LWN158: Public International Law

SEMINAR 9: ENFORCEMENT OF INTERNATIONAL LAW(ICJ & SECURITY COUNCIL)

From last time… States will be responsible for internationally wrongful acts (breaches of international law) which are attributable to them.

Internationally wrongful act results in obligation to make reparations.

How is this enforced? How does one state bring another state to account for wrongful acts?◦ Actions in the ICJ◦ Actions by the Security Council

International Court of Justice• Principal judicial organ of the United Nations (UN Charter art

92)

• Constituting documents are UN Charter & Statute of the ICJ (annexed to the Charter)

• Sits in The Hague (Statute art 22)

• Comprised of 15 judges (art 3) elected for 9 year terms on a rotational basis (art 13, five elected every three years). Elected by an absolute majority of both the Security Council and the General Assembly.

• Ad hoc judges: may be appointed by a state party which does not have a judge of its nationality already a member of the Court (art 31).

Jurisdiction• Statute Art 34: Only states may be parties in cases before

the Court – that is no individuals or companies may be parties.

• Statute art 35: Court is open to states parties to the Statute.

• Charter art 93: UN members are ipso facto parties to the ICJ Statute.

• Parties to the ICJ Statute are taken to accept the capacity of the court:• To determine its own competence (art 36(6))• To indicate provisional measures of protection (art 42)• To permit third-party intervention (art 62)

Jurisdiction cont/... But states are not subject themselves to the jurisdiction without consent – something more is required:1. States may submit a dispute by special agreement

(compromis)2. States may consent via treaty which specially provides

for ICJ’s jurisdiction to hear disputes in relevant matters3. States may declare in advance that they accept the ICJ’s

jurisdiction as compulsory (art 36(2).4. Declaration of compulsory jurisdiction can be

unconditional or on condition of reciprocity from other states

Jurisdiction cont/…• Declaration can be subject to reservations (eg Nicaragua

(Merits) case – where US had excluded jurisdiction in disputes arising under multilateral treaties; or Australia, where reservation has been entered objecting to jurisdiction over cases relating to delimitation of maritime boundaries).

• ICJ may refuse jurisdiction where dispute affects the interests of a third party which has not consented (East Timor case)◦ Won’t be refused where impact on third party is merely ‘affected’ by the

judgment (Certain Phosphate Lands in Nauru case)◦ Will be refused where the interests of a third state constitute the

subject matter of the case (Monetary Gold case)

Jurisdiction cont/...• Art 36: Jurisdiction comprises cases which the parties refer to it, as well as matters

specifically provided for in the UN Charter or other treaties.

• UN Charter art 96: General Assembly may request the ICJ to give an advisory opinion.

• Two areas of jurisdiction:

1. Contentious jurisdiction: disputes between states

2. Advisory jurisdiction: advisory opinions given following request from UN◦ Eg Legality on the Threat or Use of Nuclear Weapons (1995)◦ Legal Consequences of the Construction of a Wall in the Occupied Palestinian

Territory (2003)

• Local remedies rule applies

• Won’t hear cases where the dispute is not legal in nature (although the fact that it also has political aspects will not deny jurisdiction)

Nature of disputes in contentious cases

Art 36 (2): States can bring a claim against another state where dispute relates to:

a) 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.

• May need to establish standing:◦ Eg where wrongful act has been against a national of a state need to

establish nationality and exhaustion of local remedies (Articles on Diplomatic Protection apply).

Provisional measures in contentious cases• ICJ can order provisional measures which are

necessary to protect rights of either party (art 41)• Need to prove risk of irreparable injury before

measures will be granted• Where jurisdictional issues still to be settled, court will

issue provisional measures provided there is prima facie foundation for jurisdiction (Pulp Mills case)

• Success at provisional measures phase doesn’t always lead to success on the merits (eg Nuclear Tests case)

Effect of judgment in contentious cases• Judgment is binding and not subject to appeal –

although court may interpret its meaning (art 60) or may be revised upon discovery of new decisive fact (art 61).

• Only binding on the parties to the case (art 59) - no doctrine of precedent in international law.

• However, court tends to follow previous decisions◦ In acceptance of expertise of previous courts◦ To promote consistency & certainty

• Process develops the jurisprudence of international law

Enforcement of judgments in contentious cases• UN Charter Art 94: UN members undertake to comply

with decisions of the ICJ in any case to which they are a party.

• (2) if a state fails to perform obligations under a judgment, the other party may have recourse to the Security Council, which may make recommendations or decide upon measures to be taken to give effect to the judgment.

Advisory opinions• Statute art 65 (1) – may give advisory opinion in

response to request from any body authorised to make such a request.

• Determines the applicable international law and articulates relevant principles, and can provide guidance to UN agencies on carrying out their duties.

• Either General Assembly or Security Council may request an advisory opinion (Charter art 96)

Advisory Opinions cont/...• General Assembly may also authorise other UN

organs and agencies to request opinions (eg WHO, ECOSOC, IAEA).

• Can be utilised as a process of administrative review from dispute procedures under other treaties where those treaties provide for such review.

• Should not be used as a means to circumvent a state’s denial of consent to jurisdiction in a dispute.

Security Council• Two functions in dispute resolution:

◦ Pacific settlement of disputes (UN Charter chapter VI)◦ Maintenance of peace and security (chapter VII)

• Chapter VI, Art 33: ◦ parties to a dispute shall first seek a solution by negotiation, mediation,

arbitration, judicial settlement or other peaceful means. ◦ Security Council can call on parties to settle dispute peacefully

• Art 34: SC may investigate dispute or ‘any situation which might lead to international friction or give rise to a dispute’ in order to determine whether situation is likely endanger the maintenance of international peace and security.

Chapter VI: Peaceful settlement of disputes• States may refer a dispute to the Security Council (art 35).

◦ Non-member states can refer dispute, provided they accept the obligations of articles 2(3) and 33 (pacific settlement)

◦ Note that General Assembly also has power to consider disputes referred to it, but will defer to SC where both bodies are involved (see also arts 11 & 12)

• SC can recommend appropriate procedures or methods of adjustment in response to dispute (art 36)

◦ Taking into account measures already adopted by parties◦ And bearing in mind general rule that legal disputes should go before the

ICJ ◦ Recommendations are not binding (compare decisions under Ch VII which

are legally binding).

Peaceful settlement of disputes cont/…

If States fail to resolve a dispute under art 33 they have obligation to refer the matter to SC (art 37).◦ If SC deems that situation endangers peace and

security, may decide to take action under art 36◦ Many UN peacemaking and assistance missions are

exercises of art 36 power.

If States request, SC can make recommendations to the parties for settlement of the dispute (art 38)

Recommendations for peaceful settlement of disputes (art 36)

SC can recommend various action to help resolve a dispute:◦ Establishment of fact-finding and assistance missions;◦ Facilitating political settlement and dialogue aimed at achieving national

reconciliation;◦ Encouraging parties to the dispute to negotiate a ceasefire or peace

agreement;◦ Calling for elections to promote reconciliation and reinforcement of

democratic process. Peace agreements often set out plans and timetables for elections or establishment of representative government;

◦ Working with Secretary-General to set up UN Missions which will oversee and support elections;

◦ Calling on governments to assist the peaceful return of refugees and internally displaced persons;

◦ Establishing peacemaking missions to support diplomatic solutions and post-conflict peacebuilding missions.

Security Council Chapter VII Powers• Security Council has greater powers under Chapter VII to take

action where breach of international law represents threat to international peace and security.

• Where this involves use of force it will be exception to prohibition in art 2(4).

• Powers in Ch VII triggered by existence of threat to international peace and security - art 39:

‘The Security Council shall determine the existence of any threat to the peace, breach of the peace, or act of aggression and shall make recommendations, or decide on what measures shall be taken in accordance with articles 41 and 42, to maintain or restore international peace and security.’

Art 39: threat to international peace and security• SC must make determination that situation

represents a threat to international peace and security

• Art 2(7): UN shall not intervene in the domestic jurisdiction of any state – except under Ch VII

• So if the matter is an internal crisis, must make determination under article 39 that crisis threatens international peace & security.

• Security Council will pass a resolution indicating the outcome of its determination.

Art 39 cont/…• Use of force or act of aggression will clearly

satisfy art 39• Also extends to threats to the peace.

◦ Consistent with Art 2(4) prohibition on threats of the use of force

◦ No definition of what constitutes a ‘threat’ but has been applied to mass atrocities and repression of a people by its government (even where those events are internal).

Art 40: Provisional measures

• Usually temporary measures to enable SC time to deliberate further.

• May be in the form of recommendations (non-binding) or decisions (binding on UN members per art 25).

• Often combined in resolution which contains art 39 declaration, and often include a warning that if provisional measures are not complied with SC will review the situation and take further steps.

‘In order to prevent an aggravation of the situation, the SC may, before making the recommendations or deciding upon the measures provided for in Art 39, call upon the parties concerned to comply with such provisional measures as it deems necessary or desirable. Such provisional measures shall be without prejudice to the rights, claims, or position of the parties concerned. The SC shall duly take account of the failure to comply with such provisional measures.’

Art 40: provisional measures cont/…

Examples may include request for◦ withdrawal of armed forces; ◦ cessation of hostilities; ◦ disarmament of militias; ◦ conclusion or observance of a ceasefire; ◦ negotiation of differences and disputes; ◦ compliance with obligations under international humanitarian law; ◦ creation of the conditions necessary for unimpeded delivery of

humanitarian assistance; and ◦ cooperation with peacekeeping efforts and humanitarian

assistance.

Art 41: Non-forcible measures

• Recall art 40: ‘The SC shall duly take account of the failure to comply with such provisional measures.’ Art 41 measures won’t usually be taken if states are complying with art 40 provisional measures.

• Economic sanctions are common method:◦ call upon other UN members to prevent import of commodities or products originating

from offending state;◦ And to prevent activities within their territories or by their nations which would promote

or facilitate trade with offending state;◦ Often particular limitations on trade of weapons and other military equipment.

SC will monitor how states are complying with sanctions

‘The SC may decide what measures not involving the use of armed force are to be employed to give effect to its decisions, and it may call upon the Members of the United Nations to apply such measures. These may include complete or partial interruption of economic relations and of rail, sea, air, postal, telegraphic, radio and other means of communication, and the severance of diplomatic relations.’

Art 42: Forcible measures (Collective Security)

• Doesn’t require that SC use art 41 measures first, but must be satisfied that they would be inadequate.

• If it has imposed art 41 measures, needs to allow adequate time to be satisfied that they have proved inadequate.

• Collective security measures can include:◦ Sending in troops, attacking military facilities, destroying defensive powers◦ Controlling military, economic & natural resources to prevent future aggression

• Collective security occurs by SC requesting that states which are ‘able and willing’ take ‘all necessary means’.

‘Should the SC consider that measures provided for in art 41 would be inadequate or have proved to be inadequate, it may take such action by air, sea, or land forces as may be necessary to maintain or restore international peace and security. Such action may include demonstrations, blockade, and other operations by air, sea, or land forces of Members of the United Nations.’

Example: Libya A number of different measures implemented by Security Council in order to restore peace and security in Libya

Resolution 1970 (26 February 2011)◦ established arms embargo;◦ Imposed asset freeze

Resolution 1973 (17 March 2011) ◦ Demanded immediate cease fire and end to violence against civilians;◦ Authorised states to take all necessary measures to protect civilians,

excluding a foreign occupation force ◦ Established no-fly zone – states authorised to take measures to

enforce compliance◦ Enforcement measures for arms embargo from resolution 1970

Libya cont/… 19 March 2011 – intervention began (naval blockade + air strikes against military targets).

Coalition of states, with NATO assuming command over operation by end of March.

Resolution 2009 (September 2011)◦ Established UN Support Mission for Libya (UNSMIL)

Resolutions 2040 (12 March 2012), 2095 (14 March 2013) and 2144 (13 March 2014) - extended mandate by 12 month periods – currently extended to 13 March 2015.