Lecture notes
Lecture 1
Foundational subjects
Sources: what is international law?
Subjects: to whom does it apply?
State responsibility: when is it violated?
Dispute settlement: who gets to decide?
Jurisdiction: what are the limits of a state's legal order?
Immunity: when is jurisdiction barred?
Notes
Foundational topics: the topics that underpin the entire field of PIL, the building blocks of this body of law
Subjects covered in this course
Human Rights
Use of force and Law of armed conflict
Law on the use of force: governs the initial resort to the use of force
Law of armed conflict: covers the conduct of hostilities once 2 or more parties have entered into a conflict
International criminal law
Substative aspects: crimes the ICC has jurisdiction over
Procedural aspects: how the ICC is designed; when it can hear a case
Institutional aspects
International Economic law: created after WII to rebuild economies and prevent future conflicts
Law of the Sea and International Environmental Law
The Chagos Archipelago
Background
Facts of the case unfolded in the 1960s during the Cold War
During a wave of decolonizations, especially in Africa
UK fearful its withdrawal from territories in Indian Ocean would create a regional power vacuum
1964: US and UK conducted a survey of the Indian Ocean and identified Diego Garcia, part of the Chagos Archipelago, as an ideal site
for a US military base
Chagos Archipelago is more than 2200 km northeast of Mauritius
1965: UK and Mauritius concluded the Lancaster House Agreement
UK and Mauritius agreed that the Chagos Archipelago would be separated from the rest of Mauritius and remain part of the UK
The rest of Mauritius would become independent
The agreement was concluded by a body that did not truly represent the Mauritian people and did not exercise any real, independent
party
Consent by the Mauritius people obtained through pressure from the British
The UK agreed to return the Chagos Archipelago at a later point if no longer needed for defense purposes
1965: Chagos Archipelago became the British Indian Ocean Territory
Between 1968-1975, the inhabitants of the Chagos Archipelago were forcibly removed from the islands and forbidden from
returning
, 1980s: Mauritius government demanded the Chagos Archipelago under the grounds it did not give valid consent to its detachment
Strategic use of the military base is still in place
Diego Garcia continued to be used by the US as a base for flights transporting terror suspects
Post 2001 Extraordinary Renditions
Transfer of suspects to circumvent rules on detention, torture, interrogation, etc.
International Dispute Settlement
Fundamentals of IDS
ICJ is principal judicial organ of the UN along with the GA, SC, and SG
ICJ preceded by Permanent Court of International Justice associated with League of Nations
Types of adjudicatory bodies:
Standing or permanent: bench of judges consists of people appointed for a fixed term; ICJ judges elected for 9-year terms
Temporary or ad hoc: arbitration tribunals; come into existence to settle one dispute or a number of disputes; after the
dispute is settled, the tribunal no longer exists; in interstate disputes, the arbitration tribunals typically consist of 5
arbitrators
Arbitration between Mauritius and UK dealt with related aspect of the dispute between the two countries (law of the sea aspects)
ICJ's contentious jurisdiction is distinct from its advisory jurisdiction
Most of the time, the ICJ is busy with contentious cases and not advisory procedings
Contentious jurisdiction: Methods of consent
Judgements are binding on parties:
Compliance is required
Parties have to consent to the court delivering a judgement
Ways states consent to the contentious jurisdiction of the Court
Explicit consent is necessary; not enough for a state to be a UN member or a party to the statute to the ICJ
How to consent
Special Agreement (ICJ Statute Art. 36(1))
Treaty by which 2 or more states agree to refer a dispute to the ICJ or arbitration tribunal
Term 'special agreement' does not appear in the relevant provision of the ICJ statute: "the jurisdiction of the Court
comprises all cases which the parties refer to it" (understood as special agreement)
Compromissory clause (ICJ Statute Art. 36(1)
Provision in a treaty (bilateral, multilateral) that allows parties to refer disputes to a court or arbitration tribunal
Special agreements are retrospective (dispute exists, then agreement refers dispute); Compromissory clauses are
prospective (forward-looking, anticipate a future disagreement about the treaty)
No term 'compromissory clause', instead "the jurisdiction of the court comprises all matters specially provided for in
treaties and conventions in force"
Optional clause declaration (ICJ Statute Art. 36(2))
Specific to the ICJ
Special agreements and compromissory clauses are not specific to ICJ
Declaration that a state files with the ICJ
Through that declaration, the state accepts the jurisdiction of the court over all disputes or over some set of
disputes limited in some manner
Forum prorogatum (ICJ Rules Art. 38(5))
Last resort
, Applicable where an applicant state would like to bring a case to the ICJ against another state, but the respondent
state has not consented to the jurisdiction of the court (no special agreement, no compromissory clause, no optional
clause declaration)
Applicant state files application hoping the respondent state will accept the court's jurisdiction on an ad hoc basis
Attempted, but rarely succeeds
Advisory Jurisdiction (UN Charter Art. 96)
ICJ has jurisdiction to give advisory opinions when requested to do so by the UN GA, SC and specialized UN agencies authorized
by the GA (WHO) to request an advisory opinion
ICJ in advisory capacity has jurisdiction over requests that concern a legal question, not a legal dispute
Must be a question that can be answered by the court by reference to international law
Not meant to concern a live dispute between two states who haven't consented to the court's jurisdiction
NOT BINDING
Represent advise from the court to the requesting UN body
Proceedings resemble proceedings in contentious cases
But no applicant state and no responding state
Discretion to Decline (ICJ Statute Art. 65)
Even when the court has jurisdiction, it can still exercise its discretion to decline to provide the advisory opinion that has been
requested
Court can find the request to be inadmissible to protect its judicial integrity
Never exercised by the ICJ
ICJ’s Advisory Jurisdiction in Mauritius AO
Jurisdiction (paras 55-62)
GA requested advisory opinion and it set out 2 legal questions
Whether the process of decolonization of Mauritius was lawfully completed having regard to international law when it was
granted independence following the separation of the Chagos Archipelago (was the decolonization process of Mauritius
lawfully completed under international law at the time with specific reference to what happened with the Chagos
Archipelago?)
The legal consequences under IL of the UK's continued administration of the Chagos Archipelago (under state
responsibility, what are the legal consequences of the fact that the UK continues to administer the Chagos Archipelago?)
Discretion (paras 64-91)
4th reason, circumvention of principle of consent (paras 83-91)
Argument was that the questions relate to a pending dispute between Mauritius and the UK
Two states who have not consented to the settlement of the dispute by the court under its contentious jurisdiction
Some states argued before the court that the request concerns an ongoing dispute between the UK and Mauritius about
which state has sovereignty over the Chagos Archipelago (a dispute about sovereignty)
UK refuses to consent to the ICJ's jurisdiction in matters related to former colonies
, Giving this advisory opinion circumvents the principle of consent
A dispute about sovereignty under the guise of advisory jurisdiction
ICJ decided the requested opinion concerned not sovereignty, but decolonization
Two questions refer to a broader frame of reference
Broader than a bilateral sovereignty dispute between two states
The advisory opinion raises larger questions about how this particular decolonization process unfolded
Questions referred to the ICJ by the GA were very carefully drafted to avoid making any reference to sovereignty or
territorial integrity
During the oral proceedings, Mauritius did not use those words: sovereignty or territory
Court said the fact it would be pronouncing on legal issues on which the UK and Mauritius disagree does not mean it is
circumventing consent
Sources of International Law
Which international legal rules apply?
ICJ Statute Article 38 (sources of PIL)
Treaties
1a) conventions (treaties), protocols, accords, agreements, etc
Treaties are dominant in PIL
Customary international law (unwritten rules of PIL)
Two elements: state practice and opinio juris
State practice
Actions and statements made by states: written, oral, or actions (movement of a warship)
Widespread and consistent (not necessarily universal)
Opinio juris
Acceptance of a practice as law or legally obligated
Various reasons why states engage in a particular set of conducts
Serves as the way in which we distinguish state practice done out of habit or convenience or politeness from state
practice done out of a sense of legal obligation
States usually don't explain why they act a certain way
When discerning opinio juris, it is typically infered from the existing set of state practice; the inference that the
conduct is made out of a legal obligation
Example: law on immunity and law on self-determination
General Principles of International Law
Judgments and academic writings
Sources in Mauritius AO (paras 144-162)
Charter Law
