Public International Law-I
Lecture 6: State Responsibility
Asst.Prof.Dr.iur. Onur Dur (LLM, IHEID; PhD Basel)
[email protected] Main Instrument: ARSIWA
Draft Articles on State Responsibility for Internationally Wrongful Acts
19562001
ILC Work but largely CIL
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Reperations
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Public International Law-I
Lecture 6: Diplomatic Relations
Asst.Prof.Dr.iur. Onur Dur (LLM, IHEID; PhD Basel)
[email protected] Terminology
Embassy Ambassador
Consulate Consul
Vienna Convention on Diplomatic Relations (VCDR)
Vienna Convention on Consular Relations (VCCR)
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Key Provisions
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Public International Law-I
Lecture 6: Immunities
Asst.Prof.Dr.iur. Onur Dur (LLM, IHEID; PhD Basel)
[email protected] 20
Foreign Sovereign Immunity
Source: sovereign equality of states and non-intervention principle (CIL)
2004 UN Convention on Jurisdictional Immunity of States and their Property (not in
force yet due to insufficient ratification)
Failure to respect immunity is a matter of state responsibility
Absolute or some exceptions to foreign state immunity
(commercial business v sovereign acts)
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ICJ in Jurisdictional Immunity case: immunity as procedural plea so not applicable in
substance even if for international crimes.
State sponsor of terrorism: US, Canada
Freezing Russian Assets
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Foreign State Official Immunity
Source: CIL in Arrest Warrant Case, ICJ
Status-based immunity: Troika
- Immunity from civil and criminal jurisdiction including private acts
Arrest Warrant Case
Functional immunity: expires once the function is over
Pinochet (No 3) no functional immunity for torture (former head of state)
Torture is not official function of state
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Diplomatic and Consular Immunities
VCDR (1961) VCCR (1963)
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Consular statff (Functional immunity)
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Consular statff (Functional immunity)
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Public International Law-I
Lecture 6: Peaceful Settlement of
Disputes
Asst.Prof.Dr.iur. Onur Dur (LLM, IHEID; PhD Basel)
[email protected] University of Basel 31
Peaceful Settlement of Disputes
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Peaceful Settlement of Disputes
UN Charter 33 establishes two-fold procedure:
- First, parties should seek "negotiation, enquiry, mediation, conciliation,
arbitration, judicial settlement, resort to regional agencies or arrangements, or
other peaceful means of their own choice"
- Second, UNSC might intervene if it deems necessary.
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Peaceful Settlement of Disputes
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Negotiation
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Good offices
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Mediation
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Conciliation
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Last options
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Permanent Court of Arbitration
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ICJ and Adjudication
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ICJ and Jurisdiction
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All matters specially provided for ... in treaties and conventions in
force
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CERD Cases and Lawfare
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Optional Clause
Unilateral acceptance of the ICJ’s jurisdiction in advance
Can be limited by state however they wish
- UK and Commonwealth countries
- National security exception
Limitation and withdrawal should be in good faith and within reasonable time
frames.
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Interim Measures of Protection
ICJ Statute art. 41: “The Court shall have the power to indicate, if it considers
that circumstances so require, any provisional measures which ought to be taken
to preserve the respective rights of either party.”
Binding or not?
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Interim Measures of Protection
Binding, LaGrand case (Germany v US)
Functional interpretation
Not very eager, only if prima facie jurisdiction satisfied.
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Compensation
ICJ rarely issues compensation unlike investment arbitration. It did so in Wimbledon and Corfu Channel
Cases. Sometimes, mere statement of ICJ on one of parties violated International Law was deemed enough.
Usually, ICJ renders some sort of settlement:
- In border disputes, the court may do the delimitation.
- If the defendant changes its behaviour and plaintiff got what it wanted, there would be no compensation
(Nuclear Tests Case between Australia and France).
- Court may instruct further negotiation and provides some precision which factors they should consider.
- Sometimes, parties reach a settlement before the court orders the compensation such as Nicaragua v US.
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Third Parties and the Court
Court's decision is only binding upon parties in principle. However, in other
scenarios, other states would be affected. For instance, a maritime delimitation
case or statement of a customary rule.
If the court is satisfied with the potential impact of the pending case over a third
country, then the ICJ would allow the third country to intervene.
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Third Parties and the Court
If two countries sue each other at the same time on similar ground, the court
might merge the cases together.
The court did not accept *actio popularis* i.e. intervention for public interest.
- South Western Africa Case
- East Timor: Even in *erga omnes* obligation such as right to self-
determination, ICJ did not accept.
- Gambia v Myanmar would be a shift in opposite direction.
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Advisory Opinions
Under the article 65 of the Statute, the ICJ can be asked any legal question as
AO. Article 96 of the UN Charter allows UNGA and UNSC to ask for an AO from
ICJ. Other international organizations can only do if UNGA authorizes. For IOs,
they can only ask for an AO if it is related to their mandate. For example, the ICJ
deemed that the request of WHO on the legality of nuclear weapons as *ultra
vires* and rejected the request.
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Advisory Opinions
UNGA stepped in two times to reach to court where it was unlikely to have
contentious case to come before the court. First instance was the Western
Sahara AO and the second one was the Wall AO (P. 49).
In Chagos case, the court underlined that it is up to the requesting organ
whether an AO is useful or not for its mandate.
We have another one again related to Palestine.
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Final Remarks
ICJ does not have a magical formula to solve all the politically charged disputes.
In certain instances, it may only help.
- Nuclear Weapons Case
ICJ is not like HR courts so no progressive development, but IL progresses.
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Final Remarks
- ICJ's clients are states so like in the arbitration, it has to offer middle-way
solutions so that the clients will come again.
- Judges are also human beings, they have their own experiences, bias and
feelings so the decision can change if the composition of judges change as it
was in the case of South Western Africa.
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Final Remarks
- ICJ's authority comes from its legacy and competences of sitting judges as they
all have strong background. Whereas in Human Rights courts, states nominate
for their national quotas and sometimes the quality standard might be doubtful.
- ICJ is the last resort for states, they come only if diplomatic negotiations fail
because the verdict is unpredictable, the process is lengthy and expensive and it
is out of the states' control.
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