Public International Law
Week 1
Hoorcollege 1
Foundational Subjects:
- 1. Sources: what is international law?
- 2. Subjects: to whom does it apply?
- 3. State responsibility: when is it violated?
- 4. Dispute settlement: who gets to decide?
- 5. Jurisdiction: what are the limits of a state’s legal order?
- 6. Immunity: when is jurisdiction barred?
ICJ’s Mauritius Advisory Opinion:
- International dispute settlement.
- Sources of international law.
- Statehood and self-determination.
- State responsibility.
Schedule:
- Week 1: Human Rights.
- Week 2: Use of force & Law of Armed conflict.
- Week 3: International criminal law.
- Week 4: International economic law.
o Trade & investment law.
- Week 5: law of the sea.
- Week 6: international environmental law.
The Chagos Archipelago:
- U.K. feared that withdrawal from colonies would lead to a powervoid that would be filled
by the Soviet-Union (1964).
- U.K. & US. Built a military station to prevent this power vacuum.
- During the cold war.
- Lancaster House Agremeent (1965): Chagos Island would separate from Mauritius and
Mauritius would become independent. Chagos Islands would remain a part of the U.K.
o During the time of this agreement Mauritius was still a colony of the UK and the
agreement was made under high pressure from the UK.
, o The UK government basically said: we give you independence if you give us the
Chagos Islands.
o The UK would afterwards return the Chagos Island when it would no longer be
necessary for defense purposes.
- In 1965 the British Indian Ocean Territory was established.
- 1968-1973: forcible removal from Chagos (who?).
- Post 2001 extraordinary renditions.
o Refers to the transportation of subjects outside the law (like Guantanamo bay).
International dispute settlement:
- Fundamentals of international dispute settlement.
o Types of adjudicatory bodies:
Standing (permanent) court. -> like ICJ and PCIJ.
Has a long line of jurisprudence.
Ad hoc (temporary) arbitration.
Arbitrators come together to settle a particular (set of) dispute(s)
and then disbands itself afterwards.
- Contentious jurisdiction of ICJ: Methods of consent -> under what circumstances do
states give ICJ permission to settle a dispute?
o Contentious or advisory.
Contentious: legal disputes between states alone.
o The courts power to rule on state disputes is dependent on consent from the
parties.
o Methods of consent:
1. Special agreement (ICJ Statue Art. 36 lid 1).
Dispute already exists and states come together to settle the dispute
with an agreement.
2. Compromissory clause (ICJ Statue Art. 36 lid 1).
Is part of a treaty.
Disputes on a certain treaty will then be settled by the ICJ.
3. Optional clause decl. (ICJ Statute art. 36 (2).
Only applies to ICJ.
States file declarations with the court and these files recognize the
authority of the court.
4. Forum Prorogatum (ICJ Rules art. 38 (5).
Only applies to ICJ.
Advisory jurisdiction (UN Charter art. 96).
- ICJ has competence over legal questions rather than legal disputes.
- Legal advice is non-binding, but quite authoritative.
, - Has to be requested by a legal entity.
- ICJ can refuse to give a advisory opinion under certain inappropriate circumstances, even
if it has the jurisdiction to do so.
o Art. 65 ICJ Statute.
ICJ’s Advisory Jurisdiction in Mauritius AO:
- Jurisdiction (p55-62).
- UK didn’t give consent to an advisory opinion.
- The court decided that the requested opinion concerned decolonization -> this is broader
than just a bilateral dispute about sovereignty of Chavos.
o Therefore the court didn’t circumvent the principle of consent, which is required
to give an advisory opinion.
o This was a controversial decision.
- 4th reason, circumvention of principle of consent (p83-91).
Sources of international law (art. 38 ICJ Statute).
- Treaties.
- Customary international law.
o Two elements:
State practice: consistent and widespread actions and statements of states. -
> 100% consistency isn’t required, but overall consistency is.
Opinio juris: refers to the acceptance of a practice as law or as legally
obligated.
Sources in Mauritius AO (p144-162):
- Charter law.
- Customary law.
o Friendly relations declaration (1970). -> ICJ doesn’t see this as customary law.
Confirmed the normative character of self-determination, but did not give
right to it, because that had already been done in 1960.
o GA Res 1515 (VX) (1960) -> this is the moment the rule of self-determination
crystalized.
Functions as both state practice and opinion juris.
o Conclusion: the customary law of self-determination crystalized in 1960.
, Statehood:
- Statehood criteria (Montevideo):
o 1. Permanent population.
o 2. Defined territory.
o 3. Government.
o 4. Capacity to enter into relations with other states.
- Recognition: what role does recognition by other states platy in the existence of another
states -> is it important for an entity to be recognized by other states?
o Recognition is widely viewed as declaratory, therefore it is not necessary for a
state to be recognized to exist.
Right to self-determination:
- Self-determination in decolonization context (GA Res 1514): freedom to political status,
economic, social and cultural development (p1).
o Colonial powers are obliged to transfer power to their colonies and to do so
without posing conditions (p5).
o Territorial integrity (p6).
Self determination in Mauritius AO (p170-174):
- No real agreement was made.
- ‘heighted scrutiny’ should be given -> the court says it should be viewed very carefully.
- Legal conclusion: UK had the obligation to respect the territorial integrity of Mauritius,
therefore the decolonization-process was not fulfilled.
o The consent was not freely given by Mauritius, because the UK posed conditions.
State responsibility:
- International Law Commission -> ARSIWA.
- Elements of an international wrongful act.
o Attribution to a state.
o Breach of law (treaty or customary law): act of a state is not in compliance with a
treaty or customary law or a general principle.
- Circumstances precluding wrongfulness: a state can justify its acts that were not in
compliance with the law.
- Legal consequences:
o 1. Remedies that are geared to prevention of future violations.
Cessation: a state has to cease an ongoing wrongful act.
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