal views or of interests' between parties' --> The focus of this course will be on inter-state disputes

The role of the court or arbitral tribunal in a case (W4.B)

1. Should a court use the law to assist the parties to make the parties come to an agreement, interpret the law to do so in the best manner? - This is closer to what the parties want - In very political cases this is more favourable - Court sometimes even find juridictional blockades to prevent jurisdiction if it is very a political case - If the solution might be aggravating the SID for UNCLOS they might give a vaguer answer 2. Or Should a court put presedence on interpeting the law as such for the dispute at hand, and after having applied the law only then look at the dispute? 3. The dividing line is very thin - Is determining whether it is an island or no, should this belong to delimitation? - This is a question that is quite tricky 4. No answer to this question

Non-compliance procedures (W4.B)

1. Some of the common interest problems can be very complex, and who wins and who loses is not the complete answer 2. Courts can only play a limited role in that 3. Climate change, how can we do something against it, there is no simple legal answer to see whether one has fulfilled its obligations 4. Environment prodedures the community of parties would opose one of the parties who have opposed something mentioned in the treaty. - E.g ozone treaty realised that SID-clause, we have to do more, they created bodies that investigate whether parties are not complying. But how far can they go in scrutinising, and add consequences to that. Only suggestions are created for other states 5. HR issues are very seldomnly brought before an international court. There are various options to create independent bodies to make other parties comply, and where states can make complaints against other states. 6. No time to discuss these non-compliance procedures but this is used very much in the environmental field. Non-proliferation also had a organ who inspects whether everything is in order. 7. Environmental dispute settlement is very much with UNCLOS example in mind, giving the parties a choice, compulsory concilliation. The big difference is to make arbitration and the judgement compulsory and binding. In the Kyoto protocol with very specific obligations, the no compliance procedure under this one can therefore be punitive. In a non-compliance procedure organ is also tryign to find a suitable solution by suggesting procedural regimes e.g. Especially in environmental compliance there is more assistance (friendlier) not necessarily winning or losing. Paris has a super weak non-compliance system, it only looks at whether states are using certain procedures, it is much more due dilligence.

Example on conciliation: Order of ICJ on admissibility, 8 November 2019, in the case of Ukraine v. Russia (W1.B)

1. State would have to try negotiation, and if it does not work they have to further negotiation. - Very odd that it needs to happen again 2. How different is negotiation compared to concilliation? - No CERD situation like this before. 3. If you go from negotiation, then concilliation and then ICJ is a very slow system.

What are the rules we refer to with regards to ICJ: Dispute Settlement and jurisdiction and admissibility? (W3.A)

1. The ICJ statute, this is not a treaty! - if something is within the UN treaty series weirdly does not make it a treaty. Other example of this is OCD 2. You always first need to find the proper legal basis in order to determine whether something is binding. 3. More precisely art. 92 of the Charter is the legal basis of the jurisdiction of the ICJ. 4. Being a member to the UN charter makes you automatically bound to the ICJ statute however this still only gives you the option to make use of the court. 3. Art. 36 of the ICJ statute is the basis

What are the main components of the Law of the Sea solving disputes and why is this system so unique? (W4.A)

1. The fact that there is flexibility to choose a method do can go to the arbitration 2. Before UNCLOS it was very hard 3. Law of the Sea is not only for states but also international organisations such as the EU, 4. As the basic rule: - if the state cannot settle the dispute itself there is always recourse to a binding dispute settlement, there is flexibility for a lot of possibilities, but it is binding. - no reservations allowed: if we want to achieve this then we will have to have a very strong dispute settlement system.

What is interstate-arbitration? (W2.B)

1. There needs to be dispute between 2 or more states and they need to go to a third party involved, it can be based on international law or it can be decided otherwise. 2. Chameleon-like, so ever changing and everlasting, successful mode of settlement. It becomes increasingly relevant.

Fact finding of the ICC (W2.A)

1. They are leading to accountability at the ICC and ICJ 2. ICC Myanmar, not a party to the ICC statute, however Bangladesh is a member. Points to Genocide. 3. Gambia against Myanmar on genocide from the erga omnes angle. The findings really point towards clearcut genocide.

Why the US is blocking the appelate bodies (W5.A)

1. They are upset on how the AB is deciding certain disputes. 2. But how did the MPIA Parties justify addition of certain phrases that are not necessarily in line with the provisions of the DSU (as USA claimed)..And if so can they add so? - yes it needs to be consisten with the DSU otherwise you have a problem

Exercise: what are the specific issues and relevant law? (W4.A)

1. They could negotiation or diplomatic means, but since they want a binding SID, according to art. 2 they first have to exchange their views. If they do not reach an agreement, they will move to part 9. Ended up going there since the parties were not very much agreeing. 2. Art. 283 states there is an obligation to exchange views. If under negotiation or other peaceful dispute settlement nothing is achieved then they have to recourse to a binding dispute settlement under art. 237. 3. Also a question whether there is a dispute? and where can they go Was there excessive force use and if so was this allowed? Shall it apply not incompatible with this convention? - Can a tribunal deal with the way force has been used. is that within the jurisdiction of the court? If in that case the court is allowed to make a determination whether the use of force was allowed. The law of the sea tribunal can go sometimes outside of the scope of specifically. 4. Where can we turn to? Various procedures are open - art. 287: where we have the choice of procedure - if the arbitral tribunal still needs to be established are there other procedures are possible to release the ship and crew of ship B? Yes under provisional measures. - Many cases there is a possibility to go to a tribunal but often provisional measures can be taken or prompt release if necessary. 5. What if state A would not have agreed on a fishing conflict? - art. 297(2) 6. Art. 288 establishes jurisdiction of UNCLOS 6. Is it possible for dispute settlement under UNCLOS to settle something that has to do with the use of force? - Yes the tribunal (as we know now) can accommodate a case that has to do with the use of force too (see applicable law art 293 à all the rules that are not in contravention with the Convention)

Key characteristics 'conciliation (W1.B)

1. Third party = independent, neutral (expert) 'conciliation commission' (1-5 members); Concilliator take a very active role 2. Agreed by parties themselves (States and/or other actors); 3. For legal and non-legal disputes (assessment of facts and law); 4. Outcome = proposals in non-binding report; Parties free to accept or reject this, or start new negotiations; conciliator can come up with final proposal after which the conciliation ends. 5. Often confidential - to avoid prejudice to later legally binding settlement; 6. 'ad hoc' or permanent commissions 7. Procedura rules need to be decided for each new concilliation procedure. 8. Voluntarily / compulsory / 'obligation to conciliate' - cf: UNCLOS: EastTimor & Australia Concilation - compulsory --> 3 PALCAPO

The main goal of the WTO DSU is? (W5.A)

1. To find a mutually agreed solution (see Arts 3(6), 3(7), 11) - The panel has an obligation to regularly consult the member states and give them the opportunity to come up with an equally mutually effective solution 2. So #1 is above and then in order to do so: - to provide security & predictability (Art 3(2)) - to maintain balance between rights & obligations of member States (Art 3(2),(3)) 3. These goals also directly determine the remedies: - this maitenance of the balance also defines the sytem of available remedies under the DSU. No unilateral action is allowed and there are very specific remedies allowed (the specific remedies will be discussed furthermore)

Generally ICJ or arbitrary tribunal: advantages, disadvantages (W2.B)

1. Tribunal advantages - more control - you get an arbitrator (if you appoint an arbitrator will not necessarily vote for your party's case) - expensive since you have to pay the arbitrators and the whole procedure - legally speaking both options are the same parties simply comply, no advantage regarding the reward in any option - option to have a confidentiality clause 2. ICJ advantages - takes long, often a few years - is the cheaper option - legally speaking both options are the same parties simply comply, no advantage regarding the reward in any option - no confidentiality clause with the ICJ

Example of conciliation: East Timor and Australia - Commission conclusions (W1.B)

1. UNCLOS itself refers to settlement based on law, in order to achieve equitable solution (PCA, para. 53) 2. Equitable solution beyond narrow (legal) delimitation dispute 3. Commission assists the parties, not pronounces on law 'for its own sake' 4. Yet, Commission should not encourage to find a solution inconsistent with UNCLOS or other international law (para 69-70) 5. Not its function to make final legal determinations, but describes both initial legal positions as 'not entirely correct' 6. Parties need not to accept premises of law and fact as correct, when accepting the compromise (para 59) 7. Outcome is non-binding and does not prejudice later legal positions; document or views expressed cannot be used later 8. Not only was the Commission talking to the parties privately and they did this because they wanted parties to be frank instead of looking at the public and that it would become a theater. 9. Timor did not have any options, and they could not have known how succesfulit would be [290]

Facets of (purposefully?) uncoordinated & uneven development (W1.A)

1. Uneven judicialisation - regarding specific areas of int'l relations - regarding specific States/regions in the world (see chart of int'l courts) 2. Forum shopping + slicing a situation/dispute 3. We tend to forget that PIL & dispute settlement are conditioned to States & int'l affairs exemplified by current general backlash against int'l institutions/int'l law - e.g. current situation @ WTO dispute settlement - e.g. withdrawals from treaties e.g. renegotiation/redrafting of investment treaties - e.g. trends toward non-binding regulation & informality 4. Dance of international law: 2 steps back one step forward

Intervention: Timing (W3.B)

1. Until when can a State intervene? the cut of date is the date of the closure of written proceedings 2. Rule 81 of the Rules of Court - Libya/Malta (Italy's intervention) 2 days before• - Pulau Ligitan (Philippines intervention) 3. When does an intervening State have access to documents? - Rules 53 & 85 Rules of Court: when they make a meaningful contribution to the intervention

Looking forward and impact, Succesful attempts at CERD to force conciliation? (W1.B)

1. Use UNCLOS and concilliation that this might pose a lot of problems. 2. Similar to CERD, israel and palestine to use the CERD concilliation to solve a wide range of problems. 3. Cases under CteeERD (art. 11-13) - Qatar v. UAE - Qatar v. Saudi Arabia - Palestine v. Israel 4. Cases under ICJ (art. 22 CERD) - Georgia v. Ukraine - Russia v. Ukraine - Qatar v. UAE

Overview of inter-State & investor-State dispute settlement clauses in BITs (W2.B)

1. Very specific course 2. Home state and host state and somewhere in the middle in the investor - legal basis on the basis of a jurisdictional clause in an investor treaty, or on a bilateral treaty. - there is definetely the inter-state element here - specific dispute settlement to protect the investor 3. Investor brings a claim before an arbitral tribunal before the host state 4. Investment claims before the ICJ - Diallo case - Barcelona traction case

Conciliation: past & present (W1.B)

1. Very widely available, an also an old type of method to SID, however after 1945 not very popular. 2. 1890's-1945 - notable examples of inter-state conciliation - Since 1899: Permanent Court of Arbitration (PCA) - what types of cases for conciliation...? (read Merills!) 3. 1945 - Article 33 UN Charter + standard feature in treaties and other regimes, e.g. included in: - 1965 ICSID (and BITs) (international investment / State-Investor) - 1966 UNCITRAL (private commercial trade; 1980 Model Rules) - 1979/1994 GATT/WTO (good offices, mediation and consultation) - 1966 Convention on Racial Discrimination (CERD) - 1969 Vienna Convention on the Law of Treaties (VCLT) - 1982 UN Convention on Law of the Sea (UNCLOS) - 1991/1992 OSCE Valletta Mechanism / Permanent Court of C&A - 1992 UN Framework Convention on Climate Change (UNFCCC)

Barcelona traction case (W4.B)

1. Was initially about investors 2. Obligations erga omnes was raised due to diplomatic protection. 3. The ruling in the South West Africa case introduced this area of law. 4. UNCLOS was developed since they lost faith in the ICJ and wanted a new platform 5. Common values where used here and it was less positivistic and accepted obligations erga omnes as such.

Definition of a Dispute: technicalities (W3.A)

1. What acts/documents can the Court take into account in determining the existence of a dispute? - you can take any document that are available and the other state has access to - internal documents are thus forbidden since there should be equality of arm - remember that both states need to be aware of the dispute. 2. What is the critical date? - the date on which you submit the case to the court, the reason for this since you can use the document up until that point. Just prior to the submission of the case to the ICJ 3. Does it matter whether the dispute has political connotations? - Court does not care since every case is political, as long as it still contains legal issues as well - Teheran; Nicaragua; Armed Actions (Nicaragua vs. Honduras) 4. "Devoid of Purpose" Limit - Northern Cameroons case - while the case was submitted the situation was resolved.

Why a specialised set of PCA Optional Rules for disputes relating to environment and/or natural resources? (W2.B)

1. What is the need? 2. The types of disputes are very complex often many parties involved, also issues arising where technical difficulty arises 3. What is an environmental dispute? - The reason why there is no clear definetion is to possibly have a lot of discretion - However more probably there is no characterisation necessary as is mentioned in the preamble. This is also because if two parties simply state that this is a problem in front of the court this is the case before the PCJA. - An environmental dispute, you often have one party saying it is an environmental dispute, the other party will always say that the dispute is something else. - You dont get parties to agree what an environmental dispute is. 4. What is applicable law? - art. 33: some more specifity and clearity would have been better, since this article only says that the parties can have a lot of freedom of determining what law they want to use. 5. Expertise of the arbitrators? - art. 8(3) - who decides on the expertise of the arbitrators? Secretary-General will help the parties out, this list is not compulsory. The list is supposed to be helpful. 6. Experts - art 27 - PCJA tribunal can ask for a separate list of experts.

Seabed/area outside the national jurisdiction and other areas which UNCLOS is expanding its expertise on (W4.A)

1. Who owns these minerals in these parts? - all mankind: common heritage, we all own these minerals. - very important element in the negotiations in these disputes. - an enterprise exploits these minerals for all mankind especially for developing countries 2. UNCLOS therefore expanded the rules on: - it expanding the area where rich states can claim exploiting resources within their jurisdiction - on the common area that all mankind has right to these natural resources - environmental issues: how can we protect fish, who is entitled to protect fish? - research: in relation to energy and climate crisis - newest issue: how do we deal with islands states and coastal states that are dissapearing due to sealevels rising worldwide

Law of the Sea: introduction (W4.A)

1. Why did states accept this system: - 2. What type of disputes exist? - limitations - territorial disputes - peaceful passing - whether something is an island (is the question who owns the island a law of the sea question? no since once it is an island it becomes a question of jurisdiction) - natural resources/fisheries/oil and gas - navigation issues (Crimea and Russia) 3. How do most limitation issues are solved? - negotiations is most often used - if necessary concilliation - if a very common dispute on boundary lines/delimitation, where there was no an amicable settlemetn, the ICJ has built a constant jurisprudence with Law of the Sea disputes. States are expecting some stability and predictability.

Random question during lecture: if Kasjochi is tortured in Istanbul and NL is a party to the treaty on the prohibition on torture can they raise this case? (W4.B)

1. Yes, since a similar event also took place in the Zambia case 2. Many IHR law also has this broad erga omnes character 3. Inter-partes erga omnes obligations, clearly obligations from a treaty 4. It also reflects CIL.

Challenges specific challenges with UN fact finding commissions (W2.A)

1. appointment of commissionsers - independent, neutral, impartial, experts (bias? position taking? too many academics?) 2. formulation of mandates - biased/uneven mandates; multi-purpose mandates 3. cooperation of relevant 'parties'; no access to sites 4. national reports alongside international ones 5. acceptable procedures for evidence / fact-gathering 6. valuation of information / levels of proof 7. fact finding v. law application/interpretation by commissions - competing findings; respective roles of UNHRC, UNSC, SR's, ICC; (too) progressive interpretations? 8. dangers/safety within international conflict for the commissioners that can inhibit them from doing their work, government can say ''its too dangerous'', and this is sometimes true, sometimes not. 9. practical logistics of supporting commissioners in work - unpaid commissioners; practioners cannot take off time (unpaid)

Intervention: Legal interest v. Rights (W3.B)

1. art. 62 discusses 'may' so you do not need to 100% sure 2. Land, Island & Maritime Frontier Dispute, [61 & 76] - you really need to prove you have a legal interest - however if you prove that you have a right it will be affected, and you become a party to the dispute on the principle of 'monetary gold': if there is a party should become a party to the dispute or the ICJ should through out the case. 3. Tunisia/Libya, para. 13 4. Libya/Malta, Diss. Op of Judge Oda, para. 22 5. Catch-22 of Art. 62 IC Statute

South West Africa case (W4.B)

1. case the scope was very limited. 2. General jurisdiction followed from the specific mandate agreement but when it came to the substance the court retreated. The court said there is a league of nations and this league of nations should uphold these obligations. 3. Since the League of Nations was one of the first institutes where it did not really matter whether there was a individual state. You can draw a link to the SC, with e.g the use of force and obligations erga omnes or ius cogens 4. Very strictly positivistic rules, no morals.

Conclusions on the fact finding commissions ICC (W2.A)

1.... important mechanisms in the 'international toolbox of conflict prevention'? 2. ... important tools to combat imputiny? 3. ... 'signal concern without commitment'? 4. ... 'useful semi-legal tools for responding to an unfolding crisis'? 5 ... 'significant weapon in armoury of world order'? H

PCJA: arbitration rules (W2.B)

1.PCA Arbitration Rules - PCA Arbitration Rules 2012 2. PCA Optional Arbitration Rules - PCA Optional Rules for Arbitrating Disputes between Two States - PCA Optional Rules for Arbitrating Disputes between Two Parties of Which Only One Is a State - PCA Optional Rules for Arbitration Involving International Organizations and States - PCA Optional Rules for Arbitration between International Organizations and Private Parties - PCA Optional Rules for Arbitration of Disputes Relating to Natural Resources and the Environment - PCA Optional Rules for Arbitration of Disputes Relating to Outer Space Activities - Guidelines for Adapting the PCA Rules to Disputes Arising Under Multilateral Agreements and Multiparty Contracts 3. Other (non-PCA) sets of rules e.g. - UNCITRAL - UNCLOS - Energy Charter Treaty - The Hague Rules for Business and Human Rights Arbitration (very new) --> keeps on changing, remember the metaphor of the cameleon --> happened before 1945 and started after cold war. After WWII many parties might want to settle everything with diplomatic means. Judicial settlement also happened often with these international tribunals and institutions why

Art 3 DSU: introduction (W5.A)

A great article to go to, to understand the basic concept of the DSU

Interaction between fact-finding and international (legal) procedures...? (W2.A)

A proper international investigation can shine a new light as well as independent facts instead of a certain bias. IHFFC could fulfill this role.

WDSU: blended model (W5.A)

Definition of a blended model: diplomatic means and also adjudicational means. So when states have a specific clause at the ICJ, many times these type of clauses in case of a disagreement, state may go to the ICJ, this is straightforward. In contrast for other areas of law and issues of IL, states have set up whole systems of settling a dispute and often these are mixed, so different means to settle a dispute. Also in terms of adjudication is for example in ITLOS is very versatile.

Different methods and the role of the 3rd party is well as the outcome (W1.B)

Insert that picture here of slide 3 of the lecture 2

The WTO is succesful when? (W5.A)

It has fulfilled its goals mentioned in one of the previous slides

How is negotiation (increasingly?) relevant to adjudication? (W1.A)

Pre-adjudication 1. Exhaustion of negotiations may be a requirement for the ICJ to exercise its jurisdiction - compromissory clauses: e.g Armed Activities on the Territory of the Congo and 2006 Lockerbie case, 1998 - sometimes even substantive obligation of conduct (e.g. negotiate in good faith) - other clauses e.g. Art. 283(1) UNCLOS ('exchange of views') 2. Negotiations may also clarify specific legal points of disagreement During adjudication 1. Actively pursuing negotiations during judicial proceedings is not a legal obstacle to hearing a dispute (Aegean Self Continental Shelf case) 2. e.g. WTO DSU Post-adjudication 1. role of (absence of) diplomacy to (not) settle a dispute or (not) conform to a judgment e.g. Gabcikovo Nagymaros case, Nicaragua case

Example of conciliation: East Timor and Australia - Concilliation report (W1.B)

The commission did not want to push them away from their positions but really wanted to help these parties, this lead to quite informal language.

Definition of a dispute (W3.A)

This is the first thing the ICJ will examine. Marshall islands resulted in that there was a claim that there was no dispute. When is there a dispute? All of these point can be seen in Marshall Islands case [36-43 and 54] amongst additional cases that will be mentioned behind each point. 1. you need two or more parties - (Marshall case only) 2. needs to be a question regarding law - Classical definition of a dispute can be found here: "a disagreement on a point of law or fact, a conflict of legal views or of interests" between parties (Mavrommatis Palestine Concessions, Judgment No. 2, 1924, P.C.I.J., Series A, No. 2, p. 11). 3. there needs to be a conflict or disagreement - "'hold clearly opposite views concerning the question of the performance or nonperformance of certain' international obligations" (Alleged Violations of Sovereign Rights and Maritime Spaces in the Caribbean Sea (Nicaragua v. Colombia), Preliminary Objections, Judgment of 17 March 2016, [50], citing Interpretation of Peace Treaties with Bulgaria, Hungary and Romania, First Phase, Advisory Opinion, I.C.J. Reports 1950, p. 74). 4. they need to be aware of the dispute - (Marshall case only) 5. Needs to be opposition - "[i]t must be shown that the claim of one party is positively opposed by the other" (South West Africa (Ethiopia v. South Africa; Liberia v. South Africa), Preliminary Objections, Judgment, I.C.J. Reports 1962, p. 328). 7. Dispute of substance not of procedure - The Court's determination of the existence of a dispute is a matter of substance, and not a question of form or procedure (cf. Application of the International Convention on the Elimination of All Forms of Racial Discrimination (Georgia v. Russian Federation), Preliminary Objections, Judgment, I.C.J. Reports 2011 (I), p. 84, [30]; Interpretation of Judgments Nos. 7 and 8 (Factory at Chorzów) (Germany v. Poland), Judgment No. 11, 1927, P.C.I.J., Series A, No. 13, pp. 10-11). 8. Needs to be decided objectively whether it is a dispute. - Whether a dispute exists is a matter for objective determination by the Court which must turn on an examination of the facts (Alleged Violations of Sovereign Rights and Maritime Spaces in the Caribbean Sea (Nicaragua v. Colombia), Preliminary Objections, Judgment of 17 March 2016, para. 50; Interpretation of Peace Treaties; Nuclear Tests). 9. Immaterial whether the claim is asserted rightly or wrongly (East Timor case) 10. No need to respond to frivolous claims (Certain Property (Liechtenstein v. Germany, Declaration by Judge ad hoc Fleischauer)

Example of conciliation: CERD: Qatar v. UAE - shattering of the disputes in 2 different disputes

Two parallel proceedings on same/similar facts: 1. Conciliation at CteeERD (Arts. 11-13 CERD) - Article 11 initiated on 8 March 2018 - Article 12 initiated on 29 October 2018 - UAE disputes admissability of conciliation procedure 2. Adjudication at the ICJ (Art. 22 CERD) - Initiated on 11 June 2018 - UAE disputes jurisdiction of ICJ - UAE Interim Measures: asks to withdraw case at CteeERD!

Fact finding international law: history (W2.A)

Two specific eras of fact finding. 1. 1899 The Hague Peace Treaties 2. 1944 International Civil Aviation Convention: compulsory! < 1945 - Handful succesful bi-lateral inquiries - popular to include in treaties (READ MERILLS) >1945: Few actual inter-State inquiries, e.g. Letelier/Moffitt inquiry. Fact-finding mechanisms in multilateral regimes, i.e: - 1968 Nuclear Non-Proliferation Treaty (NPT) - 1992 Chemical Weapons Convention (CWC) (e.g. OPCW -UN inquiry into chemical weapons in Syria by UNSC) - World Bank Inspection Panels - 1977 AP I to Geneva Conventions IHFFC (cf. MSF / US - Kunduz bombing)

Art. 36 of the ICJ statute (W3.A)

What are the ways that jurisdiction can actually be established? - 3 main ones 1. compromis and compromissory clause - legal basis in art. 36(1) ICJ statute. Difference is compromis means an agreement that is signed for a specific dispute and for that specific dispute it is settled by ICJ. - if you see / instead of v. it is often a compromis - compromis needs to be created after the dispute has risen. - a compromissory clause is not for a specific agreement. The treaty UNCLOS e.g states if there is a dispute within the law of the sea the ICJ has jurisdiction - but both compromisory clause and compromis you always come through the means of a treaty. 2. Optional Clause Declaration provided in 36(2) of the ICJ statute. - Is not a treaty! it is a unilateral statement made by any of the parties to the ICJ statute either for all or some disputes. - However just that statement does not create jurisdiction. In order to establish jurisdiction the other party to the dispute should also have a OCD. There needs to be consent between these two states. - Reciprocity: State A says I exclude x,y,z and State B accepts jurisdiction on everything. Consent is a key element in dispute settlement. There for State B can use the exceptions of State A, so in essence you have the same OCD and you have equality of arms. Most states will mention reciprocity but if it is not explicitly mentioned it still always applies since the ICJ does not want bad faith. - India has an incredibly extensive OCD 3. Forum prorogatum - Does not exist in writing, but is established by the courts. - If through your behaviour you give consent to accept the jurisdiction of the courts - Congo v. France where this happened, Congo submitted the case to the ICJ and we know that France has not accepted the ICJ however we call on justice and fairness and France actually went along.

Jurisconsults (W5.B)

Who are these people? - academics who may or may not have actual experience.