Hoorcollege
Week 1
Foundational subjects:
- Sources: what is international law
- Subjects: to whom does it apply
- State responsibility: when it is violated
- Dispute settlement: who gets to decide that is has been violated
- Jurisdiction: what are the limits of a state's legal order
- Immunity: when is jurisdiction barred
Lecture outline:
1. Subjects covered in this course
2. ICJ’s Maurits Advisory Opinion:
- International dispute settlement
- Sources of international law
- State-hood and self determination
Subjects covered in this course:
- Week 1: Human rights (right to life)
- Week 2: Use of Force; Law of Armed conflict
- Week 3: International Criminal Law (genocide, war crimes, criminal law)
- Week 4: International Economic Law (trade law, investment law)
- Week 5: Law of the Sea
- Week 6: International Environmental Law
The Chagos Archipelago
- Background 1960’s during Cold War
- Wave of decolonisation. UK feared that when letting fall their colonies, that Sovjet Union
would get these colonies
- Military Base for US. Chagos Islands in the middle of the ocean, therefore strategic
- More than 2.000km from the mainland of Mauritius
- 1965: Agreement between UK and Maurtional Council of Ministers: Lancaster House
Agreement
- UK had all the power and the Maurtional Council was not independent
- The agreement said that Chagos Archipelago would be separated to Mauritius
- Wasn’t real agreement with full consent of Maurtional people.
- UK said that they gave independence only if they still will have Chagos Archipelago
- 1965: British Indian Ocean Territory established
- 1968-1973: Forcible removal of island and prhiibited from returning
- 1980’s Maurtional government demanded return Chagos Archipeolgo, because never real
consent
- Still is a military base, for nuclear submarines
- Post 2001: Extraordinary renditions. Way of ontwijken interrogartions
International Dispute Settlement:
, - Advisory opinion by international court of justice
- What is an Advisory opinion?
- Fundamentals of IDS:
- Types of adjudicatory bodies
1. Standing (permanent) --> International Court of Justice. Competence of full range of subjects
and ages back to Second World War and 15 arbitrators. A lot of jurisprudence and therefore
contribution to international law. Bench of justice and always ready for a court. Other
examples: International tribunal law of the Sea and European Court of Human Rights.
2. Ad hoc (temporary) --> Group of arbitrators to settle a particular dispute. After that it
vanishes. Mostly 5 arbitrators. South China Sea/Arctic Sunrise example.
- Contentious Jurisdiction: Methods of consent:
- Most of the time ICJ legal disputes between states. Court power is through consent of
parties. These are binding, so have to comply with the ICJ.
- Some methods for consent specific for ICJ and some for all courts.
1. Special Agreement (compromis): Art. 36 ICJ Statue: 1. The jurisdiction of the Court
comprises all cases which the parties refer to.... --> Referring to short treaty that states
reach to sent dispute to ICJ. Example is North Sea continental Shelf Case. Retrospectief -->
Onenigheid bestaat en pas daarna wordt treaty gemaakt
2. Compromissory Clause (compromissoire clausule): art. 36 lid 1 ICJ Statue. Disputes that
are in the future --> prospective: disputes that will exist in the future
3. Optional clause declaration (facultatieve clausule): art 36 lid 2 ICJ Statue: The states
parties to the present Statute may at any time declare they recognize as compulsory... -->
States recognize jurisdiction. They can limit this jurisdiction, for example colonies.
Prospective: disputes that will exist in the future
4. Forum prorogatum: art. 38 lid 5 ICJ Rules: state initiating court can file court in the hope
that the respondent state will accept jurisdiction. Interially on the respondent state.
- Advisory Jurisdiction: Art. 96 UN Charter: is limited to legal questions that touch
international law, not to international disputes. Non-binding, so state don’t need to follow
advise form ICJ. States can appear for the court for oral hearings. No applying or responding
state. For example Israel and Palestine or Archipelos case.
- Discretion to Decline: Art. 65 ICJ Statue: Decline to request to give opinion, eventhough
jurisdiction. Gives court space to decline: “may” instead of “shall” or “must”. Sometimes it
must decline. Courts way of providing help and therefore request should not be declined,
only in compelling reasons and therefore never been used --> retroperspective
ICJ’s Advisory Jurisdiction in Mauritius AO:
- Questions were easy to resolve
- Court had to check two things:
1. Has one of the authorized organs made the request? --> Yes, because General Assembly
2. Was there a legal question asked, not about a dispute? --> Yes, see under
- Question 1: Process of decolonization
- Question 2: Legal consequences of separation
- Discretion (paras 64-91)
- 4th reason, circumvention of principle of consent (paras 83-91)
- States did not gave permission, UK for example. They did not consent jurisdiction because of
the compromissory clause. UK said General Assembly is trying to go around this lack of
jurisdiction by asking an advisory opinion.
, - This was not the case, because the opinion was something broader. It was about
decolonization and therefore broader frame of reference because also important for other
UN-members.
- Court shows how important is to draft questions carefully.
Sources of International Law:
- What law govern the decolonisation process of Mauritius?
- Art. 38 ICJ Statute: The Court, whose function is to decide in accordance with international
law such disputes as are submitted to it, shall apply: a. International conventions b.
Interntional customs c. the general principles of law recognized by civilized nations d. subject
to the provisions of art. 59, judicial decisions and the teachings of the most highly qualified
publicists of the various nations
1. International conventions --> treaties
2. Customary international law --> unwritten rules
- State practice: consistence actions made by states, for example physical action or letters.
Not just two states of 100% consistence. Gradual process over time.
1. Widespread/extensive
2. Consistent/uniform
- Opinio juris: acceptance as a practise as law, legally obligated. State think that that is
required by international law. The way we distinguished between that is through legal
obligations or if is just done that way but not a legal obligaiton. Feeling of legal obligation.
For example when state goes to US that the press may take pictures, that is not a legal rule.
3. General principle of international Law
4. Judgement and academic writings
Sources in Mauritius AO (paras 144-162)
- No treaty Law: UN Charter --> Charter doesn’t help what self-determination is (art. 1 UN-
Charter) and not a treaty about self-determination.
- Therefore, Customary Law --> When the law self-determination had crystallised or formed
during the time of decolonization
- Only crystallised in 1970
- Friendly relations declarations 1970
- Court analyses State practice and Opinio Juris. 17 states decolonised and gained
independence in 1970’s. So wave of decolonization. Court looked at role at General
Assembly and said there was Opinio Juris.
- General Assembly Resolutions 1514 (1960): says that even though General Assembly
resolutions non-binding, that they have authority and Declaratory Character: Declared
existence of right to self-determination. 89 states were in favour of declaration so a lot of
conformation.
- Conclusion: State practise and Opinio Juris that there was a rule of self-determination.
Statehood:
- Statehood Criteria
- States make the law and subject of the law
- Therefore important what qualify as a state --> Montevideo Convention:
1. Permanent population
2. Defined territory
, 3. Government
4. Capacity to enter into relations with other states: independent to for example what treaties
they want to enter
- All of them need to be filled
- Archipelo does not fill these criteria because not permanent population and lacks
government and under control of UK
- Recognition:
- Declaratory (not constitutive) --> So not a criteria per se
Self-determination --> GA resolution 1514:
- Self-determination in decolonization context (GA resolution 1514)
- Freely pursue political status; economic, social and cultural development (para 1)
- Colonial powers (UK, NL, France) must give Immediate steps to transfer powers to colonies
that not yet gained independence, without conditions (para 5)
- Must go in a way that respects territorial integrity (para 6)
Self-determination in Mauritous:
- Not a agreement of detachment of Archipelo between Mauritius and UK
- Heightened scrutiny, court needs to look if there was consent. There wasn’t of the free
expression of the will of the people concerned. Mauritian people did not give consent, but
forced.
- UK therefore obligation to respect territorial integrity of Mauritius, so decolonisation
process was illegal.
State responsibility:
- International Law commission, articles on Responsibility of States for Internationally
Wrongful acts (ARSIWA)
- Internationally Wrongful act (Violation)
- Attribution (ARSIWA art. 4-11) --> if it’s a state action.
- Organs of a state --> legalisalte, judicial, executive art. 4
- Art. 7
- Breach (ARSIWA art. 12)
- P 169 + p. 171 important
- Circumstances precluding wrongfulness
- Legal consequences
- Cessation and non-repetition
- Reparations (restitution, compensation --> Financial accessible art. 36, satisfaction --> ask
for formal apology and can always be asked + to state that there was a breach art. 37)
- Mauritius advisory opinion (p. 773) ---> important for exam. Jurisdiction for an advisory
opinion: A legal question and question need to be asked by General Assembly, Security
Counsil or Specialized Agency.
- Art. 96 Un Charter (p. 132)
- p. 775 number 28 --> Summary: decolonization specialized of Mauritius Agency by the UK +
USA. But main claim to the UK. Was the decoliziation completely done? The answer was no.
- p. 777 para 54 important for jurisdiction and discretion to decline + 778
- p. 779 circumvention of consent question 4. ICJ is about consent, but in this case bilateral
dispute and UK said but ICJ said there was a bigger question about decolonization. But you
