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Obligation of peaceful settlement Means of peaceful settlement The ICJ contentious and advisory jurisdiction
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)
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)).
specialised agencies (ILO, WHO, FAO &c) Legal question Arising within the scope of the activities of requesting agency (Nuclear Weapons case CB 194)
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).
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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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.
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).
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.
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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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In practice SC and UNGA coordinate closely on elections. Mostly judges objective although criticism particularly on advisory opinions (eg Wall).
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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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Referred to as compulsory jurisdiction but really optional. 65 declarations currently on ICJ website.
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ie both states must recognise jurisdiction of court NL Norway respondent (Norwegian banks and French citizens)
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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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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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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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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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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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