[101] The International Court of Justice

History of International Courts

  • Permanent Court of Arbitration (PCA), 1899
  • Permanent Court of International Justice (PCIJ), 1920
  • International Court of Justice (ICJ), 1945

The establishment of a permanent court in contrast to an ad hoc court was “intended as a way to prevent outbreaks of violence by enabling easily accessible methods of dispute settlement in the context of legal and organisational framework to be made available” (Shaw, 1058).

The PCIJ was superseded after the WWII by the ICJ, the “principal judicial organ of the United Nations” as stipulated in Article 92 of the United Nations Charter. “In essence, [ICJ] is a continuation of the PCIJ, with virtually the same statute and jurisdiction, and with a continuing line of cases, no distinction being made between those decided by the PCIJ and those by the ICJ” (Shaw, 1058).

 

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The International Court of Justice (國際司法裁判所 or Cour internationale de Justice)

Seated in the Peace Palace Hague (Netherlands), the ICJ was established in June 1945 by the Charter of the United Nations and began work in April 1946. It is one of the six principal organs of the United Nations and the only one not located in New York (United States of America).

The Court’s role is to settle, in accordance with international law, legal disputes submitted to it by States and to give advisory opinions on legal questions referred to it by authorized United Nations organs and specialized agencies.

Access Official Website of ICJ HERE

i. Composition of the Court

The Court is composed of 15 judges, who are elected for terms of office of nine years by the United Nations General Assembly and the Security Council. It is assisted by a Registry, its administrative organ. Its official languages are English and French.

ii. Jurisdiction of the Court

The ICJ is “a judicial institution that decided cases on the basis of PIL as it exists at the date of the decision. As it is not a legislative organ, it cannot formally create law. Its views as to what the law is are of the highest authority” (Shaw, 1065).

The Court will examine three criteria in determining whether or not to accept jurisdiction:

  1. Consistency with the previous Case-law
  2. Certitude
  3. mindful of the possible implications and consequences for the other pending cases

The Court was “only concerned to establish that the dispute in question was a legal dispute ‘in the sense of a dispute capable of being settled by the application of principles and rules of international law.” “The fact that other elements are present cannot detract from the characterisation of a dispute as a legal dispute” (Shaw, 1066) The Court also “has been consistently clear that the fact that the issue before the Court is also the subject of active negotiations between the parties, or the subject of good offices activity by the UN Secretary-General, or the subject of consideration by the Security Council or regional organisations, will not detract from the competence of the Court or the exercise of its judicial function” (Shaw, 1066). The Court’s essential function is to “resolve in accordance with international law disputes placed before it” and to refrain from deciding points not included in the final submissions of the parties” (Shaw, 1067).

a. Legal Dispute

Article 36(2) of the ICJ Statute requires that a matter brought before it should be a legal dispute. In the Mavrommatis Palestine Concessions (Jurisdiction) case, the Court declared that a dispute could be regarded as ‘a disagreement over a point of law or fact, a conflict of legal views or of interests between two persons.’ “It is to be distinguished from a situation which might lead to international friction or give rise to a dispute” (Shaw, 1068). In the Interpretation of Peace Treaties case, the Court noted that ‘a mere assertion is not sufficient; it must be shown that the claim of one party is positively opposed by the other.’ In Spain v. Canada case (1998), the Court explained that ‘the determination on an objective basis of the existence of a dispute is for the Court itself.’ In Cameroon v. Nigeria (Preliminary Objections) case, it was made “clear that the exhaustion of diplomatic relations is not a prerequisite to going to the Court” (Shaw, 1070).

b. Admissibility

“Admissibility refers to the application of relevant general rules of international law, such as exhaustion of local remedies in cases concerning diplomatic protection. Objections to admissibility normally take the form of an assertion that, even if the Court has jurisdiction and the facts stated by the applicant state are assumed to be correct, nonetheless there are reasons why the Court should not proceed to an examination of the merits” (Shaw, 1072). With jurisdiction, admissibility forms “the necessary prerequisite to the Court proceeding to address the merits of a case” (Shaw, 1072).

c. Locus standi or Jurisdiction ratione personae

“Also of relevance in the pre-merits consideration of an application to the Court is the question of standing or jurisdiction ratione persone, a matter which logically arises before a consideration of jurisdiction and admissibility.

  • Article 34 of the ICJ Statute declares that only states may be parties in cases before the Court
  • The “question as to whether a party has the right to appear before the Court under the Statute is not dependent upon consent and is an issue which the Court itself must enquire into and determine prior to considering any objections to jurisdiction and admissibility” (Shaw, 1073).

Article 36(1) of the ICJ Statutes allows parties to “refer a particular dispute to teh ICJ by means of a special agreement, or compromis, which will specify the terms of the dispute and the framework within which the Court is to operate” (Shaw, 1075). “It is a well-established principle that the Court will only exercise jurisdiction over a state with its consent and it cannot therefore decide upon legal rights of third states not parties to the proceedings” (Shaw, 1078).

Pursuant to Article 79(9) of the Rules, the Court may dispose of a preliminary objection to jurisdiction by “(a) upholding the challenge, (b) rejecting the challenge, or (c) declaring that the objection does not possess, in the circumstances of the case, an exclusively preliminary character, in which case the matter will be dealt with together with a consideration of the merits” (Shaw, 1075).

iii. Evidence

Strict rules of admissibility of evidence present in domestic law is absent at the ICJ. The Court “has the competence inter alia to determine the existence of any fact which if established would constitute a breach of an international obligation.” However, it has “no power to compel production of evidence generally, nor may witnesses be subpoenaed, nor is there any equivalent proceedings for contempt of court” (Shaw, 1089). Even evidence which has been illegally or improperly acquired may also be taken into account. The rules are more flexible. The Court will make its own

  • determination of the facts and relevant rules of PIL
  • assessment of the weight, reliability, and value of the evidence produced by the parties
  • ascertainment of the ‘true subject of the dispute’ taking into consideration the submissions, applications, oral arguments, and other documents placed before it

Burden of Proof lies upon the party seeking to assert a particular fact or facts. The Applicant “must identify the interest of a legal nature in question and show how that interest may be affected. The actual standard of proof required will vary with the character of the particular issue of fact” (Shaw, 1091).

iv. Provisional Measures

Pursuant to Article 41 of the ICJ Statute, the Court “has the power to indicate, if it considers that circumstances so require, any provisional (or interim) measures which ought to be taken to preserve the respective rights of either party.” As determined in the LaGrand case,  provisional measures orders are binding until judgement on the merits.

  • Court need not finally satisfy itself that it has jurisdiction on the merits of the case
  • the provisions invoked by the Applicant must appear prima facie to afford a basis upon which the jurisdiction of the Court might be founded
  • the purpose of exercising this power is ‘to protect rights which are the subject of dispute in judicial proceedings’
  • Article 41 presupposes that ‘irreparable prejudice should not be caused to rights which are the subject of dispute in judicial proceedings’
  • this power can be exercised only if there is an ‘urgent necessity to prevent irreparable prejudice to such rights’

v. Remedial Powers of the Court

  • Declaratory Judgement that the Respondent has breached PIL
  • Reparation for losses suffered as a consequence of the illegal activities or damages for injury of various kinds, including non-material damage

 

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“Injustice Anywhere is a Threat to Justice Everywhere” – King, Jr.

Joining in 2010, Seungmin is a Founding Member of and Senior Partner at Yonsei ULS. Please be advised: the comment, writing, or column does not represent  the official position of YULS.

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[101] Subjects of PIL

Here we go again young masters of ULS. Let us begin with one of the most basic concepts in studying PIL – international legal personality and primacy of states as subjects of PIL.

 

What is a “Subject of PIL”? (法の 主體)

“an entity possessing international rights and obligations and having the capacity (a) to maintain its rights by bringing international claims; and (b) to be responsible for its breaches of obligation by being subjected to such claims” (Shaw, 115)

  • “an entity of a type recognized by customary law as capable of possessing rights and duties and of bringing and being subjected to international claims is a legal person” (Shaw, 115)

*** Conventional Definition unfortunately however, Circular : “while the indicia referred to depend in theory on the existence of a legal person, the main way of determining whether the relevant capacity exists in case of doubt is to inquire whether it is in fact exercised” (Shaw, 115)

(a) Reparation for Injuries case (1949) p 174, 179.

(b) ILC rejected the concept of ‘delictual capacity” (力) in the context of State Responsibility in 1998.

 

Legal Personality of a very Restricted Kind (制限的 格)

  • Capacity to make claims in respect of breaches of PIL
  • Capacity to make Treaties and Agreements valid on the international plane
  • Enjoyment of privileges and immunities from national jurisdiction

Entities enjoying partial rights and limited capabilities may have “legal personality (or Rechtsfähigkeit) of a very restricted kind.” (Shaw, 115) Organizations apart from States “may have these capacities and immunities if certain conditions are satisfied” (Shaw, 115).

  • Reparation for Injuries case (1949)
  • Waldock’s first report on the law of treaties noted the capacity of international organizations to become parties to international agreements, and this reflected the existing practice despite the fact that the scope of the Law of Treaties was ultimately limited to treaties of states.

Since then, international organizations have joined states as “a recognized category of legal persons, and this has facilitated acceptance of quite limited or marginal entities as such” (Shaw, 116)

 

Primacy of States as Subjects of PIL

Wolfgang Friedmann writes that “the world is today organized on the basis of the co-existence of States, and that fundamental changes will take place only through State action, whether affirmative or negative… This basic primacy of the State as a subject of international relations and law would be substantially affected, and eventually superseded, only if national entities, as political and legal systems, were absorbed in a world state.”

– The Changing Structure of International Law (1964)

We shall further discuss the definition of Statehood as defined in the 1933 Montevideo Convention on the Rights and Duties of States in our advanced studies.

 

Distinction between International Legal Personality and Domestic Legal Personality

An entity’s international legal personality cannot be deduced through its domestic legal personality and vice versa.

 

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“Injustice Anywhere is a Threat to Justice Everywhere” – King, Jr.

Joining in 2010, Seungmin is a Founding Member of and Senior Partner at Yonsei ULS. Please be advised: the comment, writing, or column does not represent  the official position of YULS.

#01 ULS Fall Session 2017

Session #01 @ Theology Hall Rm #B110

1830 – 2100 HRS

13 SEP 2017 (水)

SUN, SEULBIN, HYEJI, GABIN, DANIEL, JAMES, AND SEUNGMIN

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Agendas

  • Intro to Yonsei Underwood Law Society
  • Welcoming of New Junior Associates to ULS (Seulbin Hong & Hyeji Jung)
  • Extensive Review on Sources of PIL

Reading Assignment [ 90 pages, 114 HRS ]

  • International Environmental Law (Shaw, 618 – 632, 641 – 643p)
  • International Court of Justice (Shaw, 1057 – 1097, 1101 – 1117p)
  • [Advanced] H.L.A. Hart, Positivism and the Separation of Law and Morals
  • [Advanced] Lon L. Fuller, Positivism and Fidelity to Law

Answer Keys to Interview Questions : HERE

Next Session : 18 SEP 2017 (月) 1830 HRS @ Yonsei Theology Hall

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YONSEI UNDERWOOD LAW SOCIETY “PACTA SUNT SERVANDA”

#013 ULS Board Meeting

via video conference

2300 – 2500 HRS

08 SEP 2017

SUN, GABIN, DANIEL, JAMES, AND SEUNGMIN
Bambie

“Heard ULS doesn’t discriminate.”

ULS Fall Recruiting 2017

  • Extended Interview
    • Compromis and Sources in further detail (Application)

ULS Study Session #001

  • Date & Time : 1800 HRS, 13 SEP 2017 (水)
  • Reading Material & Assignment : Sources, Malcolm N. Shaw + Compromis

ULS Workshop / Retreat

  • 2 days out of 29, 30 SEP 2017 (金, 土) + 01 OCT 2017 (土, 日)
  • Venue : Adjacent Locale to Yonsei University or Remote Pension House
    • Welcoming Party and Greetings from ULS (Outdoor Barbecue Party)
      • Orientation and QNA
        • Philip C. Jessup Moot Court videotape
    • DAY #001
    • Sources Review (Explanation of the Interview Answers/ Lecture) [ 2 HRS ]
    • Compromis and Rules Overview Part I & Part II (Activity) [ 5 HRS ]
    • Mini Mock Trial Preparation [ – until lights out ]
      • Release of Problem and Division of Teams
      • “The Case of the Overcrowded Lifeboat”
    • DAY #002
    • Mini Mock Trial (Activity) [ 2 HRS ]
    • Learn to Read a IRAC (Activity) [ 3 HRS ]
    • Legal Research and Citations (Lecture) [ 2 HRS ]

Meet with UIC Alumni

  • Best scenario : ***

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YONSEI UNDERWOOD LAW SOCIETY “PACTA SUNT SERVANDA”

LLM in Europe

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General Requirements for Application

  • Personal Statement
  • CV
  • 2 Letter of Recommendations

 

[ #005 ]     [ Back to Journal Entries ]     [ #007 ]

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“Injustice Anywhere is a Threat to Justice Everywhere” – King, Jr.

Joining in 2010, Seungmin is a Founding Member of and Senior Partner at Yonsei ULS. Please be advised: the comment, writing, or column does not represent  the official position of YULS.

#012 ULS Board Meeting

@ Yonsei Starbucks Baekyangro

1830 – 2300 HRS

30 AUG 2017

SUN, GABIN, DANIEL, JAMES, AND SEUNGMIN

KakaoTalk_20170830_220447765

Agenda

  • Completion of Reading Packet + Interview Prep
    • PACKET ONE : Compromis + Reading Material ()
    • PACKET TWO : IRACs + Case Briefs + Rules
    • SYLLABUS : Fall Semester + ULS Retreat
    • Packet for Interview (THURS) – edited by Seungmin ()
  • Completion of Syllabus, Member List, and Confirmation of Session Time ()
  • Update ALL IRACs on ULS Google Cloud
    • Exhaustion of Local Remedies
      • When is a State required to exhaust local remedies in order to appear before the ICJ?
      • Does this rule apply to Amalea? Is Amalea required to exhaust local remedies in Ritania prior to seeking relief at the ICJ?
    • Provisional Measures
      • When is a PM granted?
      • How can Ritania make use of the fact that Amalea’s request for PM was denied by the ICJ? How would Amalea refute against such claim?
  • Guidelines of Assessment ()
    • Brief announcement will be made to Applicants via text

Next Meeting : IRACs and Case Briefs due 04 SEP 2017 (月)

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YONSEI UNDERWOOD LAW SOCIETY “PACTA SUNT SERVANDA”

[IRAC] Whether EIGP’s dredging can be attributable to Ritania

IRAC is an acronym for [Issue + Rule + Analysis + Conclusion], a smart documenting technique often used when displaying research results conducted to answer critical legal questions. In this IRAC, we shall attempt to decide on Amalea’s best offence strategy by determining which acts and omissions of Ritania may be held responsible and liable under public international law.  

Acts and Omissions at Issue :

  • Approval of EIGP(Excelsior Island Gas & Power Limited)’s Project by Ritania’s Department of Resource Management (DRM) in the absence of an Environmental Impact Assessment (EIA) considering possible trans-boundary effects
  • Dredging Activity by EIGP in the Malachi Gap [ ACT ]
  • Ritanian Ambassador’s failure to cooperate to Amalean authorities’ request to assess trans-boundary effects of the proposed Project

Setting aside the illegality of the acts and omissions listed above (primary obligations) which will be determined in a separate IRAC by Gabin, here we shall analyze whether if the dredging activity of EIGP – a company wholly-owned by a private individual Esmerald Kali – is attributable to the Respondent State – Ritania.  

Analysis :

Should legal counsel for Amalea choose to argue that the dredging activity of EIGP is attributable to Ritania, she is bound to run into several problems. 

Theoretically, it can be argued that the approval of the specific dredging activity of such scale within shared waters where sovereign rights of two coastal states co-exist must be understood as a “governmental authority” under Ritania’s Department of Resource Management (DRM) which has been delegated to a private entity, EIGP. However, it seems that not a single article from ARSIWA is directly applicable to convincingly find the acts of EIGP as attributable to Ritania. 

Nowhere in the Compromis is it indicated that the energy business is government owned or  As a general principle, the conduct of private persons or entities is not attributable to the State under international law.

Article 8 of ARSIWA “Conduct directed or controlled by a State” cannot be applied for EIGP is no evidence to suggest that “in fact acting on the instructions of, or under the direction or control of, that State in carrying out the conduct” – Ritania. There is no evidence to suggest the existence of “a specific factual relationship [a real link] between the person or entity engaging in the conduct and the State.” 

In one case before the Iran-United States Claims Tribunal, an autonomous foundation established by the State held property for charitable purposes under close governmental control; its powers included the identification of property for seizure. The Tribunal held that “[i]n its establishment, governance, and objectives, the Foundation thus appears to be an instrumentality of the Government of Iran.” The Foundation could proceed with discovery, seizure, removal, maintenance, inventory taking, assessment, change for the better, and every other action required for the management of the Pahlavi family and related persons’properties. This Foundation was subject to considerable oversight by the Iranian government; its officers were appointed, dismissed, and directed by an officer appointed by Khomeini, its financial and business affairs were supervised by the office of the Iranian prime minister and its accounts were subject to government audit.” It was held that this Foundation was a public and not a private entity, and therefore within the tribunal’s jurisdiction; with respect to its administration of allegedly expropriated property, it would in any event have been covered by article 5 (Hyatt International Corporation v. The Government of the Islamic Republic of Iran, Iran-U.S. C.T.R., vol. 9, p. 72, at pp. 88–94
(1985))

It is questionable whether Amalea could cite Iran-United States Claims Tribunal, but rather Ritanian representation will quote it to argue the independent characteristics of EIGP from the Ritanian government.  

Canada – Dairy (Art. 21.5 II), WTO Appellate Body (US v. Canada) (2001)

“… in support of its finding that Canadian provincial marketing boards acting under the explicit authority delegated to them by either the federal Government or a provincial government were “agencies” of those Governments in the sense of… , even if they were not formally incorporated as Government agencies.

“irrespective of the role of private parties… the obligations… remain obligations imposed on Canada… The question is not whether one or more individual milk producers, efficient or not, are selling CEM at a … The issue is whether Canada, on a national basis, has respected its WTO obligations”

 

International Arbitral Tribunal (under the ICSID Convention) Maffezini v. Kingdom of Spain (1997)

… in deciding whether the acts of the private corporation Sociedad para el Desarrollo Industrial de Galicia (with which the claimant had made various contractual dealings) were imputable to Spain, referred to draft article 7, paragraph 2, adopted by the ILC on first reading:

“a State will not necessarily escape responsibility for wrongful acts or omissions by hiding behind a private corporate veil.”

(ARSIWA Article 7 deals with the subject of acts performed by “agents” within the meaning of ARSIWA Article 5 which exceed the brief given to the entity in question by the state)

Due to the fact that EIGP cannot be categorized as a public corporation, semi-public entity, or a public agency of various kind, the question lies in whether “dredging” should be considered as a “function of a public character normally exercised by State organs.”

Article 5 of ARSIWA “Conduct of persons or entities exercising elements of governmental authority” states the “conduct of a person or entity which is not an organ of the State under article 4 but which is empowered by the law of that State to exercise elements of
the governmental authority shall be considered an act of the State under international law, provided the person or entity is acting in that capacity in the particular instance.”

Although Article 5 – at first sight – seems more promising, the commentaries seem to exclude its applicability to this specific circumstances. Article 5 was “intended to take account of the increasingly common phenomenon of para-statal entities, which exercise elements of governmental authority in place of State organs” Even in special cases, private companies may qualify as an “entity” under Article 5, “provided that in each case the in each case the entity is empowered by the law of the State to exercise functions of a public character normally exercised by State organs, and the conduct of the entity relates
to the exercise of the governmental authority concerned.” For example, in some countries private security firms may be contracted to act as prison guards and in that capacity may exercise public powers such as powers of detention and discipline pursuant to a judicial sentence or to prison regulations. Private or State-owned airlines may have delegated to them certain powers in relation to immigration control or quarantine. Article 5 has increased in relevance as the modern state has outsourced increasing numbers of what would classically have been considered government functions, resulting in the creation of para-statal entities. “Commentary (6) of Article 5 does not attempt to identify precisely the scope of “governmental authority” for the purpose of attribution of the conduct of an entity to the State. Beyond a certain limit, what is regarded as “governmental” depends on the particular society, its history and traditions. Of particular importance will be not just the content of the powers, but the way they are conferred on an entity, the purposes for which they are to be exercised and the extent to which the entity is accountable to government for their exercise. These are essentially questions of the application of a general standard to varied circumstances.” “For the purposes of article 5, an entity is covered even if its exercise of authority involves an independent discretion or power to act; there is no need to show that the conduct was in fact carried out under the control of the State.”

(i) Definition of Governmental Authority : 

(a) Content of the Powers

Crawford writes that “if a private person can perform the function without the government’s permission, it is not to be considered governmental.” EIGP was licensed by the Ritanian government to proceed with the dredging which was part of the Excelsior Island Project. 

(b) Manner in which they are conferred on the Entity

Specific examples of activities involving the exercise of governmental authority include “power of arrest, detention, and internal discipline.” The construction of an artificial island involving dredging can arguably be a sovereign act which rights that confer it are codified within UNCLOS. However, it is not one of the cited examples within ARSIWA.

(c) Purposes for which the Powers are to be Exercised

Crawford asks the question “has the power been bestowed in order to advance classically sovereign objectives?”

(d) Extent to which the Entity is publicly accountable for their Exercise

This part refers to “accountability, and the extent to which the government is entitled to supervise those on whose it has bestowed governmental authority.” The Compromis fails to provide any specificity into whether the Ritanian government had any supervisory power over EIGP’s Project. 

(ii) Empowered by the Law of the State :

As for the discussion on to whether EIGP was “empowered by the law of the State” under Article 5 of ARSIWA, the Compromis writes that “

 

Dredging

an excavation activity usually carried out underwater, in shallow seas or freshwater areas with the purpose of gathering up bottom sediments and disposing of them at a different location.

Dredging can create disturbance to aquatic ecosystems, often with adverse impacts. In addition, dredge spoils may contain toxic chemicals that may have an adverse effect on the disposal area; furthermore, the process of dredging often dislodges chemicals residing in benthic substrates and injects them into the water column.

The activity of dredging can create the following principal impacts to the environment:

  • release of toxic chemicals (including heavy metals and PCB) from bottom sediments into the water column
  • collection of heavy metals lead left by fishing, bullets, 98% mercury reclaimed [natural occurring and left over from gold rush era]
  • short term increases in turbidity, which can affect aquatic species metabolism and interfere with spawning. Suction dredging activity is allowed only during non-spawning time frames set by fish and game (in-water work periods)
  • secondary impacts to marsh productivity from sedimentation
  • tertiary impacts to avifauna which may prey upon contaminated aquatic organisms
  • secondary impacts to aquatic and benthic organisms’ metabolism and mortality
  • possible contamination of dredge spoil sites
  • changes to the topography by the creation of “spoil islands” from the accumulated spoil
  • releases toxic compound Tributyltin, a popular biocide used in anti-fouling point banned in 2008, back into the water

The nature of dredging operations and possible environmental impacts cause the industry to be closely regulated and a requirement for comprehensive regional environmental impact assessments with continuous monitoring. The U.S. Clean Water Act requires that any discharge of dredged or fill materials into “waters of the United States,” including wetlands, is forbidden unless authorized by a permit issued by the Army Corps of Engineers. As a result of the potential impacts to the environment, dredging is restricted to licensed areas only with vessel activity monitored closely using automatic GPS systems.

  • China Harbour Engineering, China
  • Jan De Nul, Belgium
  • DEME, Belgium
  • Royal Boskalis Westminster, Netherlands
  • Van Oord Dredgign and Marine Contractors, Netherlands

……..

In Certain activities carried out by Nicaragua in the Border Area (Costa Rica v. Nicaragua), the dredging activity was in fact attributed to the Nicaraguan government. Further research is required as to why such was the case. Should it bear similarities to our case, this has the potential to be argued as a controlling case.  

In 1872 Alabama Arbitration (Great Britain v. US), Great Britain was held liable for permitting the construction in Liverpool of the CSS Alabama, a Confederate commerce raider that caused considerable damage to Union interests… That Great Britain has in this case failed, by omission, to fulfill the duties prescribed in the first and the third of the rules established by the VIth article of the Treaty of Washington (neutrality).

Zafiro case (Great Britain v. U.S.), 6 R.I.A. 160 (1925), 160 dealt with “conduct authorized by the State: the acts of the individuals or groups can be attributable if they are empowered by local law to act on behalf of the state and are so doing.” ILC gives the Zafiro case as an example of this type of situation, where a private ship was utilized by the USA during its war with Spain in 1898. However, this is an example of acts of private individuals where they are utilized by state agencies for police, public order or other state functions as where private citizens are enlisted for a police search and then cause injury to a foreign national.

In Corfu Channel case, the Court “considered circumstantial evidence and remarked that “this indirect evidence is admitted in all systems of law, and its use is recognized by international decisions” (ICJ Reports 1949 p 4, 18.).

Ritania’s Response :

In light of this assessment, Ritania will question whether if the acts of EIGP can be considered as an exercise of state authority under ARSIWA. Under ARSIWA, the rules are “cumulative but… also limitative. In the absence of a specific undertaking or guarantee (which would be a lex specialis, a State is not responsible for the conduct of persons or entities in circumstances not covered by” ARSIWA. The cited cases above hardly seem to be controlling. Ritania should and will attempt to limit the scope of the issue as a matter of whether Ritania exercised “due diligence” in authorizing the construction of the Excelsior Island for insofar as such responsibility has been satisfied, Ritania has not incurred any state responsibility under PIL. The Compromis is clear on that EIGP is Esmerald Kali’s “wholly owned” private project company (para 20).

In the alternative, Amalea may strategically choose to argue that despite the fact that Ritania may have had the right to conduct dredging activity within the Malachi Gap, the manner in which it licensed and authorized the project was in violation of PIL. This point concerning the obligation to not cause trans-boundary harm and due diligence will be discussed in a separate IRAC.  

Conclusion :

Pursuant to Article 5 of ARSIWA, Amalea may attempt to argue that the dredging activity of EIGP is attributable to Ritania. Further research is required as to why the dredging activity in Costa Rica v. Nicaragua (2015) was found attributable to Nicaragua for this may be a controlling case for our dispute.

However, falling short of such discovery, it is fair to say that the facts within the Compromis are lacking to sufficiently support Amalea’s claim of attribut-ability and Ritania will argue this point. 

 

Rules :

Draft Articles on Responsibility of States for Internationally Wrongful Acts, with commentaries 2001 (ARSIWA)

  • Article 2
    • There is an internationally wrongful act of a State when conduct consisting of an action or omission:
      1. is attributable to the State under international law; and
      2. constitutes a breach of an international obligation of the State
  • Commentaries to Article 2

(2) These two elements were specified, for example, by PCIJ in the Phosphates in Morocco case. The Court explicitly linked the creation of international responsibility with the existence of an “act being attributable to the State and described as contrary to the treaty right[s] of another State”.

ICJ has also referred to the two elements on several occasions. In the United States Diplomatic and Consular Staff in Tehran case, it pointed out that, in order to establish the responsibility of the Islamic Republic of Iran:
“[f]irst, it must determine how far, legally, the acts in question may be
regarded as imputable to the Iranian State…”

Similarly in the Dickson Car Wheel Company case, the Mexico-United States General Claims Commission noted that the condition required for a State to incur international
responsibility is “that an unlawful international act be imputed to it, that is, that there exist a violation of a duty imposed by an international juridical standard”.

(4) Conduct attributable to the State can consist of actions or omissions. Cases in which the international responsibility of a State has been invoked on the basis of an omission are at least as numerous as those based on positive acts, and no difference in principle exists between the two.

(5) For particular conduct to be characterized as an internationally wrongful act, it must first be attributable to the State. The State is a real organized entity, a legal person with full authority to act under international law. But to recognize this is not to deny the elementary fact that the State cannot act of itself. An “act of the State” must involve some action or omission by a human being or group: “States can act only by and through their agents and representatives” (German Settlers in Poland, Advisory Opinion, 1923, P.C.I.J., Series B, No. 6, p. 22.). The question is which persons should be considered as acting on behalf of the State, i.e. what constitutes an “act of the State” for the purposes of
State responsibility.

(6) In speaking of attribution to the State what is meant is the State as a subject of international law. Under many legal systems, the State organs consist of different legal
persons (ministries or other legal entities), which are regarded as having distinct rights and obligations for which they alone can be sued and are responsible. For the purposes
of the international law of State responsibility the position is different. The State is treated as a unity, consistent with its recognition as a single legal person in international law. In this as in other respects the attribution of conduct to the State is necessarily a normative operation. What is crucial is that a given event is sufficiently connected to conduct (whether an act or omission) which is attributable to the State…

(12) In subparagraph (a), the term “attribution” is used to denote the operation of attaching a given action or omission to a State. In international practice and judicial decisions, the term “imputation” is also used. But the term “attribution” avoids any suggestion that the legal process of connecting conduct to the State is a fiction, or that the
conduct in question is “really” that of someone else.

 

  • Chapter II Attribution of Conduct to a State commentary

(2) In theory, the conduct of all human beings, corporations or collectivities linked to the State by nationality, habitual residence or incorporation might be attributed to the State, whether or not they have any connection to the Government. In international law, such an approach is avoided, both with a view to limiting responsibility to conduct which engages the State as an organization, and also so as to recognize the autonomy of persons acting on their own account and not at the instigation of a public authority. Thus, the general rule is that the only conduct attributed to the State at the international level is that of its organs of government, or of others who have acted under the direction, instigation or control of those organs, i.e. as agents of the State.

Brownlie, System of the Law of Nations: State Responsibility, Part I (Oxford, Clarendon Press, 1983), pp. 132–166; D. D. Caron, “The basis of responsibility: attribution and other trans-substantive rules”, The Iran-United States Claims Tribunal: Its Contribution to the Law of State Responsibility, R. B. Lillich and D. B. Magraw, eds. (Irvington-on-Hudson, N.Y., Transnational, 1998), p. 109; L. Condorelli, “L’imputation à l’État d’un fait internationalement illicite : solutions classiques et nouvelles tendances”, Recueil des cours…, 1984–VI (Dordrecht, Martinus Nijhoff, 1988), vol. 189, p. 9; H. Dipla, La responsabilité de l’État pour violation des droits de l’homme: problèmes d’imputation (Paris, Pedone, 1994); A. V. Freeman, “Responsibility of States for unlawful acts of their armed forces”, Recueil des cours…, 1955–II (Leiden, Sijthoff, 1956), vol. 88, p. 261; and F. Przetacznik, “The international responsibility of States for the unauthorized acts of their organs”, Sri Lanka Journal of International Law, vol. 1 (June 1989), p. 151.

(3) As a corollary, the conduct of private persons is not as such attributable to the State. This was established, for example, in the Tellini case of 1923. The Council of the
League of Nations referred to a Special Commission of Jurists certain questions arising from an incident between Italy and Greece. This involved the assassination on
Greek territory of the Chairman and several members of an international commission entrusted with the task of delimiting the Greek-Albanian border. In reply to question
five, the Commission stated that:
The responsibility of a State is only involved by the commission in its territory of a political crime against the persons of foreigners if the State has neglected to take all reasonable measures for the prevention of the crime and the pursuit, arrest and bringing to justice of the criminal.

(4) The attribution of conduct to the State as a subject of international law is based on criteria determined by international law and not on the mere recognition of a link of factual causality. As a normative operation, attribution must be clearly distinguished from the characterization of conduct as internationally wrongful. Its concern is to
establish that there is an act of the State for the purposes of responsibility. To show that conduct is attributable to the State says nothing, as such, about the legality or otherwise
of that conduct, and rules of attribution should not be formulated in terms which imply otherwise. But the different rules of attribution stated in chapter II have a cumulative effect, such that a State may be responsible for the effects of the conduct of private parties, if it failed to take necessary measures to prevent those effects. For example, a receiving State is not responsible, as such, for the acts of private individuals in seizing an embassy, but it will be responsible if it fails to take all necessary steps to protect the embassy from seizure, or to regain control over it (United States Diplomatic and Consular Staff in Tehran case) In this respect, there is often a close link between the basis of attribution and the particular obligation said to have been breached, even though the two elements are analytically distinct.

(6) In determining what constitutes an organ of a State for the purposes of responsibility, the internal law and practice of each State are of prime importance. The structure of the State and the functions of its organs are not, in general, governed by international law. It is a matter for each State to decide how its administration is to be structured and which functions are to be assumed by government. But while the State remains free to determine its internal structure and functions through its own law and practice, international law has a distinct role. For example, the conduct of certain institutions performing public functions and exercising public powers (e.g. the police) is attributed to the State even if those institutions are regarded in internal law as autonomous and independent of the executive government. Conduct engaged in by organs of the State in excess of their competence may also be attributed to the State under international law, whatever the position may be under internal law.

(7) The State as a subject of international law is held responsible for the conduct of all the organs, instrumentalities and officials which form part of its organization and act in that capacity, whether or not they have separate legal personality under its internal law.

 

  • Article 5 Conduct of entities empowered to exercise the governmental authority of a State
    • The conduct of a person or entity which is not an organ of the State under article 4 but which is empowered by the law of that State to exercise elements of the governmental authority shall be considered an act of the State under international law, provided the person or entity is acting in that capacity in the particular instance.
  • Commentaries to Article 5

(1) The article is intended to take account of the increasingly common phenomenon
of parastatal entities, which exercise elements of governmental authority in place of State organs, as well as situations where former State corporations have been privatized
but retain certain public or regulatory functions.

(2) The generic term “entity” reflects the wide variety of bodies which, though not organs, may be empowered by the law of a State to exercise elements of governmental
authority. They may include public corporations, semipublic entities, public agencies of various kinds and even, in special cases, private companies, provided that in each
case the entity is empowered by the law of the State to exercise functions of a public character normally exercised by State organs, and the conduct of the entity relates
to the exercise of the governmental authority concerned.
For example, in some countries private security firms may be contracted to act as prison guards and in that capacity may exercise public powers such as powers of detention
and discipline pursuant to a judicial sentence or to prison regulations. Private or State-owned airlines may have delegated to them certain powers in relation to immigration
control or quarantine.

In one case before the Iran-United States Claims Tribunal, an autonomous foundation established by the State held property for charitable purposes under close governmental control; its powers included the identification of property for seizure. It was held that it
was a public and not a private entity, and therefore within the tribunal’s jurisdiction; with respect to its administration of allegedly expropriated property, it would in any
event have been covered by article 5 (Hyatt International Corporation v. The Government of the Islamic Republic of Iran, Iran-U.S. C.T.R., vol. 9, p. 72, at pp. 88–94
(1985))

 

  • Article 8 Conduct carried out on the instructions of a State organ or under its direction or control
  • Commentaries to Article 8

As a general principle, the conduct of private persons or entities is not attributable to the State under international law. Circumstances may arise, however, where such conduct is nevertheless attributable to the State because there exists a specific factual relationship between the person or entity engaging in the conduct and the State. Article 8 deals with two such circumstances. The first involves private persons acting on the instructions of the State in carrying out the wrongful conduct. The second deals with a more general situation where private persons act under the State’s direction or control. Bearing in
mind the important role played by the principle of effectiveness in international law, it is necessary to take into account in both cases the existence of a real link between the person or group performing the act and the State machinery

 

  • Article 9 Certain conduct involving elements of governmental authority, carried out in the absence of the official authorities. 

These rules are cumulative but they are also limitative. In the absence of a specific undertaking or guarantee (which would be a lex specialis), a State is not responsible
for the conduct of persons or entities in circumstances not covered by this chapter. As the Iran-United States Claims Tribunal has affirmed, “in order to attribute an act
to the State, it is necessary to identify with reasonable certainty the actors and their association with the State”. This follows already from the provisions of article 2.

 

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“Injustice Anywhere is a Threat to Justice Everywhere” – King, Jr.

Joining in 2010, Seungmin is a Founding Member of and Senior Partner at Yonsei ULS. Please be advised: the comment, writing, or column does not represent  the official position of YULS.

 

Back to ULS IMCC 2017 ]

 

[101] Jurisdiction of States

Welcome voyager! Accessing this page is a great way to begin your studies for the interview as well as your sessions at Yonsei ULS. Provided below is a sample summary on State Jurisdiction (partial only) created by a now ULS Alumnus in the Spring of 2016. Examine the strengths and weaknesses of her strategy and make use of this knowledge to your advantage! Without further ado, let us delve straight in.

Definition of Jurisdiction (管轄權)

  • concerns State’s power to assert its sovereignty over the making of law, the enforcement of law, and the adjudication of legal issues WITHIN, and sometimes OUTSIDE, its territory under international law
  • Competence of a Court or Tribunal to try a case or deal with a dispute, criminal or civil, before it.
  • Central to State Sovereignty

Stemming from Sovereignty, State Jurisdiction (國家管轄權 or compétence d’Etat) indicates the totality of one State’s power enforceable over people, incidents, and objects. Therefore, theoretically, the delimitation of territory can be understood as deciding the extent or scope of State Jurisdiction. (This is viable of course only if we exclude discussions on extra-territorial jurisdiction)

States may (1) make laws covering everyone and everything within its territory, (2) try anyone within its territory, (3) enforce its laws against ANYONE that contravenes them, through acts such as seizure and arrest. Each power correspond to the following legal terms.

  1. Prescriptive or Legislative Jurisdiction (立法管轄權)
  2. Adjudicatory Jurisdiction (裁判管轄權)
  3. Enforcement Jurisdiction (行管轄權)

Prescriptive or Legislative Jurisdiction (立法管轄權)

A State’s power to prescribe rules is materialized through (1) legislation by the Legislature, (2) rules and orders prescribed by the Executive, and (3) decisions of the Judiciary.

A State prima facie possesses the power to prescribe laws within its territory based on her territorial sovereignty (intra-territorial jurisdiction or 域內管轄權). This is referred to as the Principle of Domestic Jurisdiction or Reserved Domain. However, extra-territorial jurisdiction (域外管轄權) aimed at application beyond a State’s territorial borders in where she has no sovereign powers is deemed logically impermissible.  

However, in the 1927 Lotus case which involved the collision and capsizing of the Turkish vessel Boz-Kourt by French vessel S.S. Lotus on the High Seas, PCIJ (Permanent Court of International Justice) denied France’s claim that Turkey had no jurisdiction over this incident for international law had not explicitly permitted the exercise of extra-territorial jurisdiction by stating the following:

Such a view would only be tenable if international law contained a general prohibition to States to extend the application of their laws and the jurisdiction of their courts to persons, property and acts outside their territory… But this is certainly not the case under international law as it stands at present.” – Lotus Case 1927 PCIJ

PCIJ had held that there was no general prohibition of extra-territorial jurisdiction under international law. In order to justify such practices of extra-territorial (prescriptive) jurisdiction, theories such as the following five were developed:

  • Territoriality Principle
  • Nationality Principle
  • Passive Personality Principle
  • Protective Principle
  • Universality Principle

Note that jurisdictional principles we will be discussing below solely apply to criminal unless stated otherwise, not civil jurisdiction of states. States are indeed not limited from extending its laws in civil matters to another State through conflict of law rules or private international law. (Civil law deals with personal claims tied to the public sphere) SOME view that customary international law (CIL) does not prescribe any particular regulations as regards the restriction of courts’ jurisdiction in civil matters.

(1) Territoriality Principle (Territorialisme or 屬地主義)

  • Absolute and Unassailable
    • the most established and applied jurisdictional basis in PIL
    • can be applied to civil matters as well
  • Everything and Everyone within a State’s Territory is subject to her jurisdiction under this principle
    • Irrespective of nationality of individuals
      • Article 2 of the Republic of Korea (ROK) Criminal Code (CC)
    • EXCEPT those that are excluded under Treaties or CIL i.e. diplomatic embassies or high commissions of foreign states
    • Article 22 of the Vienna Convention on Diplomatic Relations (1961) provides that authorities of host States may not enter them without the consent of the Head of Mission (Inviolability of Foreign Missions)
  • The principle also bars states from exercising jurisdiction beyond their borders, unless they have jurisdiction under other principles such as the principle of nationality, the passive personality principle, the protective principle, and possibly universal jurisdiction
  • Attempts to expand the Territoriality Principle include Article 4 of the ROKCC which states that vessels and aircrafts of Korean nationality shall be considered as her territory.
  1. Subjective Territoriality Principle (主觀的 屬地主義)
    • Principle that the State in where the criminal offence had been commenced may exercise criminal jurisdiction over the entirety of the crime, regardless of whether the crime is completed on its territory or elsewhere
    • Rationale: one constituent element of the crime itself took place in the territory of the State claiming territoriality principle
  2. Objective Territoriality Principle (客觀的 屬地主義)
    • Principle that the State in where the criminal offence had been completed may exercise criminal jurisdiction over the entirety of the crime, regardless of where the offence is initiated

*** It is possible for Subjective Territoriality Principle and Objective Territoriality Principle to compete

Compania Naviera Vascongado v. Steamship Cristina (1938)

Cristina, a Spanish ship, set sail from Spain and docked at a port in UK. Before its arrival in the UK, the Spanish government requested that it be arrested upon arrival by the British authorities. Appellants (Spanish company) sought an action for release of the ship, Spanish government objected, claiming that the action amounted to trying a sovereign State.

Held: a foreign sovereign State could not be subject to trial, directly or indirectly, without its consent. Hence, claim brought by appellants set aside.

Reasoning: British court treated the ship as a territory of Spain à territory of a State comprises not only its physical land mass, its seas, or its airspace, but also moving objects such as ships belonging to or registered in the State.

– Ademola Abass, Complete International Law (2012)

 

France v. Turkey (1927) PCIJ the SS Lotus Case (Objective Test)

A collision occurred on the high seas between a French vessel – Lotus – and a Turkish vessel – Boz-Kourt. The Turkish vessel sank and killed eight Turkish nationals on board. Turkish survivors were taken to Turkey on the Lotus. In Turkey, the French officer and the captain of the Turkish ship were charged with manslaughter. The French government protested, demanding the release of the French officer or the transfer of his case to the French Courts. Turkey and France agreed to refer this dispute to the jurisdiction of the PCIJ.

PCIJ: Offences, the authors of which at the moment of commission are in the territory of another State, are nevertheless to be regarded as having been committed in the national territory, if one of the constituent elements of the offence, and more especially its effects, have taken place there.

Ruling: Turkey did not violate international law by instituting criminal proceedings against French officer.

France alleged that the flag State of a vessel would have exclusive jurisdiction over offences committed on board the ship in high seas. The PCIJ disagreed. It held that France, as the flag State, did not enjoy exclusive territorial jurisdiction in the high seas in respect of a collision with a vessel carrying the flag of another State (paras 71 – 84). The Court held that Turkey and France both have jurisdiction in respect of the whole incident: i.e. there is concurrent jurisdiction.

– Ademola Abass, Complete International Law (2012)

 

R v. Blythe (1895) (Objective Test)

Defendant, who was in Canada wrote a letter to a girl under the age of 16, who was in the USA, persuading her to leave her father and come to him in Canada. Girl accepted. The man was tried in Canada.

Held: The defendant could not be tried in Canada of taking an underage girl because the offence was wholly committed out of the jurisdiction when the girl left her father’s household in consequence of the persuasion.

Court: The crime was committed in the USA when the girl left her father to come to Canada, the crime was completed only when the girl, then in the USA, accepted to leave.

– Ademola Abass, Complete International Law (2012)

 

R v. Treacy (1971) (Subjective Test)

The appellant, while on the Isle of Wright, posted a letter written by him and addressed to a Mrs X in West Germany, demanding money with menaces. The letter was received by Mrs X in West Germany and the appellant was charged with blackmail, contrary to Section 21 of the Theft Act 1968

House of Lords: the offence of blackmail had been committed by the appellant in that he had made a demand when he had written and posted the letter to Mrs. X.

The Law Lords had established English jurisdiction on the basis of the place where the crime was initiated

– Ademola Abass, Complete International Law (2012)

 

Director of Public Prosecutions v. Doot (1973)

Respondents, US citizens, had, by an agreement made abroad, imported cannabis resin into England, with the object of re-exporting it from there to the USA. No part of the agreement was made in England. At their trial, the appellants had claimed that the English courts had no jurisdiction given that the crime was completed when the agreement was reached abroad. The trial court rejected this claim and convicted them

Appeal court: reversed trial court decision, holding that the English courts had no jurisdiction to try the offence charged, since the essence of the offence was the agreement between the respondents to do the unlawful act, the offence was complete when the agreement had been made, and the agreement had been made abroad. The Crown appealed to the House of Lords.

House of Lords: held that the conviction was correct and appeal was allowed. the House of Lords ruled:

“…agreement made outside the jurisdiction of the English courts to commit and unlawful act within the jurisdiction was a conspiracy which would be tried in England if the agreement was subsequently performed, wholly or in part, in England. Although the crime of conspiracy was complete once the agreement had been made, nevertheless, the conspiratorial agreement remained in being until terminated by completion of its performance or by abandonment; accordingly where acts were committed in England in performance of the agreement that would suffice to show the existence of a conspiracy within the jurisdiction triable by the English courts. It followed that the crime of conspiracy had been committed by respondents in England.”

Reasoning: The Court of Appeal, had endorsed the subjective test – that is, a basis on where the crime was initiated – whereas the House of Lords had seemingly applied the objective test – that is, a basis on the place where the crime was completed.

– Ademola Abass, Complete International Law (2012)

Expansion of Territoriality Principle (屬地主義の 擴大)

  • Economic Entity Doctrine (單一經濟實體): insofar as the Holding Company of a Parent Company committing criminal offence is within the territory of the state, this Doctrine justifies the exercise of jurisdiction over the Parent Company by considering it as a legal person within the territory of the state
    • chiefly employed by the European Court of Justice (ECJ)
  • Effect Doctrine (效果理論): insofar as the effect is actually felt, this Doctrine justifies states’ exercise of jurisdiction over criminal offence regardless of where it had commenced or was completed
    • altering or expansion of Objective Territoriality Principle
    • chiefly employed by US Courts
      • Section 402 of the Restatement of the Law (Third), Foreign Relations Law of the United States:“a state has jurisdiction to prescribe law with respect to… (c) conduct outside its territory that has or is intended to have substantial effect within its territory.”

  • Implementation Doctrine (履行理論)
    • Agreements, concerted practices, decisions of associations of undertakings or abuses of dominant position which are conceived abroad by foreign undertakings fall within the EC jurisdiction if they concern or are implemented in the EU (ECJ)
    • In the case A. Ahlström Oy, the European Court of Justice divided the infringing conduct of companies into two elements: the formation of the agreement, decision or concerted practice and the implementation thereof. The Court stated that the decisive factor is the place where an agreement, decision or concerted practice is implemented and held that “if the applicability of prohibitions laid down under competition law were made to depend on the place where the agreement, decision or concerted practice was formed, the result would obviously be to give undertakings an easy means of evading those prohibitions”. The Court also stated that it was immaterial whether the producers used subsidiaries, agents, sub-agents, or branches inside the EU or acted directly on the EU market. The Court added that, accordingly, the Community’s jurisdiction to apply its competition rules to such conduct is covered by the territorial principle as universally recognized in public international law. Moreover, the Court rejected the parties’ arguments relating to international comity and observed that such arguments amounted to calling in question the Community’s jurisdiction to apply its competition rules to conduct such as found to exist in this case. – European Commission Round-table on Cartel Jurisdiction Issues, including the Effects Doctrine for Working Party No.3 of the Competition Committee

    • ROK Fair Trade Commission (FTC) also mentions both terms “effect” and “implementation” as a sign of reception towards this doctrine (2002국협0250)

 

Hartford Fire Insurance Co. v. California (1993)

Several British insurance companies colluded to pressurize US insurers into abandoning certain insurance policies, which were beneficial to customers but financially detrimental to the undertakers. Appellants argued that the USA had no jurisdiction on many grounds, including that some US laws explicitly excluded them from being sued. The trial court accepted this argument, but the Court of Appeals rejected it.

In an appeal to the Supreme Court, it was held that the Sherman Antitrust Act applied.

Justice Souter: it is well established by now that the Sherman Act applies to foreign conduct that was meant to produce and did in fact produce some substantial effect in the United States.

Note: Even if the offending act is lawful where it is committed, this does not prevent the application of the effect doctrine. Hence, in the Hartford Insurance case, the US Supreme Court rejected the plea of the appellants that the reinsurers’ conduct was lawful in the UK.

– Ademola Abass, Complete International Law (2012)

 

Licra v. Yahoo! (2000) Tribunal de Grande Instance de Paris

Two French anti-Semitism organizations brought an action against Yahoo! US, Yahoo! France, and a French firm. They argued that Yahoo! allowed the auction of Nazi memorabilia on its website, which was accessible to French citizens. It was not in dispute that the organization was based in the USA, that the website was homed there, and that none of the acts had been committed in France. The only link to France was that the website was accessible to people in France. Under Article R645-1 of the French Code Penal, the wearing or public exhibition of Nazi-related items is a crime.

The French Superior Court held that it had jurisdiction:

By permitting (anti-Semitic) objects to be viewed in France and allowing surfers located in France to participate in such a display of items for sale, the Company Yahoo! Inc. is therefore committing a wrong in the territory of France, a wrong whose unintentional character is averred but which has caused damage to be suffered by LICRA and UEJF, both of whom are dedicated to combating all forms of promotion of Nazism in France

– Ademola Abass, Complete International Law (2012)

*** Effect Doctrine and Implementation Doctrine all complement the perceived weakness of the Economic Entity Doctrine which requires the physical presence of the holding company within the territory of the State

 

(2) Nationality Principle (屬人主義)

  • Principle that claims state jurisdiction over not only nationals within her territory, but also nationals abroad
    • the scope of “Nationality” may be an issue of dispute
      • In most cases, a person can become a national either because he or she is born in the territory of the state (jus soli) or because his or her parents were born in the territory of the state (jus sanguinis)
      • Naturalization through satisfying the requirements set out by the concerned state is also an option
        • Dual Citizenship is possible only when both states permit it
        • Common caveat of dual citizenship includes the fact that the holder is not protected by one state’s law against another’s
      • Legal requirements for granting nationality is within the “reserved domain” or sovereign powers of each state and not PIL
  • Continental Law States (大陸法系) treat Territoriality Principle and Nationality Principle equally and employ both, whilst Anglo-American Law States (英美法系) chiefly employ Territoriality Principle and Nationality Principle in exceptional circumstances only
    • sometimes the national state may require the conduct in question to be also a crime in the place where it was committed (lex loci)
  • Generally applies in cases where the State abode of a criminal refuses to prosecute a crime committed by that person, either because:
    1. offence committed is not a crime under its own law; or
    2. simply for lack of interest in that matter

 

Liechtenstein v. Guatemala (Second Phase) (Judgment) (1955) ICJ (The Nottebohm Case)

A month after the start of World War II, Nottebohm (plaintiff), a German citizen who had lived in Guatemala (Defendant) for 34 years, applied for Liechtenstein (plaintiff) citizenship

Facts. Nottebohn (P), a German by birth, lived in Guatemala (D) for 34 years, retaining his German citizenship and family and business ties with it. He however applied for Liechtenstein (P) citizenship a month after the outbreak of World War II. Nottebohm (P) had no ties with Liechtenstein but intended to remain in Guatemala. The naturalization application was approved by Liechtenstein and impliedly waived its three-year. After this approval, Nottebohm (P) travelled to Liechtenstein and upon his return to Guatemala (D), he was refused entry because he was deemed to be a German citizen. His Liechtenstein citizenship was not honored.  Liechtenstein (P) thereby filed a suit before the International Court to compel Guatemala (D) to recognize him as one of its national. Guatemala (D) challenged the validity of Nottebohm’s (P) citizenship, the right of Liechtenstein (P) to bring the action and alleged its belief that Nottebohm (P) remained a German national.

Issue: Must nationality be disregarded by other States where it is clear that it was a mere device since the nationality conferred on a party is normally the concerns of that nation?

Principle: Nationality is within the domestic jurisdiction of the State, which entitles, by its own legislation, the rules relating to the acquisition of its nationality…But on the other hand, a State cannot claim that the rules it has laid down are entitled to recognition by another State unless it has acted in conformity with the general aim of making the nationality granted accord with an effective link between the State and the individual.

– Ademola Abass, Complete International Law (2012)

 

(3) Passive Personality Principle (受動的 屬人主義)

PPP allows a State to exercise – albeit limited – jurisdiction over a “foreigner” and his or her criminal offence committed on “foreign” soil should it affect a national of that State.

  • Anglo-American Law States (英美法系) initially criticized the application of PPP, however, now have come to accept it in practice.
  • Article 6 of ROKCC also accepts PPP

** Note that the PCIJ did not comment in 1927 Lotus case on France’ claim that Turkey’s application of PPP was in violation of PIL.

** Also note that PPP is basing its claim on nationality principle whilst the Effect Doctrine is basing its claim on territoriality principle 

 

EEOC v. Arabian American Oil Co. (Aramco) 1991

Chief Justice Rehnquist: the presumption against extraterritoriality serves to protect against unintended clashes between our laws and those of other nations which could result in international discord.

Boureslan had been an employee of Arabian American Oil Co., working in Saudi Arabia. He was discharged, and afterward filed a suit in US District Court, claiming employment discrimination on the basis of race, religion and national origin, in violation of the 1964 Civil Rights Act. The district court dismissed, ruling that the Act did not have extraterritorial application. The Fifth Circuit affirmed, and the Supreme Court granted review.

Held: The 1964 Civil Rights Act does not apply to American employers abroad.

– Ademola Abass, Complete International Law (2012)

 

United States v. Cutting (1866) “The Cutting Case”

Mr. Cutting, an American, published in the USA some libellious materials about Mr. Barayd, a Mexican diplomat. Mr. Cutting was arrested, upon entering Mexico, imprisoned, and charged with libel under a novel jurisdictional heading now known as the ‘passive personality principle’. Although Mr. Cutting was eventually released, following high-powered representation made by the USA and guarantees that Mr. Cutting would not bring a civil claim for damages against Mexico, the incident became extremely important for the jurisdictional principle that it was thought to have established.

President Grover: The Cutting Case disclosed a claim of jurisdiction by Mexcio novel in our history, whereby any offense committed anywhere by a foreigner, penal in the place of its commission, and of which a Mexican is the object, may, if the offender be found in Mexico, be there tried and punished in conformity with Mexican laws.

The reaction of the USA to the assertion of extraterritorial jurisdiction (in the form of the passive personality principle) by Mexico should be understood in the context of its ancient reluctance to extend jurisdiction beyond its territory.

– Ademola Abass, Complete International Law (2012)

 

(4) Protective Principle (義)

Affirms state jurisdiction over extraterritorial conduct that endangers certain “national security interests” including “vital economic interests”

19th century: States began to assert ‘protective’ jurisdiction by their own and foreign nationals, committed abroad, which threaten or harm them. This principle faced heavy resistance early on but became very popular after a plethora of cases based on this principle surged in the USA.

Paragraph 33 of the US Restatement (Second), Foreign Relations Law of 1965: Protective principle gives a country the jurisdiction to prescribe a rule of law attaching legal consequences or the operation of its governmental functions, provided the conduct is generally recognized as a crime under the law of states that have reasonably developed legal systems

– Ademola Abass, Complete International Law (2012)

 

United States v. Zehe, 601 F. Supp. 196 (D. Mass. 1985)

Under international law, the “protective principle” gives a country the jurisdiction to prescribe a rule of law attaching legal consequences to conduct outside its territory that threatens its security as a state or the operation of its governmental functions, provided the conduct is generally recognized as a crime under the law of states that have reasonably developed legal systems.

– Ademola Abass, Complete International Law (2012)

  • In contrast to territoriality principle, the Protective Principle does not require the commencement or the completion of a criminal offence within any set territory.
  • In contrast to Effect Doctrine, there is no requirement that the effect of the criminal offence be felt on the territory of the State asserting jurisdiction. What is required is that the interest of that State, its security or functioning, wherever these may be located, are threatened by the crime.

 

United States v. Zehe (1985) District of Massachusetts

US government brought this criminal prosecution under the Espionage Act, against Alfred Zehe , an East German citizen for alleged acts of espionage against the USA committed in Mexico and the German Democratic Republic (GDR). Zehe moved for dismissal of the indictment, contending that the Act failed to confer jurisdiction over acts of espionage committed outside the US territorial boundaries by persons who are not US citizens.

Held: USA had jurisdiction over acts committed abroad, either by its own or foreign nationals, which threaten its security

Reasoning: …the courts expressly relied upon the nature of the offenses, and not just upon the citizenship of the defendants, in order to apply other criminal statutes extra-territorially to citizens.

Note: Zehe was arrested while attending a symposium in Boston. He was subsequently charged with conspiracy to obtain classified documents related to military technology and deliver them to a foreign government.

– Ademola Abass, Complete International Law (2012)

 

 

(5) Universality Principle (普遍管轄權)

Generally accepted in PIL the impact of certain crimes transcends the jurisdiction of any single State. When such crimes are committed, they invite the jurisdiction of any State.

  • A State may exercise universal jurisdiction over crimes which are neither committed against it, nor are committed by or against its own nationals
  • ONLY applied in the most limited and exceptional of circumstances

Paragraph 404 of the US Restatement (Third), Foreign Relations Law:

A State has jurisdiction to define and prescribe punishment for certain offences recognized by the community of nations as of universal concern, such as piracy, slave trade, attacks on or hijacking of aircraft, genocide, war crimes, and perhaps certain acts of terrorism.

 

Article 296 paragraph 2 of ROK CC (2013)

  • Key Element: the nature of the crime is such that it is of universal concern.
  • Key application: piracy jure gentium, genocide, slavery, terrorism, hostage-taking,  …
    • When piracy occurs on the high seas, it poses danger to all States; no single jurisdiction covers the high seas; hence, pirates prey on this somewhat ‘lawless’ zone

Indeed the application of the Universality Principle as recognized under PIL is not an obligation, but a right conferred on to each State. Consequently, a practice of either extraditing or prosecuting (aut dedere aut judicare) arose.

Article 5 Paragraph 2 of 1984 Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment

“Each State Party shall likewise take such measures as may be necessary to establish its jurisdiction over such offences in cases where the alleged offender is present in any territory under its jurisdiction and it does not extradite him pursuant to article 8 to any of the States mentioned in paragraph I of this article.”

France v. Turkey (1927) the SS Lotus Case

It does not, however, follow that international law prohibits a State from exercising jurisdiction in its own territory, in respect of any case which relates to acts which have taken place abroad…Such a view would only be tenable if international law contained a general prohibition to States to extend the application of their laws and the jurisdiction of their courts to persons, property and acts outside their territory, and if, as an exception to this general prohibition, it allowed States to do so in certain specific cases. But this is certainly not the case under international law as it stands at present. Far from laying down a general prohibition to the effect that States may not extend the application of their laws and the jurisdiction of their courts to persons, property and acts outside their territory, it leaves them in this respect a wide measure of discretion which is only limited in certain cases by prohibitive rules; as regards other cases, every State remains free to adopt the principles which it regards as best and most suitable.

 

Democratic Republic of Congo v. Belgium (2000) ICJ “The Arrest Warrant Case)

And those States and academic writers who claim the right to act unilaterally to assert a universal criminal jurisdiction over persons committing such acts, invoke the concept of acting as ‘agents for the international community’. The vertical notion of the authority of action is significantly different from the horizontal system of international law envisaged in the ‘Lotus’ case.

Summary: Belgium’s international arrest warrant against the Democratic Republic of Congo’s foreign minister was contended by the DRC on the ground that the arrest contravened international law by purporting to exercise jurisdiction over another state’s foreign minister and an order of provisional measures of protection on the ground that the warrant effectively prevented the foreign minister from leaving the DRC.

Issue: Where a foreign minister is suspected of humanitarian violations, does such a minister enjoy full immunity from criminal jurisdiction in another State’s court?

Held: Yes, where a foreign minister is suspected of humanitarian violations and even war crimes, such a minister enjoys full immunity from criminal jurisdiction in another state’s court. Acting as the state’s representative in international meeting and negotiations, travelling internationally and overseeing smooth running of the state’s diplomatic activities are duties which a foreign minister performs. The foreign minister also has the power to bind the state in the course of his duties and he must be in constant communication with his state and its diplomatic missions around the world as well as with representatives of other states. Hence, because of the office he holds and not because of his person, a minister is recognized under international law as a representative of the state. An acting Minister of Foreign Affairs enjoys full immunity from criminal jurisdiction and inviolability so that he or she may not be hindered in the discharge of his or her duties. The safety nest provided by this immunity is regardless of whether the purported crimes were committed in the minister’s official or private capacity and regardless of when the offense occurred. Hence on this premise, the argument of Belgium that immunities is not applicable to foreign ministers when they are accused of committing war crimes or crimes against humanity is nullified. Everything is procedural. Therefore, the minister may thus be brought before the courts in his/her own state and may lose his/her immunity once his/her state waives it. The minister also does not enjoy such immunity after he vacates office and may subsequently be charged for acts committed prior to or subsequent to the time he/she was in office as well as in respect of acts committed during the time he/she was in office in a private capacity. The International Criminal Courts may also try the minister where they have the jurisdiction to do so.

– Ademola Abass, Complete International Law (2012)

 

State of Israel v. Adolf Eichmann 1968 Israeli Supreme Court

Adolf Eichmann was a Nazi officer who was in charge of implementing the Nazi ‘final solution’ against Jews during the Second World War. Following the War, Eichmann escaped and lived for several years in Argentina under an alias, before being captured by the Israeli intelligence service. He was tried, convicted, and executed in Israel.

Eichmann had claimed that Israel had no jurisdiction since he was not an Israeli and the crimes were not committed in Israel, which State did not exist at the time of the crimes.

The Israeli Supreme Court convicted Eichmann on all fifteen counts, holding effectively that the nature of the crimes of which Eichmann was accused justified the extraterritorial jurisdiction of Israel. This was one of the earliest applications of universal jurisdiction principle.

Most recently à universal principle has been asserted in respect of human rights violations à erga omnes violations.

– Ademola Abass, Complete International Law (2012)

 

 

Enforcement Jurisdiction (執行管轄權)

A State’s exercise of the power to enforce rules through their application via administrative or judicial acts

  • Unlike prescriptive jurisdiction, enforcement jurisdiction cannot but be limited by territorial boundaries. Attempts of a state to enforce extra-territorial jurisdiction has a high probability of infringing upon another state’s sovereignty
  • Right to Visit vessels on the High Seas (臨檢權) & trials conducted abroad based on Status of Forces Agreement (SOFA) are examples of extraterritorial jurisdictions
  • Enforcement Jurisdiction may have limits or exceptions within a State’s own territory referred to as Immunities (免除)

 

 

Competing Jurisdictions (管轄權 競合)

The above five principles for jurisdiction may be claimed simultaneously by several states over a single incident and thus ‘compete.’ There exists no hierarchy amongst the five principles on criminal jurisdiction. Therefore, the possibility of multiple prosecutions in different states for a single criminal offence exists under PIL. Currently, due to Equality of Sovereign States, there is no Double Jeopardy (一事不再理 or 重危險  ) in PIL.

 

 

Problems of Illegal Enforcement Jurisdiction

Where a criminal wanted by one State is present on the territory of another State, the most traditional and acceptable means of retrieving such person is a class of conventions known as “Extradition Treaties” which are usually bilateral in nature.

When such treaties are not present, then the advance consent or acquiescence of the host State of the criminal is required before the claiming State can enter and seize the culprit

Complicated situations in reality indeed exist in where (1) a State that does not have an extradition treaty with another State may want to seize a person present on that State’s territory with full knowledge that the other State may not cooperate (kidnapping or abduction), (2) the culprit requested to be extradited has committed a crime on behalf of his or her home State, (3) Host State of the criminal benefits commercially from the presence of that criminal and may not want to extradite him.

Due to the fact that extradition treaties are very complicated and most of the times take long duration of time to execute, States may lean toward circumventing this process by invading and infringing upon the territorial integrity of the host State to forcibly take out the offenders. The hope is that diplomatic gestures and overtures after the act will resolve the serious diplomatic dispute that is bound to follow. Such cases are not infrequent.

R v. Horseferry Road Magistrates’ Court, ex p Bennet (1994)

Defendant, a citizen of New Zealand, who was alleged to have committed certain crimes in England, was traced to South Africa by the English police, and forcibly returned to England. There was no extradition treaty between the two countries and, although special arrangements could be made for extradition in a particular case, no such proceedings were taken. The defendant claimed that he had been kidnapped from the Republic of South Africa as a result of collusion between the South African and British police, and returned to England, where he was arrested and brought before a magistrates’ court to be committed to the Crown Court for trial.

Defendant sought an adjournment to enable him to challenge the court’s jurisdiction. The application was refused, and he was committed for trial.

He sought judicial review of the magistrates’ court’s decision. The Court of the Queen’s Bench Division, refusing the application, held that the English Courts had no power to inquire into the circumstances under which a person appearing before them had been brought within the jurisdiction.

Defendant appealed at the House of Lords which allowed appeal and held that:

“where a defendant in a criminal matter had been brought back to the United Kingdom in disregard of available extradition process and in breach of international law and the laws of the state where the defendant had been found, the courts in the United Kingdom should take cognizance of those circumstances and refuse to try the defendant; and that, accordingly, the High Court, in the exercise of its supervisory jurisdiction, had power to inquire into the circumstances by which a person had been brought within the jurisdiction and, if satisfied that there had been a disregard of extradition procedures, it might stay the prosecution as an abuse of process and order the release of the defendant.”

– Ademola Abass, Complete International Law (2012)

Note: although Ker v. Illinois showed directly opposing view, the US also refuses to claim jurisdiction over criminals forcibly taken from overseas, as held in Frisbie v. Collins 342 US 519 (1952).

Citation

  • Ademola Abass, Complete International Law 2nd Ed.
  • Malcolm N. Shaw, International Law 6th Ed.
  • Kim Daesun, Public International Law 18th Ed.

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Construction of Road Along the San Juan River case (2013)

Certain activities carried out by Nicaragua in the Border Area (Costa Rica v. Nicaragua) and

Construction of a Road in Costa Rica along the San Juan River (Nicaragua v. Costa Rica)

Please note that the scope of this case brief has been set to best serve our purposes in relation to the ULS Intramural Moot Court Competition 2017. Discussion regarding the Sovereignty over the disputed territory and Rights of Navigation has been curtailed. 

Citation

[2013] ICJ Rep 354 (Official Citation)ICGJ 475 (ICJ 2013) (OUP reference)

Facts

The San Juan River runs approximately 205 km from Lake Nicaragua to the Caribbean Sea. At a point known as “Delta Colorado” (or “Delta Costa Rica”), the San Juan River divides into two branches: the Lower San Juan, which is the northerly of these two branches and flows into the Caribbean Sea about 30 km downstream from the delta; and the Colorado River, the southerly and larger of the two branches, which runs entirely within Costa Rica, reaching the Caribbean Sea at Barra de Colorado, about 20 km south-east of the mouth of the Lower San Juan.

San Juan River pic 01

The area situated between the Colorado River and the Lower San Juan is broadly referred to as Isla Calero (approximately 150 sq km). Within this area, there is a smaller region known to Costa Rica as Isla Portillos and to Nicaragua as Harbor Head (approximately 17 sq km); it is located north of the former Taura River. In the north of Isla Portillos is a lagoon, called Laguna Los Portillos by Costa Rica and Harbor Head Lagoon by Nicaragua. This lagoon is at present separated from the Caribbean Sea by a sandbar (see Map No.1). The area includes two wetlands of international importance: the Humedal Caribe Noreste (Northeast Carribean Wetland) and the Refugio de Vida Silvestre Río San Juan (San Juan River Wildlife Refuge).

San Juan River pic 02

On 18 October 2010, Nicaragua started dredging the San Juan River in order to improve navigability, while also carrying out works in the northern part of Isla Portillos. Costa Rica contended that Nicaragua had artificially created a channel (both Parties refer to such channels as “caños”) on Cost Rican territory, in Isla Portillos between the San Juan River and Laguna Los Portillos/Harbor Head Lagoon. Nicaragua argues that it was only clearing an existing caño on Nicaraguan territory.

In December 2010, Costa Rica started works for the construction of Route 1856 Juan Rafael Mora Porras (hereinafter the “road”), which runs in Costa Rican territory along part of its border with Nicaragua, and has a planned length of 159.7 km, extending from Los Chiles in the west to a point just beyond “Delta Colorado” in the east. For 108.2 km, the road follows the course of the San Juan River (see Map No.2). On February 2011, Costa Rica adopted an Executive Decree declaring a state of emergency in the border area, which Costa Rica maintains exempted it from the obligation to conduct an environmental impact assessment before constructing the road.

San Juan River Route 1856 pic 01

On 18 November 2010, Costa Rica instituted proceedings and alleged in particular that Nicaragua has invaded and occupied Costa Rican territory and dug a channel thereon; it also reproached Nicaragua with conducting works (notably dredging of the San Juan River) in violation of its international obligations. On 22 December 2011, Nicargua filed in the Registry contending that Costa Rica was carrying out major road construction works in the border area between the two countries along the San Juan River, in violation of several international obligations and with grave environmental consequences. ICJ joined the proceedings in Costa Rica v. Nicaragua and Nicaragua v. Costa Rica cases in 17 April 2013.

Issue

  • Whether Costa Rica’s claim of sovereignty over the Isla Portillos and the Colorado River was sufficiently plausible for the Court to consider provisional measures.
  • Whether Nicaragua’s construction of two new caños and placement of personnel, infrastructure, and equipment in the disputed territory in the Humedal Caribe Noreste wetland constituted a real and imminent risk of irreparable prejudice to Costa Rica’s rights.
  • Whether Costa Rica should be permitted to undertake remediation works in the disputed territory on the two new caños and surrounding areas to prevent irreparable prejudice being caused to the disputed territory.

Law

Obligation to Conduct Environmental Impact Assessment (EIA)

Obligation to Notify and Consult

Obligation Not to Cause Significant Trans-boundary Harm

Ruling

Nicaragua did not breach any procedural obligations owed to Costa Rica under treaties or the customary international law of the environment.

Unanimously, Costa Rica was in breach of its obligation to conduct trans-boundary EIA in relation to the construction of the Route 1856

Court’s Reasoning in Costa Rica v. Nicaragua

  • (a) Alleged Breach of Nicaragua of the Obligation to carry out an Environmental Impact Assessment

Procedural Obligation under International Environmental Law

After recalling its conclusion in Pulp Mills on the River Uruguay case, namely that, “it may now be considered a requirement under general international law to undertake an environmental impact assessment where there is a risk that the proposed industrial activity may have a significant adverse impact in a trans-boundary context, in particular on a shared resource” (I.C.J. Reports 2010 (I), p. 83, para. 204), the Court explains that even though this statement referred to industrial activities, the underlying principle applies generally to proposed activities which may have a significant adverse impact in a trans-boundary context. Thus, to fulfill its obligation to exercise due diligence in preventing significant trans-boundary environmental harm, a State must, before embarking on an activity having the potential adversely to affect the environment of another State, ascertain if there is a risk of significant trans-boundary harm, which would trigger the requirement to carry out an environmental impact assessment.

The Court recalls that determination of the content of the environmental impact assessment should be made in light of the specific circumstances of each case. If the environmental impact assessment confirms that there is a risk of significant trans-boundary harm, the State planning to undertake the activity is required, in conformity with its due diligence obligation, to notify and consult in good faith with the potentially affected State, where that is necessary to determine the appropriate measures to prevent or mitigate that risk.

Having examined the evidence in the case file, including the reports submitted and testimony given by experts called by both Parties, the Court found that the dredging programme planned in 2006 by Nicaragua was not such as to give rise to a risk of significant trans-boundary harm, either with respect to the flow of the Colorado River or to Costa Rica’s wetland. In light of the absence of risk of significant trans-boundary harm, Nicaragua was not required to carry out an environmental impact assessment.

  • (b) Alleged Breach of Nicaragua of an Obligation to Notify and Consult

Procedural Obligation under International Environmental Law

The Court rejected Nicaragua’s contention by stating that the fact that the 1858 Treaty may contain limited obligations concerning notification or consultation in specific situations does not exclude any other procedural obligations with regard to trans-boundary harm which may exist in treaty or customary international law.

In any event, the Court found that since Nicaragua was not under an international obligation to carry out an environmental impact assessment in light of the absence of risk of significant trans-boundary harm, it was not required to notify, or consult with, Costa Rica.

The Court found that the obligation to notify under Article 3 Paragraph 2 of the Ramsar Convention is limited to changes or likely changes in the “ecological character of any wetland” in the territory of the notifying State. Considering the evidence before it, the Court determined that it does not indicate that Nicaragua’s dredging programme has brought about any changes in the ecological character of the wetland, or that it is likely to do so unless it were to be expanded. Thus, the Court found that no obligation to inform the Ramsar Secretariat arose for Nicaragua.

The Court found that Article 5 of the same instrument which contains a general obligation to consult “about implementing obligations arising from the Convention” does not create an obligation on Nicaragua to consult with Costa Rica concerning a particular project that it is undertaking, in this case the dredging of the Lower San Juan River.

  • (c) Alleged Breach of Nicaragua of substantive obligations concerning Trans-boundary Harm by Nicaragua

Substantive Obligations under International Environmental Law

In examining whether Nicaragua is responsible for any trans-boundary harm allegedly caused by its dredging activities which have taken place in areas under Nicaragua’s territorial sovereignty, in the Lower San Juan River and on its left bank, the Court determined that Costa Rica failed to provide any convincing evidence that sediments dredged from the river were deposited on its right bank nor that the dredging programme caused harm to its wetland, or has had a significant effect upon the Colorado River.

  • (d) Reparation

The Court finds that Costa Rica is entitled to receive compensation for the material damage caused by those breaches of obligations by Nicaragua that have been ascertained by the Court, the relevant damage and the amount of compensation to be assess ed by the Court in separate proceedings. These breaches are in relation to claims regarding territorial sovereignty and right to navigation which have not been dealt in this IRAC which exclusively focused on the procedural and substantive obligations under International Environmental Law.

Court’s Reasoning in Nicaragua v. Costa Rica

  • (a) Alleged Breach of Costa Rica of the Obligation to carry out an EIA in relation to the construction of the road, particularly in view of the road’s length and location

Procedural Obligations under International Environmental Law

The Court recalls that a State’s obligation to exercise due diligence in preventing significant trans-boundary harm requires that State to ascertain whether there is a risk of significant trans-boundary harm prior to undertaking an activity having the potential adversely to affect the environment of another State. If that is the case, the State must conduct an environmental impact assessment.

In response to Costa Rica’s claim that a preliminary assessment of the risk posed by the road project had been undertaken when the decision to build the road was made, the Court observed that to conduct a preliminary assessment of the risk posed by an activity is one of the ways in which a State can ascertain whether the proposed activity carries a risk of significant trans-boundary harm. In considered, however, that Costa Rica had not adduced any evidence that it actually carried out such a preliminary assessment.

The Court points out that, in evaluating whether, as of the end of 2010, the construction of the road posed a risk of significant trans-boundary harm, it will have regard to the nature and magnitude of the project and the context in which it was to be carried out. Given that the scale of the road project was substantial, and given the planned location of the road was to be situated (and in particular because it would pass through a wetland of international importance in Costa Rican territory and be located in close proximity to another protected wetland situated in Nicaraguan territory), the Court found that the construction of the road by Costa Rica carried a risk of significant trans-boundary harm. Therefore, the threshold for triggering the obligation to evaluate the environmental impact of the road project was met.

Despite the fact that Costa Rica produced several studies assessing the adverse effects that had already been caused by the construction of the road on the environment and suggested steps to prevent or reduce them, the Court found that the obligation to conduct an environmental impact assessment requires an ex ante evaluation of the risk of significant trans-boundary harm, and thus “an environmental impact assessment must be conducted prior to the implementation of a project” (I.C.J. Reports 2010 (I), p. 83, para 205). Costa Rica was in breach of its obligation to carry out an EIA to ensure that the design and execution of the project would minimize the risk of significant trans-boundary harm.

  • (b) Alleged Breach of Costa Rica of Article 14 of the Convention on Biological Diversity

Procedural Obligation under IEL

The Court found that this provision at issue does not create an obligation to carry out an EIA before undertaking an activity that may have significant adverse effects on biological diversity

  • (c) Alleged Breach of Costa Rica of an Obligation to Notify and Consult by Costa Rica

Procedural Obligation under IEL

The Court reiterated its conclusion that, “if the EIA confirms that there is a risk of significant trans-boundary harm, a State planning an activity that carries such a risk is required, in order to fulfill its obligation to exercise due diligence in preventing significant trans-boundary harm, to notify, and consult with, the potentially affected State in good faith, where that is necessary to determine the appropriate measures to prevent or mitigate that risk.

However, the duty to notify and consult does not call for examination by the Court in the present case, since it has established that Costa Rica has NOT complied with its obligation under general PIL to perfrom an EIA prior to the construction of the road.”

Regarding Article 5 of the Ramsar Convention, the Court found that “this provision creates no obligation for Costa Rica to consult with Nicaragua concerning a particular project it is undertaking, in this case the construction of the road.”

In conclusion, Costa Rica “remains under an obligation to prepare an appropriate EIA for any further works on the road or in the area adjoining the San Juan River, should they carry a risk of significant trans-boundary harm” and Costa Rica accepted this obligation.

  • (d) Alleged breach of Costa Rica of the Obligation Not to Cause Significant Trans-boundary Harm to Nicaragua

Substantive Obligation under IEL

It was not contested that “sediment eroded from the road is delivered to the river.” However, the Court found that “the evidence before it based on modelling and estimates by experts appointed by the Parties show that… the amount of sediment in the river due to the construction of the road represents at most 2 per cent of the river’s total load.”

The Court denied Nicaragua’s submission that “any detrimental impact on the river that is susceptible of being measured constitutes significant harm is unfounded” and that “Nicaragua has not shown that the river’s sediment levels are such that additional sediment eroded from the road passes a sort of critical level in terms of its detrimental effects.” Moreover, the Court finds that, “contrary to Nicaragua’s submissions, the present case does not concern a situation where sediment contributed by the road exceeds maximum allowable limits, which have not been determined for the San Juan River.” Thus, the Court was not convinced by Nicaragua’s argument that the absolute quantity of sediment in the river due to the construction of the road caused significant harm per se.

In considering the relative impact of the road-derived sediment on the current overall sediment load of the San Juan River, on the basis of the evidence before it, the Court observes that the road is contributing at most 2 per cent of the river’s total load. It considers that significant harm cannot be inferred therefrom, particularly taking into account the high natural variability in the river’s sediment loads.

  • (e) Alleged harm to water quality and the aquatic ecosystem by Costa Rica

Substantive Obligation under IEL (Significant Harm)

The Court determined that the Environmental Diagnostic Assessment and the expert report relied upon by Nicaragua do not substantiate the claim that the construction of the road caused significant harm to the river’s ecosystem and water quality.

  • (f) Alleged breaches of Treaty Obligations by Costa Rica

Substantive Obligation under Treaties

The Court determined that “Nicaragua simply makes assertions about Costa Rica’s alleged violations and does not explain how the “objectives” of the instruments or provisions invoked would have been breached, especially in the absence of proof of significant harm to the environment.” Nicaragua failed to show that Costa Rica infringed the Ramsar Convention, the 1990 Agreement over the Border Protected Areas between Nicaragua and Costa Rica, the Convention on Biological Diversity, the Convention for the Conservation of Biodiversity and Protection of Priority Wildlife Areas in Central America, the Central American Convention for the Protection of the Environment, the Tegucigalpa Protocol to the Charter of the Organization of Central American States, and the Regional Agreement on the Trans-boundary Movement of Hazardous Wastes.

  • (g) Reparation

The Court’s determination that Costa Rica violated its obligation to conduct an EIA is the appropriate measure of satisfaction for Nicaragua. The Court rejected all of Nicaragua’s other submissions.

 

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Joining in 2010, Seungmin is a Founding Member of and Senior Partner at Yonsei ULS. Please be advised: the comment, writing, or column does not represent  the official position of YULS.

 

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Land Reclamation case (2003)

Case concerning Land Reclamation by Singapore in and around the Straits of Johor

(REQUEST FOR PROVISIONAL MEASURES)
International Tribunal for the Law of the Sea. 8 October 2003

( Nelson, President; Vukas, Vice-President; Caminos, Marotta Rangel, Yankov, Yamamoto, Kolodkin,Park, Bamela Engo, Mensah, Chandrasekhara Rao, Akl, Anderson, Wolfrum, Treves, Marsit, Ndiaye,Jesus, Xu, Cotand Lucky, Judges; Hossainand Oxman, Judges ad hoc)

Citation

ITLOS Case No. 12

Facts

A small island city-State off the southern tip of Malay Peninsula, Singapore has been reclaiming land-a process of turning otherwise unusable land into usable-from the sea since its independence in order to make up for its putative shortage of land. Starting in 1960s, Singapore has reclaimed land for industrial, housing and infrastructure purposes. One of the most well-known projects is Changi Airport, located at the eastern part of the Mainland Singapore, Pulau Ujong.

The issue in question concerned massive land reclamation projects in Tuas and in Pulau Tekong, located at the southwestern tip of the Mainland Singapore and in a separate, northeastern island, respectively.

In January 2002, by the time the Singapore’s land reclamation projects in Tuas had progressed for more than one and half years, Malaysia began protesting the projects because of its alleged land encroachment into her territorial waters. A subsequent protest was made in April 2002 for the issue of various impacts arising from the projects.

Malaysia’s protest against the land reclamation projects in Pulau Tekong began with claims of a different nature, concerning the alleged impacts on her environment and the narrowed waterway in and around the Straits of Johor.
In a nutshell, Malaysia accused Singapore of reclaiming land in a way that impinged on her territory, narrowed and constrained navigation in the Straits of Johor, caused various damages to its marine environment including the reduced catch of the Malaysian fisherman.

In July 2003, Malaysia invoked Article 286 of 1982 UNCLOS and initiated arbitration under Annex VII of 1982 UNCLOS. Arbitration efforts afterwards had not produced any fundamental changes to the dispute and on 4 September 2003 Malaysia applied to ITLOS for provisional measures pending the arbitration outcome.

Issues

  • To what extent are the States obliged to continue exchanging views regarding the settlement by peaceful means? Does it have any bearing on the Tribunal’s exercise of jurisdiction?
  • Whether the nature or/and degree of damages incurred by Malaysia, if any, arising from land reclamation works by Singapore justify prescribing the requested provisional measures, mainly the suspension of the works
  • Whether Singapore is responsible for the alleged damages incurred by Malaysia under UNCLOS
  • Whether the reduced catch by the Malaysian fisherman is subject to compensation. If it is so, to what extent and in what form shall Singapore compensate?

Law

(See ADDENDUM [4] below for the specific articles invoked)

1982 UN Convention on the Law of the Sea

Judgement by the ITLOS

Consisted of five members, the Arbitral Tribunal delivered a unanimous judgement prescribing a set of provisional measures with regard to the establishment of a group of experts (GOEs) on assessing any adverse effects or risks of Singapore’s works. A very important point to note is that as the Court considered neither Malaysian claim to an area of territorial sea nor a situation of urgency a sufficient basis for the prescription of provisional measures with respect to the reclamation in the sector of Tuas.

Court’s Reasoning by Issue

1. To what extent are the States obliged to continue exchanging views regarding the settlement by peaceful means? Does it have any bearing on the Tribunal’s exercise of jurisdiction?

Singapore argued that Malaysia has failed to fulfill its obligations under Article 283(1) because Malaysia’s actions were deemed to be an inadequate discharge of the obligation. Therefore Singapore submitted that ITLOS may not exercise its jurisdiction over the matter. To this, the Tribunal viewed that the “obligation to proceed expeditiously to an exchange of views” (UNCLOS Article 283) applies to both sides of the dispute (38). Then the Tribunal considered the both sides: Singapore maintaining that Malaysia broke off the negotiation process (43) while Malaysia maintaining that the further exchange could not be expected when reclamation works were continuing (44). Finding that “the parties were not able to settle the dispute or on means to settle it” (46) and citing two cases (Southern Bluefin Tuna Cases, Order of 27 August 1999, paragraph 60 and The Mox Plant Case, Order of 3 December 2001, paragraph 60), the Tribunal stated that “in the circumstances of the present case Malaysia was not obliged to continue with an exchange of views when it concluded that this exchange could not yield a positive result”. Thus the requirement of the Article 283 was satisfied and with no other objections to the Tribunal’s exercise of jurisdiction by Singapore, the Tribunal finds that it would prima facie have jurisdiction over the dispute.

2. Whether the nature or/and degree of damages incurred by Malaysia, if any, arising from land reclamation works by Singapore justify prescribing the requested provisional measures, mainly the suspension of the works.

1) With regard to the Malaysia’s claim that the Singapore’s reclamation works impinged on Malaysia’s territorial sea in the sector of Tuas and in the vicinity of Point 20 justifies the ordering the suspension of the works (70), the Tribunal viewed that the existence of claim to the territorial sea alone is not, per se, a sufficient basis for the prescription of provisional measures under Article 290 of UNCLOS (71).

2) With regard to the Malaysia’s claim of urgency of the situation, the Tribunal found that “the evidence presented by Malaysia does not show the urgency…or a risk that rights it claims with respect to the territorial sea would suffer irreversible damage pending the consideration of the merits…by Annex VII arbitral tribunal”. And thus the Tribunal “does not find it appropriate in the circumstances to prescribe provisional measures with respect to” the works in the sector of Tuas (73).

Yet the Tribunal, citing the Article 290 and the Mox Plant case, emphasize the duty to cooperate in the prevention of pollution in the marine environment (92). Then it found that there was no assessment “concerning the impact of the works on waters under the jurisdiction of Malaysia” (95) and that “it cannot be excluded that in the particular circumstances, the reclamation works may have adverse impacts on the marine environment” (96). The Tribunal stated that there existed insufficient cooperation between the parties and that “it is urgent to build on the commitments made to ensure prompt and effective cooperation of the parties in the implementation of their commitments” (98), prescribed the provisional measures that primarily emphasize the cooperative efforts of the both sides on the matter through the establishment of the group of independent expects (GOEs).

3. Whether Singapore is under UNCLOS responsible for the alleged damages incurred by Malaysia

The Tribunal did not explicitly rule on this issue. All it said about the matter was that “it cannot be excluded that, in the particular circumstances of this case, the land reclamation works may have adverse effects on the marine environment” (96). Thus the matter is open to questions and further inquiry by the GOEs.

4. Whether the reduced catch by the Malaysian fisherman is subject to compensation. If it is so, to what extent and in what form shall Singapore compensate?

The Tribunal did not comment on the reduced catch by the Malaysian fisherman. The matter, nevertheless, was subsequently dealt in the Settlement Agreement signed by both parties on 26th April 2005 in which Singapore agreed to compensate RM 374,400 (Malaysian Riggit), which was RM 5,200 per fisherman. This amount (RM 5,200), according to the exchange rate as of April 2005, was roughly equivalent to  $1,379 (USD 1 = 3.77 RM, 25th April 2005).

 

ADDENDUM

[1] Malaysia’s Reasons for which the request was made

1) Singapore is engaging in land reclamation in and around the Straits of Johor in a manner that is causing and has potential to cause serious and irreversible damage to the marine environment and serious prejudice to the rights of Malaysia.

a) Serious harm to the marine environment: The Malaysian reports (included in Annex) demonstrate this. The reclamation projects are producing major changes to the flow regime, sedimentation and consequential effects in terms of coastal erosion. Navigation is also affected.

b) Prejudice to the rights of Malaysia: those rights relating to the maintenance of marine and coastal environment and the preservation of its right of access to its coastline are at stake. Such rights are guaranteed by UNCLOS Article 2, 15, 123, 192,194,198, 200, 204, 205, 206, 210 and 300. Singapore must comply with all of the relevant obligations in those articles.

2) The projects are permanent in character; the harms caused are irreversible and irreparable

3) A failure to grant provisional measures would prejudice the rights of Malaysia while the grant of provisional measures would not cause irreparable prejudice to the rights of Singapore.

4) The situation is urgent as Singapore has not responded to Malaysia’s invitation that ITLOS should have jurisdiction over the merits as of the date of filing this request.

Therefore, pursuant to Article 290(1) and (5) which state that the Tribunal “may prescribe any provisional measure which it considers appropriate under the circumstances to the respective rights of the parties to the dispute or to prevent serious harm to the marine environment”, Malaysia request that the Tribunal prescribe provisional measures as both conditions (serious harm and prejudice, as explained above) have been met.

[2] Provisional Measures requested by Malaysia were 

a) that Singapore shall, pending the decision of the Arbitral Tribunal, suspend all current land reclamation activities in the vicinity of the maritime boundary between the two States or of areas claimed as territorial waters by Malaysia (and specifically around Pulau Tekong and Tuas);

b) to the extent it has not already done so, provide Malaysia with full information as to the current and projected works, including in particular their proposed extent, their method of construction, the origin and kind of materials used, and designs for coastal protection and remediation (if any);

c) afford Malaysia a full opportunity to comment upon the works and their potential impacts having regard, inter alia, to the information provided; and

d) agree to negotiate with Malaysia concerning any remaining unresolved issues

[3] In her Response Singapore requested ITLOS to

(a) dismiss Malaysia’s Request for provisional measures; and

(b) order Malaysia to bear the costs incurred by Singapore in these proceedings; Application by the Court:

[4] Articles Invoked by Malaysia

Article 2: Legal status of the territorial sea, of the air space over the territorial sea and of its bed and subsoil

Article 15: Delimitation of the territorial sea between States with opposite or adjacent coasts

Article 123: Cooperation of States bordering enclosed or semi-enclosed seas

Article 192: States have the obligation to protect and preserve the marine environment.

Article 194: Measures to prevent, reduce and control pollution of the marine environment

Article 198: Notification of imminent or actual damage

Article 200: Studies, research programmes and exchange of information and data

Article 204: Monitoring of the risks or effects of pollution

Article 205: Publication of reports

Article 206: Assessment of potential effects of activities

Article 210: Pollution by dumping

Article 283: Obligation to exchange views

Article 286: Application of procedures under this section

Article 287 (1), (3): Choice of procedure

Article 288: Jurisdiction

Article 290 (1), (5): Provisional Measures

Article 300: Good faith and abuse of rights

Annex VII: ARBITRATION

OLYMPUS DIGITAL CAMERA“Courage and perseverance have a magical talisman, before which difficulties disappear and obstacles vanish into air.” – John Q. Adams

Joining in 2014, James DongA Shin is a Senior Partner at Yonsei ULS. Please be advised: the comment, writing, or column does not represent the official position of YULS.

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