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Seeking Justice (settling dispute (arbitration (Court Juridiction…

- - - - negociation : unregulated, informal
        the outcome can be a treaty
        commission of inquiry can be set up in case of dispute in consent (cf Hague Convention) or not (UN Security Council, UN Human Rights Council)
      - Good offices and mediation (Hague Convention) : intervention of a third party/person
        Good office : restore the communication
        mediation : reconciles the parties by making suggestions
      - Conciliation : mediation between the parties : each party appoints a conciliator => conciliation commission which tries to find the terms of a (proposed) settlement. If no agreement => arbitration of a third member with the power to adjudicate the dispute
      - Regional agencies or arrangements : allow diplomacy to take place under the auspices of neighbouring States
  - - - Namibia + South Africa border =>
      - consultation/negociation => PCA
        Pacific Group => Council of Ministers => Committee of Ambassadors => PCA
    - - arbitral tribunal : generally not permanent but sometimes it remains for years (US-Iran : 46 years => history and consistency developed => landmark award)
        , often 3 (default) or 5 arbitrators (sometimes 1)
        1 or 2 for each party (national as arbitrator) or 0 (then one party-appointed arbritrator appointing a presiding one)
        If no agreement, Secretary-General of UN or PCA or ... has the power to appoint the missing arbitrator
        Then the tribunal is constituted => rules of procedure agreed by the parties => objections on the competence of the tribunal => tribunal decides on its own jurisdiction or decline
        if it has jurisdiction => merits of the claim is presented by the parties (evidence, experts,..)
        The awards are final and binding the parties
        rem : corruption is a ground of nullity
        The parties bear the cost + arbitrator fees
        Arbitration is flexible and speed, it can be kept confidential
        ICJ (Hague): principal judicial organ of UN
        Member State of UN is party to the Statute of ICJ (in the Charter)
        ICJ refers to PCIJ (League of Nations) decisions/judgements/opinions
        ICJ : 15 permanent judges (representing main forms of civilization of the principal legal system of the world) of <> nationality, elected for 9 years by the General Assembly & Security Coucil. They can be re-elected. Some seats (in the 15) is allocated to each part of the world
        in the 15 : P5 : 5 permanents : US, UK, France, China, Russia.
        judges are elected from a list of persons nomitated by the national groups of PCA (1 group = 4 persons appointed as members of the PCA); absolute majority of votes in the General Assembly and in the Security Council (here permanent and non-permanent vote).
        No veto, multiple rounds possible. Election : every 9 years (Court) and 3 years (reelect judges). If a judge dies => separate election for a new on
        The Court elect its President and vice-president every 3 years; the Court elects the Registrar every 7 years
        the Court sits in plenary (full) or ad hoc Chamber (5 members). Ad hoc judge can be asked by a party, also in ad hoc Chamber). Quorum of 9 judges is necessary (without ad hoc judges !).
        The decision of the Court : majority an the President has a casting vote.
        The parties pay for their counsels only.
        The Court is the master of its own procedural rules : Rules of Court. It can amend it
        The Court is the master of "Practice Directions" addressed to the parties (informal et of rules) and of "Resolution concerning the Internal Judicial Pratice of the Court" detailing what's happening behind the scene (deliberation,..).
        Languages are : French + English
    - - Advisory (art 96; 26 times ex Kosovo) : asked by General Assembly of UN (=> opinion on any legal question, without restriction apart legal => domestic law could be possible... and also recommendation about dispute unless Security Council ask it (art 12)? no, also possible) or by specialized agencies (if authorized by GA, => principle of speciality=> opinion on any legal question within the scope of their activities; otherwise : no opinion)
        When a request is addressed to the Court, the Registrar gives notice of it to all States entitled to appear before the Court (+ international organizations)
        The Court can re-formulate the request and/or decline it for compelling reasons
        The opinion is given to the requestor (not binding but it has authority)
      - Contentious jurisdiction + advisory jurisdiction
      - Jurisdiction : the Court settles disputes if it exists between subjects of international law that have access to the it (locus standi or jurisdiction rationae personae) + if the parties have consented to its jurisdiction (jurisdiction rationae materiae) => binding decision
        Access to it : States (and not organizations, individuals,...) being party to the Statute of the Court (de facto UN member States, + other States if they fulfill the conditions) the day the dispute is submitted to the Court (exception : Croatia vs Serbia : condition fulfilled at the time of judgement)
        Consent : only if access to it !
        the dispute can be of any relevant subject (territorial, maritime, environmental,..), but we need the consent of the parties
        => 1) Special agreements => be concluded prior to the moment the Court is seized of a dispute (terms notified to the Court; State A / State B whatever the support...; sometimes interpretation is needed : UK/Albania) confers jurisdiction to the Court (primary condition for the Court to exercise its judicial function) and they can define the limits of it, but not the judicial function itself (operative parts, ex Burkina Fasso/Niger)
        2) Compromissory clause (facult.) : art 36 : ICJ jurisdiction is open to all matters. Often we insert a reference to ICJ in treaties in advance but with compromissory clause in order to settle disputes relating to the interpretation or application of the provisions of the treaty. Court will not have jurisdiction non matter which is not in the treaty (ex : Bonia-Herzegovinia and Croatia for Genocide convention). Compromissary clause are inserted to say which condition should be met (or not) (ex : negociation first) before going in front of ICJ especially for multi-subject treaties (multi-lateral for instance). If the econdition are not met => no jurisdiction (ex : Georgia and Russia racial discrimination but ICJ had no jurisdiction to settle the dispute and Georgia failed to seek to settle by negociations = conditions)
        Resort to negociation => notice a dispute exists, encourage mutual agreement, indicates the limits of consent given by the States
        3) Forum prorogatum : a way to consent to the jurisdiction of the Court when a dispute already exists=< the registry transmits the application to the State against which it is made (+ General list of the Court) . It can consent or not and the way to accept it = forum prorogatum (Djibouti and Ccongo against France)
        4) Optional Clause (art 36) = the declaration by which States recognize as compulsory the jurisdiction of the Court. Mut be deposited with the Secretary-General of UN. States may accept it unilaterally by a declaration, in any time (for all or for certain disputes by reservations, ex : those arose after a certain date, exclude maritime dispute). If another State does it (the same obligation) : there is a jurisdictional link between them and the ICJ is mandatory for them.
        => 2 conditions : same clause and ICJ accepted on both sides
        The objet of reservation is reciprocal (A cannot ask ICJ if he has refused it!!!)
        A state can accept the clause if B & C accept it (condition), and also only for a period (ex : 5 years renewable)
        Automatic reservation in a optional clause : exclusion of domestic jurisdiction because it is up to the Sate to determine the issue. (Norway against France; Norway avail the automatic clause of France)
        Optional clause must be interpreted from the text AND from the context (Spain vs Canada, Australia vs Japan)
    - - list of countries having accepted (optional clause) : 193
        
        UK is the last permanent member !!!
      - 300 treaties contain compromissory clause referring disputes to the ICJ
    - - from the momennt ICJ is seized until the judgement
        
        1) Court is seized of a dispute (notification of a special agreement or filling an application if the claimant state invokes a compromissary clause, 2 optional clauses or an expectant consent in case of forum prorogatum )
        
        2) Regisrtry of the Court notifies the Secretary General of the UN + UN member States + other States entitled to appear before the Court
        A special notification (+ copies of the written pleadings) is addressed to States parties to multilateral treaties + organizations. = Publicity
        
        3) the Court verifies the views of the partiesd => defines a procedural order (time-limits are fixed for the filling of the parties written pleadings; 2 rounds of claimant + respondent)
        
        4) oral pleadings (2 rounds)
        
        5) agents (official State representatives) read their final submissions
        
        6) The Court deliberates
        
        7) judgement (few months later)
      - Incidents - Provisional measures
        
        Interim measures of protection (art 41) binding the States (US vs Germany) = order of the Court (<> judgement, so they can change with the ecircumstances)
        
        Pre-requisites :
        Link between the measures requested and the rights protected?
        AND rights are plausible?
        AND RISK of irreparable prejudice?
        AND URGENCY?
        
        claimant or respondant or initiative of the Court (which can be different from those requested)!
        
        Ex : Costa Rica vs Nicaragua (incursion) => Costa Rica fills the request