PIL Jurisprudence
ICJ North Sea Continental Shelf Case
Subject:
- Customary law
Question:
- Can the existence of a customary rule be derived from a treaty, and if yes, under
what conditions
Facts:
- Countries Netherlands, Germany and Denmark that border the North Sea, made
agreements about the borders of the countries on the North Sea Continental Shelf.
- Denmark and The Netherlands base the agreements on other regulations and/or
rules about the dividing of the Sea Shelf then Germany.
- The countries ask the ICJ to solve the problem
Process/conclusion
- ICJ makes/states criteria that are relevant in determining if a rule is customary law:
1. Para 71: (art. 6 of the Convention) a norm creating provision which has
constituted the foundation of, or has generated a rule which, while only
conventional or contractual in its origin, has since passed into general corpus of
International Law, and is now accepted as such by the opinio juris.
2. Para 73: it might be that, even without the passage of any considerable period of
time, a very widespread and representative participation in the convention might
suffice of itself (not a long period of time of practice needed)
3. Para 74: within the period in question, short it might be, State practice, including
that of states whose interests are specially affected, should have been both
extensive and virtually uniform in the sense of provision invoked; and should
moreover have occurred in such a way as to show a general recognition that a
rule of law or legal obligation is involved
4. Para 77: the existence of opinio iuris. Two conditions: (1) acts concerned amount
to a settled practice, and must be carried out in such a way, as to be evidence of a
belief that this practice I rendered obligatory by the existence of a rule of law
acquiring it, and (2) States must feel that they are conforming to what amounts
to a legal obligation (state practice)
Reparations for Injuries Advisory Opinion
Subject:
- UN subject of International Law
Question:
- Is the UN a subject of International law and could it claim reparation for damage
suffered by themselves or the victim (agent of UN)?
- Can the UN submit a claim against a non-member state?
Facts:
- After the murder of a couple of members of the UN in 1948 in Israel
- The UN asked the ICJ advice about the actions (like a compensation claim) that could
be taken against Israel
, Process Q1
- Effective working of the Organization – the accomplishment of its task, and the
independence and effectiveness of the work of its agents - require that these
undertakings should be strictly observed. For that purpose, it is necessary that, when
an infringement occurs, the Organization should be able to call upon the responsible
State to remedy its default, and, in particular, to obtain from the State reparation for
the damage that the default may have caused to its agent (page 12)
- The Court is of the opinion that, in the case of a breach of these obligations, the
Organization has the capacity to claim adequate reparation (page 12)
Process Q2
- Court’s opinion is that 50 states, representing the cast majority of the members of
the international community, had the power in conformity with international law, to
bring into being an entity possessing objective international personality, and not
merely personality recognized by them alone, together with capacity to bring
international claims
ICJ Jurisdictional Immunities of the State Case (Germany vs. Italy)
Subject:
- Immunity of the state
- Ius cogens
Question:
- Can the Italian court hold Germany accountable or is the state immune?
Facts:
- During WW2 Germany committed warm crimes. After the war, Germany recognized
these crimes and treaties were made where victims and their relatives could get
compensation from.
- Not all individuals can get compensation. The court in Italy holds Germany liable for
these crimes. Germany states it enjoys state-immunity before the Italian court.
Process
- Italy states for the next reasons that Germany doesn’t enjoy immunity (para 80):
o Italy contends that acts which gave rise to claims constituted serious
violations of principles of IL applicable to the conduct of armed conflict,
amounting to war crimes and crimes against humanity
o Rules of IL thus contravened were peremptory norms jus cogens
o Claimants having been denied all other form of redress, exercise of
jurisdiction by the Italian courts was necessary as a matter of last resort
- The ICJ states that these arguments don’t apply, because it is contrary to the state-
immunity of Germany. The Italian court needs to respect Germany’s immunity, by
reason of the fact that it is accused of serious violations of international human rights
law. (para 91)
ICJ North Sea Continental Shelf Case
Subject:
- Customary law
Question:
- Can the existence of a customary rule be derived from a treaty, and if yes, under
what conditions
Facts:
- Countries Netherlands, Germany and Denmark that border the North Sea, made
agreements about the borders of the countries on the North Sea Continental Shelf.
- Denmark and The Netherlands base the agreements on other regulations and/or
rules about the dividing of the Sea Shelf then Germany.
- The countries ask the ICJ to solve the problem
Process/conclusion
- ICJ makes/states criteria that are relevant in determining if a rule is customary law:
1. Para 71: (art. 6 of the Convention) a norm creating provision which has
constituted the foundation of, or has generated a rule which, while only
conventional or contractual in its origin, has since passed into general corpus of
International Law, and is now accepted as such by the opinio juris.
2. Para 73: it might be that, even without the passage of any considerable period of
time, a very widespread and representative participation in the convention might
suffice of itself (not a long period of time of practice needed)
3. Para 74: within the period in question, short it might be, State practice, including
that of states whose interests are specially affected, should have been both
extensive and virtually uniform in the sense of provision invoked; and should
moreover have occurred in such a way as to show a general recognition that a
rule of law or legal obligation is involved
4. Para 77: the existence of opinio iuris. Two conditions: (1) acts concerned amount
to a settled practice, and must be carried out in such a way, as to be evidence of a
belief that this practice I rendered obligatory by the existence of a rule of law
acquiring it, and (2) States must feel that they are conforming to what amounts
to a legal obligation (state practice)
Reparations for Injuries Advisory Opinion
Subject:
- UN subject of International Law
Question:
- Is the UN a subject of International law and could it claim reparation for damage
suffered by themselves or the victim (agent of UN)?
- Can the UN submit a claim against a non-member state?
Facts:
- After the murder of a couple of members of the UN in 1948 in Israel
- The UN asked the ICJ advice about the actions (like a compensation claim) that could
be taken against Israel
, Process Q1
- Effective working of the Organization – the accomplishment of its task, and the
independence and effectiveness of the work of its agents - require that these
undertakings should be strictly observed. For that purpose, it is necessary that, when
an infringement occurs, the Organization should be able to call upon the responsible
State to remedy its default, and, in particular, to obtain from the State reparation for
the damage that the default may have caused to its agent (page 12)
- The Court is of the opinion that, in the case of a breach of these obligations, the
Organization has the capacity to claim adequate reparation (page 12)
Process Q2
- Court’s opinion is that 50 states, representing the cast majority of the members of
the international community, had the power in conformity with international law, to
bring into being an entity possessing objective international personality, and not
merely personality recognized by them alone, together with capacity to bring
international claims
ICJ Jurisdictional Immunities of the State Case (Germany vs. Italy)
Subject:
- Immunity of the state
- Ius cogens
Question:
- Can the Italian court hold Germany accountable or is the state immune?
Facts:
- During WW2 Germany committed warm crimes. After the war, Germany recognized
these crimes and treaties were made where victims and their relatives could get
compensation from.
- Not all individuals can get compensation. The court in Italy holds Germany liable for
these crimes. Germany states it enjoys state-immunity before the Italian court.
Process
- Italy states for the next reasons that Germany doesn’t enjoy immunity (para 80):
o Italy contends that acts which gave rise to claims constituted serious
violations of principles of IL applicable to the conduct of armed conflict,
amounting to war crimes and crimes against humanity
o Rules of IL thus contravened were peremptory norms jus cogens
o Claimants having been denied all other form of redress, exercise of
jurisdiction by the Italian courts was necessary as a matter of last resort
- The ICJ states that these arguments don’t apply, because it is contrary to the state-
immunity of Germany. The Italian court needs to respect Germany’s immunity, by
reason of the fact that it is accused of serious violations of international human rights
law. (para 91)
