International Dispute Settlement : ICJ and

ICC

Dispute settlement as a primary purpose of the UN

Charter
Art.2(3) of the UN Charter provides that all
membersshall settle their international disputes by
peaceful means in such a manner that international
peace and security ,and justice , are not endangered.

Means of peaceful settlement

Art.33 of the UN Charter:
1. solution by negotiation
2. Inquiry
3. mediation
4. conciliation
5. arbitration
6. judicial settlemnt

Judicial settlement and ICJ

The first standing judicial tribunal with general jurisdiction to
resolve disputes was PCIJ created by the League of Nations in
1922. The ICJ as the highest judicial organ was created under
the UN Charter as successor to PCIJ
The ICJ is the principal judicial organ of the UN and is to
provide representation of the main form of civilization and of
the principal legal systems of the world.

Applicable laws by the ICJ

Art.38 of the statute directs the court to apply the primary and
subsidiary sources of international law
1. International conventions
2. international custom
3. the general principles of law recognised by civilized nations
4. Judicial decisions
5. Teachings of the most highly qualified publicists

Organization of the ICJ

Art. 2 of the ICJ Statute: The Court shall be composed of a body of independent
judges, elected regardless of their nationality from among persons of high moral
character, who possess qualifications required in their respective countries for
appointment to the highest judicial offices, or are jurisconsults of recognized
competence in international law.
The Court shall consist of fifteen members, no two of whom may be nationals of
the same state ( Art.3 of the ICJ statute).
The Court may from time to time form one or more chambers, composed three or
more judges as the Court may determine, for dealing with particular categories of
cases ( Art.26 (1) of the Statute). This is a chamber of special categories of cases.
The Court may at any time form a chamber (ad hoc) for dealing with a particular
case. The number of judges to constitute such a chamber shall be determined by the
Court with the approval of the parties (Art.26 (2) of the Statute).

Continued.
Ad hoc judges can sit on contentious cases before the Court.
Any party to the contentious case is allowed to nominate a
judge of their own choice, if a judge of their nationality is not
already on the bench ( Art.31 of the Statute).

Jurisdiction of ICJ
ICJ has jurisdiction in two types of cases: contentious cases and advisory
opinions.
Contentious cases are those which involve a dispute between states. The
jurisdiction of the ICJ comprises all cases which the state parties refer to it.
The principle is that Court only has the jurisdiction on the basis of consent.
Therefore a state may refer a matter to the Court in various ways:
1. consent may be given by a special agreement. The Continental ( The
North Sea Continental Shelf Cases provide an example of a special agreement
enabling ICJ to declare the principles applicable to the delimitation of a common
continental shelf between adjacent states.)

Continued
2. At the event of unilateral application to the court by a state, another state

may expressly or by implication agree to the jurisdiction of the court over a

given dispute. In Corfu Channel case, for example, in response to the UKs
unilateral application, Albania wrote to the court agreeing that it would
despite the irregularityappear before the court.
3.States may be subject to ICJ in advance in bilateral and multilateral treaties.
4. Under Art. 36(2) of the ICJ Statute, the so called optional clause a state
may by declaration accept the jurisdiction of the court in relation to future
legal disputes. The ICJ founded its jurisdiction, for example, over the
application by the Democratic Republic of Congo against Uganda in the
Armed Activities on the Territory of Congo case 2005 on the declarations
made by both states accepting the compulsory jurisdiction of the court
under Art.36(2) of the ICJ statute.

Continued.
The optional clause in respect of legal disputes concerns:
a) the interpretation of a treaty;
b) any question of international law;
c) the existence of any fact which, if established, would constitute a breach
of an international obligation;
d) the nature or extent of the reparation to be made for the of an
international obligation.

Enforcement of judgements in contentious cases

Art. 59 of the ICJ statute: A decision of the court has no binding force
except between the parties and in respect of that particular case.
Each member of the United Nations undertakes to comply with the decision
of the International Court of Justice in any case to which it is a party ( Art.
94 of the ICJ statute)
If any party to a case fails to perform the obligations incumbent upon it
under a judgement rendered by the Court, the other party may have
recourse to the Security Council, which may, if it deems necessary , make
recommendations or decide upon measures to be taken to give effect to the
judgement (Art. 94)

Advisory opinions of ICJ

Art. 65(1) of the ICJ statute: The ICJ has discretion to give an advisory
opinion on any legal question at the request of whatever body may be
authorized by or in accordance with the Charter of the UN to make such a
request.
Under Article 96 of the statute, the GA and SC may request an opinion and
the GA may authorise other organs and specialized agencies to do so. The
function of advisory opinions is to provide guidance as to the legal
principles the UN organs and specialized agencies should apply when
carrying out their functions.
The ICJ has given 24 advisory opinions since 1946, the procedure proving
to be powerful means of articulating and developing the jurisprudence of
international law
The ICJ will not give an advisory opinion unless the questions put to it are
relevant and have a practical and contemporary effect and are not devoid of object.

Legal status of advisory opinion

An advisory opinion is not binding on the requesting organ. Gros J has
recognised that opinions of the ICJ are nonetheless more than legal
consultations.
Advisory opinions are available in the following contexts:

International Criminal Court ( ICC)

Background of international criminal tribunals
1. Nuremberg and Tokyo Trials ( under International Military Tribunals)
were established in 1945 and 1946 respectively to try those who are
responsible for war crimes in WWII.
2.International Criminal Tribunal for Yugoslavia ( ICTY) ( The Tribunal
was established under the SC resolution 827 and was granted jurisdiction
over grave breaches of Geneva Conventions 1949, violations of law and
customs of war, genocide and crime against humanity in former Yugoslavia
since 1991)
3. International Criminal Tribunal for Rwanda ( The Tribunal was
established under SC Re.955 in November 1994 and granted jurisdiction
over genocide, crimes against humanity and violations of Art. 3 common to
the 1949 Geneva Conventions and Additional Protocol II in Rwanda
between 1 January and 31 December of 1994.

The establishment of ICC

ICC, governed by the Rome Statute, is the first permanent , treaty based ,
international criminal court established to help end impunity for the
perpetrators of the most serious crimes of concerns to international
community.
On 17 July 1998, the international community reached an historic
milestone when 120 states adopted the Rome Statute, the legal basis for
establishing the permanent International Criminal Court.
The Rome Statute of International Criminal Court entered into force on
1July 2002 after ratification by 60 countries.
The ICC is an independent international organization, and is not part of the
UN system. Its seat is at the Hague in the Netherlands . The Courts
expenses are funded primarily by the state parties.

Jurisdiction of ICC
The ICC was granted jurisdiction over the most serious crimes of concern
to the international community as a whole that includes the crimes of
genocide, crimes against humanity, war crimes, and the crime of aggression
(Art.5 of the ICC statute).
The Court has jurisdiction only with respect to crimes committed after the
entry into force of this statute ( Art.11(1) ). Its jurisdiction is not
retroactive to crimes committed before the entry into force of the statute.
The jurisdiction of the ICC depends upon the consent of the state parties.
In accordance with Art.13 of the Statute , jurisdiction arises on the basis of
the three trigger mechanisms: reference to the Prosecutor by the state part,
reference to prosecutor by the Security Council, and the initiation of the
investigation by the Prosecutor
The jurisdictional functions of this Court is based on the principle of
complementarily.

Composition of the Court

The Court shall be composed of four organs such as the Presidency, an
Appeals Division, A Trial Division and a Pre-Trial Division, the Office of
the Prosecutor, and the Registry ( Art.34).
There shall be 18 juges of the Court ( Art.36).
All judges shall be elected as full-time members of the Court and shall be
available to serve on that basis from the commencement of their terms of
office.
The judges shall be chosen from among persons of high moral character ,
impartiality and integrity who possess the qualification required in the
respective state for appointment to the highest judicial offices. They also
shall have established competence in criminal law and procedures in any
capacity such as judge, prosecutor , or advocate or have established
competence in international humanitarian law and law of human rights.

Relationship with national judiciary

It is mentioned in the preamble that that international criminal
Court established under this statute shall be complementary to
national jurisdiction.
The case relating to the commission of any of the listed crimes
under statute can be admissible in ICC if the national court is
unwilling to carry out the investigation or prosecution which
has already been initiated by it.

Relationship with UN and Security Council

The Security Council, acting under Chapter VII, may refer a
situation to the Court ( Art.13). The word situation is
intended to minimize politicization of the court by naming
individuals.

International Criminal Law system and the US

International Human rights Law

What are human rights ?

Development and Classification of human rights
Difference between human rights and humanitarian law
International human rights in the UN Charter Regime
Collective or group human rights
Protection, implementation and promotion ( National and
International)

What are human rights ?

Human rights consist of some inalienable rights that come with an
individual as a human being since his birth. They are not simply created by
law as they are rights even before the law recognizes them.
All human beings have the same human rights and hold them equally and
inalienably. They can renounced, lost or forfieted.
The fundamental characteristics of human rights are : (1) inalienability, (2)
universality, and (3) interdependence.
International human rights law refers to the body of international law
designed to promote and protect human rights at the international, regional
and domestic levels.

Historical development of international human rights

Origin of human rights in national instruments:
1. Magna Carte 1215
2. Bill of Rights 1668
3. Declaration of American Independence, 1776 (We hold these truths
to be self-evident, that all men are created equal, that they are endowed by their Creator with
certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.-That to secure these rights, Governments are instituted among Men, deriving their just powers
from the consent of the governed)

4. Declaration of Rights of Man and of the Citizen Independence

(France) 1789. (Men are born and remain free and equal in rights. Social
distinctions may be founded only upon the general good ).

International Instruments of human rights after WW2

International Bill of Rights
1. Universal Declaration of Human Rights, 1948
2. International Covenant on Civil and Political Rights, 1966
3. International Covenant on Economic, Social and Cultural Rights, 1966
4. Optional Protocol to Civil and Political Rights, 1966
International Human Rights Treaties such as:
Convention on the Elimination of All Forms of Racial Discrimination
(1969)
Convention on the Elimination of All Forms of Discriminations Against
Women (1981)
United Nations Convention Against Torture (1987)

Classification of human rights

Three generation of human rights
1. First generation of human rights that mostly deal with
negative rights such as civil and political rights
2. Second generation of human rights that mostly concern
positive rights such as economic, social and cultural rights
3. Third generation of human rights are collective and
community rights such as environmental rights and
development which are loosely in the form of binding law .
4. Fourth generation of human right is liberation of
information, that means information must be free.

Civil and political rights

Civil and political rights (freedom of expression, freedom of
peaceful assembly, freedom from torture, freedom from
arbitrary arrest and detention, right to a fair trial, etc.) derive
from the natural rights philosophy of John Locke, Rousseau
and others.
They protect against encroachments of government.
These rights have traditionally been given priority by Western
States.

Economic, social and cultural rights

Economic, social and cultural rights (e.g., right to work, right
to education, right to access to health care) attained
recognition in the twentieth century with the advent of
socialism.
They argued that achievement of economic and social rights
was a pre-condition for other rights.
That is, until the economic and social rights were realized a
State was not in a position to provide civil and political rights.

Collective or group rights

Group or peoples rights emerged as recently as the 1970s and
are supported by developing countries.
The focus is on collective as opposed to individual rights.
The right to development and the right to self determination
are two main examples.
In the early 1970s, thanks to their numerical superiority, the
developing countries managed to elaborate their own
philosophy of human rights.

Human rights provisions in the UN Charter

Preamble: reaffirmed their faith in fundamental human rights,
in the dignity and worth of human person, in the equal rights
of men and women.
Article 1: the achievement of international cooperation in
promoting and encouraging respect for human rights and for
fundamental freedoms for all without distinction as to race,
sex, language, or religion.
Arts. 55 and 56 (All members pledge themselves to take joint
and separate action).

UDHR
The adoption by the General Assembly of the Universal Declaration of
Human Rights on 10 December 1948, by 48 votes to nil, with 8
abstentions.
The abstaining states were Saudi Arabia, South Africa and the communist
countries (Byelorussia, Czechoslovakia, Poland, Ukraine, USSR and
Yugoslavia).
Two main categories of human rights, namely:
civil and political rights [Articles 3 to 21] and
economic, social and cultural rights [Articles 22 to 27].
Obligatory force of this declaration is debatable
Under articles 55 and 56 of UN Charter State pledge to promote

ICCPR and ICESCPR

The International Covenant on Civil and Political
Right (ICCPR) and the International Covenant on Economic,
Social and Cultural Rights (ICESCR) were finally adopted by
the General Assembly on 16 December 1966. Both came into
force in 1976.
As of now, there are 165 State parties to the ICCPR and 160
States parties to the ICESCR.
Both Covenants contain a common article (Article 1)
reaffirming the right of self determination.

ICCPR

The ICCPR provides, among others, for the right of self-determination, the right to
life, the prohibition of torture, the prohibition of slavery and forced labour, the right
to liberty, the prohibition of arbitrary arrest and detention, the right equality before
the courts, the right to freedom of thought, conscience, religion and expression, the
right of peaceful assembly and the right to freedom of association including the
right to form and join trade unions, and the right to take part in the conduct of
public affairs, to vote and to be elected at elections.
The ICCPR imposes the obligation on States Parties to respect and to ensure to all
individualsthe rights recognized in the present Covenant [Art. 2(1)].
It also contains provisions obliging the Parties to undertake the necessary steps to
adopt such legislation or other measures as may be necessary to give effect to the
rights recognised in the Covenant. [Art. 2(2)]
Each State Party to the Covenant also undertakes to ensure that any person whose
rights are violated has an effective remedy, notwithstanding that the violation has
been committed by persons acting in an official capacity. [Art. 2(3)]
Art. 4: emergency threatening the existence of the state.

ICESCR
The ICESCR provides, among others, for right to work, right to safe and
healthy working conditions, right to social security, right to an adequate
standard of living, including food, clothing and housing, right to physical
and mental health, right to education, right to take part in cultural life , to
enjoy the benefits of science and to the protection of interest of authors
scientific, literary and artistic works.

Art.2 of the ICESCR demonstrate the relatively weak nature of the obligations
accepted by states compared with those of immediate implementation under the
ICCPR.

Art.2 says Each state party undertakes to take steps, individually or

through international assistance and cooperation, especially economic and
technical, to the maximum of its available resources, with a view to
achieving progressively the full realization of the rights recognized in the
Covenant by all appropriate means, including particularly the adoption of
legislative measures.

Regional protection of human rights

African system
Under African Charter on Human and Peoples Rights, the African
Commission is the quasi-judicial organ of African Union tasked with promoting
and protecting human rights and also interpreting the Charter.

Inter-American system
1. Inter-American Commission on Human Rights
2. Inter-American Court of Human Rights

European system
1. The Council of Europe ( state)
2.The European Court of Human Rights (state and individual)

International protection of human rights

Charter based bodies : United Nations Human Rights Council,
United Nations Special Rapporteur)
Treaty based committees ( Human Rights Committees under
different treaties Such as Human Rights Committees under
ICCPR)

Human Rights Committee

The Human Rights Committee, established under Article 28 of the
Covenant, has 18 members.
It has three main monitoring mechanisms:
(1) Compulsory reporting procedure whereby all State parties are obliged
to present reports (initial and period) indicating compliance with the
ICCPR;
(2) Optional inter-State complaints procedure; and
(3) Individual complaints procedure.

Difference between human rights and humanitarian law

Difference between rights and law. Rights must be protected
even in the absence of law.
Human rights are applicable both at war and peace time and
humanitarian law applies only a the time of armed conflict.
The state is the main violator of human rights while individual
can be violator of humanitarian.
Human rights are civil in nature while humanitarian law is a
part of international criminal law.
The sources of humanitarian law are different from that of
human rights.