CHAPTER 1: INTRODUCTION
TOPIC 1: INTRODUCTION
1.1 Three Views of Public International Law
– Positivist view: International law vindicates the consent of states.
– Constructivist view: International law creates precedent for resolving boarder disputes.
– Realist view: This is no precedent whatsoever. Who knows what will happen in future cases — at the extreme, law doesn’t matter. These are just interests being funneled through rhetoric.
1.2 How to Get a Dispute to the ICJ:
1. Consent of the parties via a special agreement over an individual dispute.
2. By Treaty which says that it is subject to ICJ jurisdiction.
3. Signing Article 36.2 of the ICJ’s statute, which is a general indication of when you will consent to be sued at the ICJ.
1.3 The Aouzou Strip Affair
– Background:
– Chad and Lybia are fighting over a small strip of land. The ICJ rules that Chad wins by 16-1.
– Why Were Chad and Lybia Fighting About this Useless Strip of Land?:
– Maybe realpolitik reasons. Perhaps to stir up national pride. Perhaps to prevent the native landowners from crossing over into other sovereign territory.
– Why take the dispute to a court?:
– It’s a way to resolve the dispute without resorting to war.
– What Does the ICJ Rely on in its opinion?:
– The ’55 treaty between Lybia and France (Chad is the successor to France) controls. The Treaty determines a permanent frontier, even though the Treaty was not specifically about the Aouzou Strip..
– Court is concerned with the fundamental importance of the stability of boundaries.
– Chad has a consistent position on its understanding of the border. It kept bringing up the issue.
– Consent and Colonialism:
– DH: If the concern is about consent, we might not be worried about Chad because it’s consenting to the boundaries set by the ’55 Treaty.
– Plus, Lybia was an equal state when it negotiated the Treaty with France. As a formal matter, all states are created equal for the purposes of international law.
– If the ICJ Hadn’t had the Treaty, what might it have looked to? Three Things:
1. Which state had occupied the land.
2. The state the local population identifies with.
3. Which state had administered the land.
– What Significance Does this Dispute Have for International Law ?:
– Good things: the ICJ helped end the dispute peacefully, and the parties accepted the decision.
– May demonstrate the respect for boarders.
1.4 Rainbow Warrior Case
– Background:
– France blows up a Greenpeace ship, killing a guy. Two of their agents are captured and sentenced in New Zealand to 10 years in prison. France wants their return and New Zealand says no.
– Resolution:
– UN Secretary-General exiles the two agents to a French military base for three years. France has to apologize and give full reports to New Zealand.
– Two arbitrators give Greenpeace $6.2m
– Ultimately, neither one of the two agents ends up exiled for three years. One is evacuated for being sick, the other for being pregnant.
– Both Nations Adopt the Decision Quickly (3 days):
– Isn’t that odd? Yes — the countries were negotiating in the background. It sounds like the Sec.-Gen. is just a front man for publicizing an agreement that the parties have already reached themselves.
– Why Would France Agree to Ad Hoc Arbitration?:
e permitted — in other words, a SUPER-CUSTOM because it’s binding and it trumps all other norms of international law) violated. The prohibition on the use of force was such a jus cogens.
1. One view: Article 2(4) codifies jus cogens. Restates customary international law.
2. Another view: Article 2(4) is evidence of jus cogens. Contributes to the emergence of customary international law.
The ’74 Turkish Invasion
– Greece Says:
– Invasion is a violation of Article 2(3) and 2(4) of the Charter of UN — Members have to restrain from the use of force or the threat of use of force.
– Turkey did not correctly act under Article 4 of the Treaty because it didn’t consult with Greece or the UK, and Turkey didn’t act to reestablish the ’60 state of affairs.
– Article 39 of the Charter: the UN gets to decide about the use of force in security situations.
– Article 103: in the event of a conflict between obligations of the Members and the Charter, the obligations under the Charter prevail.
– Turkey Says:
– Acted pursuant to Article 4 of the Treaty. The Greek Cypriots acted unilaterally to alter the state of affairs in ’60 with the coup.
– Didn’t violate Article 2 of the UN Charter. Turkey’s invasion was to preserve the territorial independence of the state; the Treaty of Guarantee gives Turkey the right to intervene.
