[Opinion] Galluci’s Dangerous Fairy Tale

Seungmin P. Jung

Incremental Negotiations and Deterrence to Contain North Korean Nuclear Hostilities over Preventive War and Sanctions

16 October 2017, President Robert L. Galluci of the John D. and Catherine T. MacArthur Foundation was invited as the main lecturer for the William J. Perry Lecture Series at Yonsei University to speak on “Dealing with North Korea: Defence, Deterrence, Diplomacy and Alliance.” Galluci as “Ambassador-at-Large and Special Envoy for the U.S. Department of State, dealt with the threats posed by the proliferation of ballistic missiles and weapons of mass destruction. He was chief U.S. negotiator during the North Korean nuclear crisis in 1994, and served as Assistant Secretary of State for Political Military Affairs and as Deputy Executive Chairman of the UN Special Commission overseeing the disarmament of Iraq following the first Gulf War.”

In his lecture, Galluci stated that initiating “incremental negotiations” is the solution to the North Korean nuclear crisis and discussions on preventive war in Washington is premature, “absent reasonable assessment to support it.” He claimed that the credibility of the threat posed by the recent North Korean nuclear and missile tests to U.S. has largely been exaggerated in its presentation as a “crisis” in that (i) the rise of another nuclear state – as was the case of Soviet Union and China – is not a new or foreign source of threat and (ii) blackmailing, appeasement, and containment are all available alternative foreign policies – not just sanctions and preventive war. In conclusion, U.S. needs to open itself to “a new vulnerability” of neighboring another nuclear state and focus on containment rather than resort to aggression or hostilities. Ex-Ambassador cited the following reasons to support his statement.

  • Despite North Korea’s acquisition of nuclear capabilities, it’s asymmetrical balance in military arsenal and force in comparison to that of U.S. is astronomical. U.S. still can and should negotiate from a position of strength.
  • North Korea was not the only Party that “cheated” on the Agreed Framework signed between U.S. and DPRK on 21 October of 1994, the conclusion of which Mr. Galluci as Ambassador had contributed to. U.S. also had failed to act in consistency.
  • North Korean regime is not suicidal: there is little to no chance of an outbreak of nuclear war for U.S. has far superior second striking power and military force operable in foreign soil. A nuclear strike would result in although not immediate, ultimate collapse of Kim’s regime.
  • As it has not been so during the Cold War, the credibility of U.S. extension of nuclear deterrence/umbrella is not undermined by North Korea’s newly acquired capabilities. Major cities in South Korea and Japan are not truly taken “as hostage.”
  • Sanctions have little effect in delaying or stunting North Korea’s nuclear capabilities in that it has already acquired the resources required for building its arsenal and is thoroughly skilled via experience in circumvention of such sanctions.

Therefore, the initiation of incremental negotiations ultimately leading to normalized relations with a nuclear North Korea is the proper course of response; not preventive war or increased sanctions. Notice how Mr. Galluci interestingly takes for granted North Korea’s nuclear state status without objection. He argued that U.S. should open itself up to a “new vulnerability” rather than consider options of aggression. 

Trump meme

Granted, the results of war are always catastrophic and inhumane, therefore, unnecessary aggression should be avoided whenever possible. However, at what cost? If the exceptional effectiveness in human destruction of nuclear weaponry is the reason we must approach this “crisis” with caution, why risk the rise of another state that openly flaunts to use this force? In my opinion, here are two of the more pertinent points Galluci failed to clarify in his lecture, thereby making his optimistic portrait of future U.S.-DPRK relations a dangerous fairy tale.

What does a Normalized Relations between U.S. and DPRK (one attractive to DPRK and acceptable to U.S.) that can transcend or be maintained over leadership changes look like? Does it exist?

Ex-Ambassador admitted that he himself does not know what the end game of North Korean regime is in acquiring nuclear weaponry. This is a quizzical comment being offered from an expert well-known for his capabilities to think from DPRK leadership’s perspective. However, since DPRK is claiming to want normalized relations with U.S., Galluci argues that this should be offered at the negotiation table. However, it is my contention that there is no form of normalized relations between the two states that is attractive to DPRK and acceptable to U.S. that can transcend or be maintained over leadership changes. Galluci is wrong in claiming that permitting a nuclear North Korea is merely “a new vulnerability”: it is in fact opening doors to numerous potential threats and U.S. has a lot more to lose in the grand schematic. 

  • North Korea will not surrender it’s nuclear weaponry for it has become clear that the political, economic, and military independence of its regime cannot be ensured in any other way.

North Korea has watched other states such as South Africa, former members of the Soviet Union, and Iran suffer the consequences of forfeiting their nuclear capabilities. It has also watched changing leadership in the U.S. invade and restructure former allies based on fabricated evidence and propaganda in the Middle East. This was indeed a demonstration of military might, but also U.S. versatility in foreign relations when her interests are seemingly at stake. Need we mention US’s non-membership to the International Criminal Court (ICC) and absence at climate change forums? President Trump’s threat to terminate the Iran Deal is another paramount example. From the North Korean leadership’s perspective, U.S. is incapable of providing assurance that a normalized relationship that ensures the continuation of Kim’s regime; in contrast, the acquisition of nuclear weapons technology most certainly will. Normalized relations cannot be traded for North Korea’s nuclear weapons program. 

  • Whether Normalized Relations is truly Kim’s End Game is highly questionable.

There are credible scenarios in which normalized relations with U.S. can be in fact unattractive for the continuation of  Kim’s regime. Politics and Governance are two separate beasts. As several succeeding U.S. Presidential candidates during their campaign have promised to conduct extensive investigations into the former President’s illegal acts committed in office, but completely abandoned this position once they have been sworn in, North Korean leadership also sells one story to its own people and another to the international community. One principle justification provided to North Koreans for the succession of oppressive military dictatorship by Kim’s family is the continuing conflict between itself and the evil foreign superpower, U.S. Despite it’s glaring discrepancy from reality, North Koreans are being sold the propaganda that South Korea has been illegally occupied and controlled by foreigners whom have enslaved Koreans waiting for their rescue from continued suffering. The ongoing confrontation against the U.S. is the pillar that holds Kim Jeong Eun’s regime in the eyes of the public as legitimate. Increased sanctions by U.S. are the main culprit for North Korea’s stunted economic growth and therefore, military expansion is necessary to achieve independence and avoid colonization as the South has been succumbed to. The continuation of conflict and intermittent tales of victory against U.S. and her puppet state South Korea serves as fuel of national pride and evidence of success for Kim’s governance. Currently, the nuclear weapons development serves this role. If North Korea normalizes relations with U.S.,where is the legitimacy of mass imprisonment of political rivals and public executions? In the people’s eyes, where is the justification for the continuing suffering and tragedies other than poor governance by Kim? There is a strategic vantage for Kim’s reign in U.S. remaining as an adversary. As are immigrants to Trump, U.S. is to Kim.

  • U.S. cannot have normalized relations with North Korea that ensures the survival of it’s current regime due to the fact (i) of gross human rights violations within North Korea and (ii) that North Korea holds no economic, political, or military significance as an ally to U.S.

It is true that U.S. has tolerated many corrupt and dictator-run regimes in the past, however, all have one characteristic in common: that either they had a strategic significance as an ally to U.S. or had marginal significance. Ironically, North Korea offers no strategic advantage to U.S. as a non-nuclear state, and as a nuclear state, it poses a grave threat to her security and dominance in the Pacific region. North Korea’s willingness to seek political, economic, and military independence ensures us one thing about it’s foreign policy: it will oscillate between superpowers and not completely lean towards one as did South Korea or Japan. North Korea will never truly become an ally of U.S. against China and Russia in the Pacific Theater of War. As mentioned above, DPRK has come to master the art of exploiting this situation.

This situation may indeed change drastically if U.S. goes further to provide aid to North Korea as she did to the European states post World War II to ensure their economic prosperity. This arrangement can be sold to the North Korean public as a “victory” from Kim’s point of view and will definitely ensure the continuation of his reign. However, American citizens are unlikely to tolerate this form of a normalized relations with North Korea should it not abandon it’s human rights practices and this is not an attractive option for Kim. This is the very U.S. influence the ruling class of North Korea feels the need to be insulated from to preserve their elite status. Without having solved the human rights violations issue, any form of normalized relations between U.S. and DPRK will fall hostage every time to political campaigns of candidates contesting the government’s policy.

If Galluci is proposing such an arrangement and if it becomes a reality, it will be an unprecedented event in U.S. history of foreign relations. In any case, as was the case of the 1994 Agreed Framework, a non-binding temporary agreement that cannot survive change of political leaderships is hardly a normalized relationship beneficial to Kim’s regime.

  • Moreover, having to tolerate North Korea’s Nuclear State status not due to it’s strategic importance to U.S., but due to U.S. leadership’s failure to prevent it by taking timely necessary action is not an acceptable scenario for neither Americans nor South Koreans

U.S. does not negotiate with terrorists; or so it has been proclaimed. North Korea in its population, size of territory, resources, and allies are in no meaningful manner comparable to China or Soviet Russia when U.S. decided to not take action against their nuclear weapons development and resorted to containment. How is this not an unforgivable dent on “American Superiority”, a propaganda sold to the U.S. citizens to heighten national pride yet also a necessary impression the rest of the world must retain to ensure U.S. interests abroad?

Moreover, how is living under the direct threat of North Korean nuclear strike due to U.S. leadership’s lack of decisiveness tolerable to Koreans and even Japanese citizens whom consider U.S. as their trusted ally? Indeed, there will be little to no chance of North Korea utilizing its nuclear arsenal against U.S. territory, but there consistently has been military aggression and exchange of fire between North and South Korea throughout the years. Discussions of procuring independent nuclear weapons technology in South Korea is direct evidence of the diminishing credibility of extended deterrent by U.S. The Japanese Prime Minister Shinzo Abe’s proposal to revise the pacifist Article 9 so that the Japanese Self Defence Forces (JSDF) may operate in overseas assaults and preemptive strikes is in line with this increased sense of threat in spite of U.S. assurance. It is Galluci’s argument that is unsubstantiated when it comes to the credibility of U.S. extension of deterrence.

Are all wars to be absolutely avoided at all cost? or are some wars unavoidable and a closing time window to take action exist?

Why permit the nuclear state status of an impoverished hostile state that threatens to use its capabilities when there is an option to prevent it? Did U.S. and U.K. not make a similar mistake of delaying intervention and engaging in use of force in World War II when Hitler’s Nazi Germany was making false promises of peace while preparing for war in secrecy? Negotiations and agreements were a hoax to buy much needed time. It seems that North Korea has been utilizing such strategy to advance this far, Galluci is unabashed in proposing to continue negotiations. Results of these negotiations are unclear except for one fact: North Korea will be guaranteed more time.

Even if we accept the premise that due to the fact that the North Korean regime is not suicidal and therefore, will not engage in war, how does succumbing to the threats of Kim Jong Eun not signal to the rest of the world that nuclear weapons development is indeed a viable option against U.S. intervention? How will U.S. ensure the prevention of leakage of nuclear technology from an impoverished North Korea? Is the proliferation of nuclear weaponry not credible enough threat to engage in war? Following this line of logic, is there ever a just cause for war or should delayed wars be considered good as well? is there a difference between delayed wars and prevention?  Is not the “exceptional effectiveness in human destruction of nuclear weaponry” the very reason why we must intervene now and send a message of zero tolerance?

 

Conclusion :

Of course an act of war in the Korean peninsula must not be an unilateral one made by the U.S. absent the consent of South Korean government. This is the only way to prevent the unfortunate categorization of South Koreans as “collateral damage.” In any case, having failed to clarify on the two issues above, Galluci’s proposal of continued negotiations in my opinion fits nicely into the description of a “dangerous fairy tale.”

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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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[Law and Economics] Legal and Economic Analysis of Accidents Involving Autonomous or Self-driving Technologies

The First Autopilot Fatality: Which Rule to Adopt?

Legal and Economic Analysis of Accidents Involving Autonomous or Self-driving Technologies


James DongA Shin

With the very first known fatality involving the self-driving or autonomous car, the legal and technological circles have been debating whether Tesla, the manufacturer of the car in the accident, should be held responsible for the accident. The historic accident occurred when Tesla’s model S and its driver failed to notice a trailer turning left across the lanes of U.S. Highway 27 in Florida, causing the death of the driver, Joshua Brown.

screenshot-www.tesla.com-https-www.tesla.com-models-2017-10-15-21-05-04-401

Tesla’s Model S offers “Autopilot”, one of the most advanced autonomous driving features available in the auto industry. (Screenshot from http://www.tesla.com/models)

tesla florida

The historic crash occurred on May 7, 2016 in Williston, Florida. (Image Credit: James DongA Shin / Satellite Image: Google Maps)

This paper will attempt to analyze the economic impact of holding parties liable in accidents that involve the autonomous or self-driving vehicles. Being an autonomous or self-driving vehicle in this paper implies that a car is capable of driving itself without the assistance of or the reliance on the driver; this is the prime feature that distinguishes it from all other rudimentary driving assist features such as Cruise Control, Lane Keeping Assist System (LKAS) or Blind Spot Information System (BLIS). Such difference is also what makes determining the liability more challenging for the Court.

Although there are established laws in place, since they have not yet fully addressed this newly developed technology in Court, the analysis will attempt to analyze the economic consequences of applying different liability rules to possible scenarios of auto accidents that involve autonomous or self-driving cars. Thus, the analysis could be likened to be providing an omniscient point of view to a judge with an economist’s mind, helping him or her to readily deliver a verdict for potential disputes between the manufacturer and the driver.

For the simplicity, let us assume that there are only two parties involved: car manufacturer and the driver. Based on bilateral precaution in which both parties are required to take precaution for efficiency to take place, the analysis is limited to three major legal liability theories: no liability, strict liability, and negligence. Although the order of playing the “game” does change the outcome of the individual payoff chart, we eliminated such uncertainty by fixing the driver’s attention level according to given possible scenario. That would be possible by a complete enumeration of possible scenarios: 1. Autonomous or self-driving technology features are operating while the driver seated is paying lots of attention (Features on, Attention high). 2. Autonomous or self-driving technology features are operating while the driver seated is not paying much attention (Features on, Attention low). 3. Autonomous or self-driving technology features are off regardless of the driver’s attention level (Features off, Attention high/low). 4. Autonomous or self-driving technology features are on with no driver seated or the driver seated is sleeping, making the presence of the driver meaningless (Features on, Attention 0).

First, we can comfortably exclude the third scenario in our discussion since such case is no different from the common auto accidents that involve non-autonomous, conventional vehicles that have dominated the auto market so far.

We are then left with the remaining three scenarios to analyze the impact of applying each of the three liability rules (No liability, Strict liability, and Negligence). We now know that driver’s attention level is three-tier: {“High” (of Scenario 1), “Low” (of Scenario 2) and “0” (of Scenario 4)}. To facilitate an easier understanding of effects of different rules, (natural) numbers instead of variables are used for the basic setups and the hypothetical scenarios. The cost of paying different levels of attention is thus set at {$15, $5, $0} respectively. Each scenario will be analyzed with different levels of attention of the manufacturer. The attention would mean comprehensive, holistic efforts of building self-driving technology as perfect and safe as possible. By default, reaching a degree of perfection (say, degree that guarantees no accident) is impossible. Therefore, the highest degree possible is named “Godlike”, with an exorbitant price of $50 per vehicle. “Elite” and “Normal” are remaining levels with the cost of $15 and $5 respectively. Cost of accident in case of an accident is set at h = $1,000,000.

With these fundamental numbers, we can create the following basic payoffs charts before “playing” the games. A list of different possibilities of a fatal accident is also given; it is the highest (1/10,000) when the driver pays no attention at all (or when the driver’s in fact absent) and the manufacturer bothers to pay to develop any higher level of technology (Normal). It is the lowest (1/100,000) when “Godlike” technology is met with “High” level of driver’s attention. In this paper, an accident always refers to a deadly accident that causes h.

Table 1: Possibility of a deadly accident involving such cars Driver’s attention level
High Low 0
Manufacturer’s self-driving Technology Level Godlike 1/100,000 1/80,000 1/50,000
Elite 1/80,000 1/50,000 1/20,000
Normal 1/40,000 1/20,000 1/10,000
Table 2: Expected harm or cost of accident in case of an accident Driver’s attention level
High Low 0
Manufacturer’s self-driving Technology Level Godlike $10 $12.5 $20
Elite $12.5 $20 $50
Normal $25 $50 $100
Table 3: Expected total social cost in case of an accident Driver’s attention level
High ($15) Low ($5) 0 ($0)
Manufacturer’s self-driving Technology Level Godlike ($50) $75 $67.5 $70
Elite ($15) $42.5 $40 $65
Normal ($5) $45 $60 $105

Given the basics, we know the socially efficient outcome is (Elite, Low) with total expected social cost of $40. Any deviation of behavior by any party from (Elite, Low) will bring an inefficient outcome. Let us see what outcome each rule induces under each scenario. For simplicity’s sake, Dollar signs ($) are omitted.

The first scenario would be (Features on, Attention high), in which a driver is deemed to be paying high level of attention. The manufacturer would behave in consideration of such factor under three rules and the equilibrium would result in following ways:

Table 4: Expected payoffs (costs) in case of an accident: No Liability Driver’s attention level: High
High Low 0
Manufacturer’s self-driving Technology Level Godlike (50, 25) (50, 17.5) (50, 20)
Elite (15, 27.5) (15, 25) (15, 50)
Normal (5, 40) (5, 55) (5, 100)
Table 5: Expected payoffs (costs) in case of an accident: Strict Liability Driver’s attention level: High
High Low 0
Manufacturer’s self-driving Technology Level Godlike (60, 15) (62.5, 5) (70, 0)
Elite (27.5, 15) (35, 5) (65, 0)
Normal (30, 15) (55, 5) (105, 0)
Table 6: Expected payoffs in case of an accident: Negligence (harsh court, x^=Godlike) Driver’s attention level: High
High Low 0
Manufacturer’s self-driving Technology Level Godlike (50, 25) (50, 17.5) (50, 20)
Elite (27.5, 15) (35, 5) (65, 0)
Normal (30, 15) (55, 5) (105, 0)
Table 7: Expected payoffs in case of an accident: Negligence (lenient court, x^=Normal) Drivers attention level: High
High Low 0
Manufacturer’s self-driving Technology Level Godlike (50, 25) (50, 17.5) (50, 20)
Elite (15, 27.5) (15, 25) (15, 50)
Normal (5, 40) (5, 55) (5, 100)

As equilibria show, none of the rules succeeded in achieving efficiency because the efficiency requires driver’s attention to be low. Yet in this scenario, best possible outcome is achieved by strict liability and negligence (harsh x^) rule with relatively low social cost of 42.5. We know that for efficiency higher driver’s attention level is not justified investment; it would be safer (1/50000 to 1/80000) but economic efficiency suffers because the very purpose of owning a self-driving car is increased convenience on part of the driver.

The second scenario would be (Features on, Attention low), in which a driver is deemed to be paying low degree of attention, say rocking to the music being played inside the car or doing other tasks and paying minimal attention to the driving. The resulting equilibrium would be tabulated in following ways:

Table 8: Expected payoffs (costs) in case of an accident: No Liability Drivers attention level: Low
High Low 0
Manufacturer’s self-driving Technology Level Godlike (50, 25) (50, 17.5) (50, 20)
Elite (15, 27.5) (15, 25) (15, 50)
Normal (5, 40) (5, 55) (5, 100)
Table 9: Expected payoffs (costs) in case of an accident: Strict Liability Drivers attention level: Low
High Low 0
Manufacturer’s self-driving Technology Level Godlike (60, 15) (62.5, 5) (70, 0)
Elite (27.5, 15) (35, 5) (65, 0)
Normal (30, 15) (55, 5) (105, 0)
Table 10: Expected payoffs in case of an accident: Negligence (harsh court, x^=Godlike) Drivers attention level: Low
High Low 0
Manufacturer’s self-driving Technology Level Godlike (50, 25) (50, 17.5) (50, 20)
Elite (27.5, 15) (35, 5) (65, 0)
Normal (30, 15) (55, 5) (105, 0)
Table 11: Expected payoffs in case of an accident: Negligence (lenient court, x^=Normal) Drivers attention level: Low
High Low 0
Manufacturer’s self-driving Technology Level Godlike (50, 25) (50, 17.5) (50, 20)
Elite (15, 27.5) (15, 25) (15, 50)
Normal (5, 40) (5, 55) (5, 100)

It is evident that paying low attention does not guarantee an automatic efficiency under any liability rule. According to equilibria above, we again see manufacturer behaving same manner under any given liability rule. Here the two rules were successful in giving correct incentive to the manufacturer: strict liability and negligence (harsh course), both with social costs of 40. As with the two best possible outcomes of the previous scenario (27.5, 15), the manufacturer is bearing the burden of accident while the driver is shouldering her (lowered) cost of attention under the efficient outcomes (35, 5).

Other rules failed to induce efficiency because under No liability and Negligence (lenient court), manufacturer is not incentivized enough to take any higher degree of attention than “Normal.” Another interesting thing to notice is that under two efficient outcomes, the manufacturer is settling for “Elite” level, because it is more economically beneficial for manufacturer to accept an increased chance of accident than to enjoy lower chance at the expense of huge expense of “Godlike” level. That is “Godlike” level is not justified investment for the manufacturer, even when the Court is harsh.

The last scenario is (Features off, Attention 0), in which a driver’s influence on the self-driving vehicle is 0. This happens when the driver is absent (unmanned vehicle) or the driver is seated but asleep. The resulting equilibrium is shown below:

Table 12: Expected payoffs in case of an accident: No Liability Drivers attention level: 0
High Low 0
Manufacturer’s self-driving Technology Level Godlike (50, 25) (50, 17.5) (50, 20)
Elite (15, 27.5) (15, 25) (15, 50)
Normal (5, 40) (5, 55) (5, 100)
Table 13: Expected payoffs in case of an accident: Strict Liability Drivers attention level: 0
High Low 0
Manufacturer’s self-driving Technology Level Godlike (60, 15) (62.5, 5) (70, 0)
Elite (27.5, 15) (35, 5) (65, 0)
Normal (30, 15) (55, 5) (105, 0)
Table 14: Expected payoffs in case of an accident: Negligence (harsh court, x^=Godlike) Drivers attention level: 0
High Low 0
Manufacturer’s self-driving Technology Level Godlike (50, 25) (50, 17.5) (50, 20)
Elite (27.5, 15) (35, 5) (65, 0)
Normal (30, 15) (55, 5) (105, 0)
Table 15: Expected payoffs in case of an accident: Negligence (lenient court, x^=Normal) Drivers attention level: 0
High Low 0
Manufacturer’s self-driving Technology Level Godlike (50, 25) (50, 17.5) (50, 20)
Elite (15, 27.5) (15, 25) (15, 50)
Normal (5, 40) (5, 55) (5, 100)

As seen in the first scenario, efficiency is achieved under none of the rules because efficiency requires driver’s attention to be “Low”; in this case driver’s paying inefficient amount of attention, which is “0”. Yet we still find out which rule performs the best among the four and it turns out that strict liability produces correct amount of incentive for manufacturer to choose “Elite” level with relatively low social cost of 65. Strict liability does so while no liability rule and negligence (lenient court) causes manufacturer to choose cheapest option “Normal”, and negligence (harsh court) causes “Godlike.” Unlike previously examined scenarios, negligence (harsh court, x^=Godlike) does induce “Godlike” because cost of shouldering increased chances of accident becomes so expensive in this scenario as driver is paying no attention and thus creating higher chances of accident in general.

Upon the completion of an exhaustive analysis of each scenario, we naturally find strict liability to be superior to other rules. In last scenario, we would make sure to avoid adopting no negligence rule because social cost is prohibitively expensive; no one is truly held liable for the economic consequences of highest chance of deadly accident. Adopting negligence rule is a risky bet since there is no assurance that the Court would behave harsh towards the manufacturer. Such concern is found in previous two scenarios where uncertainty of the Court behavior would cause the manufacturer to deviate from the optimal behavior. Even if there is 100% assurance that it would choose to be harsh, strict liability still prevails because strict liability is the best performer across the different liability rules.

With other liability rules (Strict liability/Negligence with a defense of contributory negligence, and comparative negligence) left unexamined and other factors (i.e. activity levels, varying sales in response to manufacturer’s precaution) not factored into, it still seems like strict liability would perform the best, at least in this fictitious case in which efficiency is achieved when manufacturer settles for “Elite” level and the driver chooses to pay “Low” level of attention, hence balancing the benefit of owning autonomous cars and the moderate chance of accident.

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

James DongA Shin is a co-founder of JS & Associates and a Senior Partner at Yonsei ULS. Please be advised: the comment, writing, or column does not represent the official position of YULS

Logic Games: A Dissection

[Updated] Powerscore 6 Logic Games Question Types

[Updated] Cambridge and Powerscore Conversion Table applied

  • Linear Games / Simple Ordering
  • Advanced Linear Games / Complex Ordering
  • Grouping Games / In & Out Grouping + Grouping (Distribution)
  • Grouping/Linear Combination Games / Determined Assignment
  • Pure Sequencing Games / Relative Ordering
  • The Forgotten Few
  • Miscellaneous

 

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Back to 2017 LSAT Study Group Page ]

 

Gabin

“Quit playing Logic Games with my heart”

Having served as the seventh President, Gabin is currently a Senior Partner of the Advisory Board of YULS.

 

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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.

#03 ULS Fall Session 2017

Session #03 @ Theology Hall Rm #B103

1830 – 2100 HRS

25 SEP 2017 (月)

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

KakaoTalk_20171002_111132688.jpg

Agendas

  • International Environmental Law, Malcolm N. Shaw
  • International Environmental Law, Pierre-Marie Dupuy

Discussions

Q) Definition and Application of Due Diligence

“The appropriate standard for the conduct of states [under IEL] is… the Test of Due Diligence… States in general are not automatically liable for damage caused irrespective of all other factors… This Test undoubtedly imports an element of flexibility into the equation and must be tested in the light of the circumstances of the case in question” (Shaw, 621).

 

Q) Ritania’s Argumentation Against Amalea regarding trans-boundary Environmental Impact Assessment (EIA)

I. There is no obligation under general international law nor Malachi Gap Treaty (MGT) that requires Ritania to conduct an trans-boundary EIA.

II. Even if there were such an obligation, Ritania had conducted a trans-boundary EIA. In the Pulp Mills case, the Court held that ‘it is for each State to determine in its domestic legislation or in the authorization process of the project, the specific content of the environmental impact assessment required in each case.” Ritania’s action was in accordance to this reaffirmed ruling by the ICJ that the content of the customary rule is set by the domestic law of States. 

 

Q) 1970 Declaration on Principles of International Law concerning Friendly Relations and Co-operation among States in accordance with the Charter of the United Nations

  • United Nations General Assembly Resolution 2625 (XXV)
  • Not Law per se

Reading Assignment [ 253 HRS ]

  • 10 Cases for ULS IMCC 2017 @ HERE
  • Martin Luther King Jr., Letters from Birmingham Jail (Advanced)

Next Session : 06 OCT 2017 (金) 1300 HRS @ Shinchon Station Study Cafe

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YONSEI UNDERWOOD LAW SOCIETY “PACTA SUNT SERVANDA”

[IRAC] What are available remedies for Amalea

Issue : Is Amalea entitled to seek compensation from Ritania for economic losses caused by the landslide?

Setting aside the issue of whether Amalea was required to satisfy the Exhaustion of Local Remedies Rule in order to gain locus standi which has been dealt in a separate IRAChere we shall analyze under which certain circumstances is compensation the proper method of reparations.

Analysis :

The principle expressed in the Chorzow Factory case that “the perpetrator of an internationally wrongful act is under an obligation to make reparations for the consequences of violation” is now reflected in the Article 34 of the ILC Articles on State Responsibility (2001) which envisage that reparation for an injury caused by an internationally wrongful act shall take the form of restitution, compensation, and satisfaction, either singly or in combination. 

Representation for Ritania is NOT permitted to acknowledge the violation on Ritanian government’s part of any obligation under international law. Thus arguing that “Ritania has no obligation to compensate Amalea for any loss or damage allegedly caused by the 2014 landslide.” Therefore, Counsel should be able to strategically argue on two levels: (1) that Ritania had not violated any obligation under international law and (2) even if it had, compensation is NOT the proper method of reparations.

Whether there has been in fact a violation of an obligation under PIL on Ritania’s side will be discussed in a separate IRAC. Let us discuss here when and how compensations are awarded (of course setting aside of Amalea’s locus standi based on Exhaustion of Local Remedies Rulean issue which also will be dealt in a separate IRAC). Here, we will be discussing the later part of Ritania’s argumentation and Amalea’s claim for compensation. 

 

i. Whether the Court has Jurisdiction to award Compensation

In the Gabcikovo-Nagymaros Project case, ICJ declared that “it is… well established an international court or tribunal which has jurisdiction with respect to a claim of State responsibility has, as an aspect of that jurisdiction, the power to award compensation for damage suffered.”

ii. Compensation as a form of Reparation

Article 36 of ARSIWA deals with compensation for damage caused by an internationally wrongful act, to the extent that such damage is not made good by restitution. The notion of “damage” is defined inclusively in Article 31, paragraph , as any damage whether material or moral. Compensation is specified to cover “all financially assess-able damage including loss of profits so far as this is established in the given case. The qualification “financially assess-able” is intended to exclude compensation for what is sometimes referred to as “moral damage” to a State, i.e. the affront or injury caused by a violation of rights not associated with actual damage to property or persons: this is the subject matter of satisfaction, dealt with in Article 37.” In any case, the role of compensation is to fill in any gaps so as to ensure full reparation for damage suffered. (i.e.e Lusitania case)

PCIJ wrote “Restitution in kind, or if this is not possible, payment of a sum corresponding to the value which a restitution in kind would bear; the award, if need be, of damages for loss sustained which would not be covered by restitution in kind or payment in place of it – such are the principles which should serve to determine the amount of compensation due for an act contrary to international law.”

Entitlement to compensation for such losses is supported by extensive case law, State practice and the writings of jurists.

The definition of “restitution” under ARSIWA is “to re-establish the situation which existed before the wrongful act was committed” which seems to qualify as a “material impossibility” under paragraph (a). Paragraph 30 of the Compromis writes “ILSA noted that there was doubt among experts in the field whether the number of Dorian wrasse in the Sirius Plateau would return to pre-landslide levels before the end of the century.” The firmly established primacy of restitution while respected, cannot be applied here; hence, Amalea would argue that compensation is the proper method of reparations.

 

iii.  Ritanian Claim that Amalea has contributed to the, if any existed, Damage

Pursuant to Article 39 of ARSIWA which writes that “in the determination of reparations, account shall be taken of the contribution to the injury by willful or negligent action or omission of the injured State or any person or entity in relation to whom reparation is sought.” Article 39 deals with the situation where damage has been caused by an internationally wrongful act of a State, which is accordingly responsible for the damage in accordance with articles 1 and 28, but where the injured State, or the individual victim of the breach, has materially contributed to the damage by some willful or  negligent act or omission. (comparable to “contributory negligence”, “comparative fault”, “faute de la victime”, etc” in domestic systems) The conduct of the injured State should be taken into account in assessing the form and extent of reparation. This is consonant with the principle that full reparation is due for the injury – but nothing more – arising in consequence of the internationally wrongful act. In the LaGrand case, ICJ recognized that the conduct of the claimant State could be relevant in determining the form and amount of reparation. This has been widely recognized in the literature and in State practice (Delagoa Bay Railway case and S.S. Wimbledon)

The landslide was detected on 10 December of 2014, however commercial fishing of the Dorian wrasse by Amalea was halted in March 2017 (Para 28 and 30 of Compromis). Ritania may argue that had Amalea’s claim that there was a significant risk of trans-boundary harm, not only does her conduct seem incompatible with the claim, it evidently has been willfully contributory to the damage – if any – she has suffered. 

In any case, we must note that Article 39 can be invoked only after having admitted to the internationally wrongful act on Ritania’s side to reduce the quantity of compensation.

 

iv. Amalea’s Claim for Compensation :

On the other-hand, Counsel for Amalia will cite Article 31 of ARSIWA which states that “the responsible State is under an obligation to make full reparation for the injury caused by the internationally wrongful act… Injury includes any damage, whether material or moral, caused by the internationally wrongful act of a State. Amalea would need to have proven in their earlier half of the argumentation that there indeed was an internationally wrongful act committed by Ritania in order to claim for “full reparation.” The PCIJ in Charzow Factory case stated,

“It is a principle of international law that the breach of an engagement involves an obligation to make reparation, in an adequate form… is that reparation must, as far as possible, wipe out all the consequences of the illegal act and reestablish the situation which would, in all probability, have existed if that act had not been committed. Restitution in kind, or, if this is not possible, payment of a sum corresponding to the value which a restitution in kind would bear; the award; if need be, of damages for loss sustained which would not be covered by restitution in kind or payment in place of it – such are the principles which should serve to determine the amount of compensation due for an act contrary to international law”

 

Damage without Any Legal Wrong (Damnum sine iniuria)

Damnum sine iniuria refers to a legal situation in which a party’s legal right is not violated by another but where there is damage. Generally, “causing of damage, however substantial, to another party is not actionable in law unless there is also violation of a legal right.”

Legal Wrong without Damage (Iniuria sine damno)

Injuria sine damno means “violation of a legal right without causing any harm, loss or damage to the other party. It is just reverse to the maxim damnum sine injuria.”

v. Clean Hands Doctrine

The Clean Hands Doctrine, on the other hand, is “a rule of law that a person coming to court with a lawsuit or petition for a court order must be free from unfair conduct (have “clean hands” or not have done anything wrong) in regard to the subject matter of his/her claim.” This is a procedural argument contesting Amalea’s standing at the ICJ for her excessive fishing activity which caused irreparable damage to the marine environment of the Malachi Gap. Amalea’s “lack of clean hands” bars her from pursuing legal action against Ritania.

Additionally, Ritania may also raise the issue of the complexity of assessing the measure of environmental damage. In the US, restoration of damaged environments has been described as a ‘fledgling activity shot through with uncertainty and controversy.’ Should it be by reference to the costs of measures of reinstatement, or on the basis of an abstract quantification calculated in accordance with a theoretical model, or on some other basis? In any case, Amalea at this point is NOT requesting for a certain amount of compensation, but rather that the Court confirm that it may “seek compensation.” 

 

Conclusion :

Counsel for Amalia will cite Article 31 of ARSIWA which states that “the responsible State is under an obligation to make full reparation for the injury caused by the internationally wrongful act… Injury includes any damage, whether material or moral, caused by the internationally wrongful act of a State. Amalea would need to have proven in their earlier half of the argumentation that there indeed was an internationally wrongful act committed by Ritania in order to claim for “full reparation.” 

Counsel for Ritania (for they cannot admit Ritania’s liability) will attempt to argue (i) the lack of standing of Amalea and (ii) inadmissibility of Amalea’s claim at the ICJ. Should the Court reject these arguments and accept Amalea’s claim that Ritania is responsible, Counel for Ritania can argue that, in any case, monetary compensation is not the proper method of reparation. If this should fail, Ritania should attempt to argue for the reduction of the amount of compensation. 

 

Rule :

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

ARSIWA Article 31 Reparation

ARSIWA Article 34 Forms of Reparation

ARSIWA Article 35 Restitution

ARSIWA Article 36 Compensation

ARSIWA Article 37 Satisfaction

ARSIWA Article 39 Contribution to Injury

Clean Hands Doctrine

 

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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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2017 IMCC Official Rules

This is an abbreviated version of the 2017 IMCC Official Rules released for public view. Please contact us via yonsei.uls@gmail.com to gain access to the full version.

The Official Rules of The 2017 Yonsei ULS Intramural Moot Court Competition

 

Official Rule 5.0 Final Round Procedures

5.0 General Procedures

The Final Round will consist of 100 minutes of oral pleadings. Applicant and Respondent are each allotted 50 minutes. Oral presentations during the Final Round will be made by two Members from each Team. Each Team may divide amongst themselves the allotted 45 minutes for (a) first Oralist, (b) second Oralist, and (c) rebuttal (for Applicant) or sur-rebuttal (for Respondent). Total time allocated to one Oralist including rebuttal or sur-rebuttal may not exceed 30 minutes. Time allocated for but not used by first Oralist may be used by the second Oralist, however, cannot be saved for rebuttal or sur-rebuttal.

5.1 Extension of Time at Judges’ Discretion

Judges may, at their discretion, extend total Team oral argument time beyond the 45-minute allocation, and Oralists asked by the judges to expand upon arguments may, in this instance, exceed the 30-minute individual limit.

5.2 Five Judge Panels

Five judges will be employed for the Final Round.

5.3 Oral Proceedings

The order of the pleadings in the Final Round is: Applicant 1 > Applicant 2 > Respondent 1 > Respondent 2 > Rebuttal (Applicant 1 or 2) > Sur-rebuttal (Respondent 1 or 2). Once an Oralist has completed his or her main pleading, that Oralist may not make any additional argument except for rebuttal or sur-rebuttal. This applies irrespective of whether the pleading Team uses all of the time it has allocated for its main pleadings.

5.4 Rebuttal and Sur-rebuttal

Each Team may reserve up to ten minutes for rebuttal or sur-rebuttal. As a courtesy to the Judges, Teams should announce at the beginning of their oral argument whether they intend to reserve time for rebuttal or sur-rebuttal and how much time they intend to reserve, although a failure to do so will not entail waiver of the right to rebuttal or sur-rebuttal. Only one of the two Oralists participating in the proceedings may deliver the rebuttal or sur-rebuttal, but the Team need not indicate in advance which of the pleading Team Members will do so. The rebuttal shall immediately follow Respondent 2, and the sur-rebuttal shall immediately follow the rebuttal. Teams may waive their rebuttal or sur-rebuttal.

5.5 Scope of Pleadings

A Team’s oral pleadings will be limited to the scope of the Team’s Memorial. The scope of the Applicant’s rebuttal is limited to responding to the Respondent’s primary oral pleadings, and the scope of the Respondent’s sur-rebuttal is limited to responding to the Applicant’s rebuttal. If the Applicant waives rebuttal, Respondent’s sur-rebuttal is automatically waived as well. Although judges are admonished to enforce the limits on the scope of rebuttal and sur-rebuttal, and make a violation of this Rule into account in evaluating an Oralist’s performance, there is no discretionary or non-discretionary Penalty for exceeding the scope of rebuttal or sur-rebuttal.

5.6 Of Counsel

During the Final Round, one additional Team Member may sit at the counsel table with the two Oralists, as counsel. Of Counsel will be a Senior Member of Yonsei ULS.

5.7 Competition Communications

No written communication or exhibits may be presented or delivered by any Team Member to any Judge.

5.8 Oral Courtroom Communications between Counsel and Judges

Each Oralist may communicate with the judges, and the judge may communicate with that Oralist, only during his or her allotted time. In extraordinary circumstances, the Judges may communicate directly with either Team’s counsel table (for example, to clarify the spelling of an Oralist’s name or to request that a Team remain quiet during its opponent’s oral presentation).

5.9 Oral Courtroom Communication and Activity at Counsel Table

To prevent disruption, communication at the counsel table between Team Members may be in writing only. Teams and team-affiliated spectators shall avoid all unnecessary noise, outbursts, or other inappropriate behavior that distracts from the arguements in progress.

5.10 Written Courtroom Communication

Written communication during the Oral Round shall be limited to written communication among Team Members seated at the counsel table. No other written communication may take place between any combination of the following parties: judges, the Oralist, Team Members seated at the counsel table, or spectators.

5.11 Spectators

The Final Round shall be open to the public. The presence of Team Advisors or other spectators affiliated with the Team is permitted in the courtroom during the Final Round. Teams are responsible for ensuring that their spectators do not engage in any disruptive behavior.

5.12 Audio and Videotaping

No audiotaping or videotaping of oral pleadings is permitted without the advance permission of the entire panel of Judges, the two participating Teams, and the President of Yonsei Underwood Law Society. In no circumstances may participating Teams view or listen to any video or audiotape of the Final Round until after the completion of the Competition. Yonsei Underwood Law Society reserves all rights to the audiotaping and videotaping, or any other form of audio or visual reproduction of the Final Round or part thereof. All Teams participating will be deemed to have consented to the taping and broadcasting of the Final Round.

5.13 Computers, Mobile Phones, and other Electronic Devices in Courtrooms

During an Oral Round, Oralists at the podium and participants seated at counsel table may not operate, for any purpose, mobile phones, laptop computes, PDAs, or any other computing or electronic devices, including but not limited to those which are internet-enabled or data-capable, or have instant messaging capabilities. All such devices must be turned off and removed from sight as soon as the bailiff first enters the courtroom, and must remain off and out of sight until the conclusion of the Oral Round. A Team that violates this Rule will forfeit the Final Round.

5.14 Timekeeping Devices in the Courtroom

The official time of the match shall be indicated by the bailiff. No one other than the bailiff may display timecards or otherwise signal to the Oralist how much time is left. Teams may use silent digital or analog watches at the podium or at counsel table. However, the use of any such device which, in addition to keeping time, is capable of either (a) sending or receiving data to another person or to the Internet, or (b) storing text data, shall be prohibited at counsel table and at the podium, even if such functionality is turned off.

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#02 ULS Fall Session 2017

Session #02 @ Theology Hall Rm #B103

1830 – 2100 HRS

18 SEP 2017 (月)

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

20170918 ULS Session #002 003

Agendas

  • International Court of Justice
  • Preparation for ULS Workshop

Discussions

Q) Distinction between “Arbitration” and the Courts

 Arbitration

Litigation at Court

  1.  State Parties to the dispute my choose Arbitrators or Judges with greater experience and knowledge in the special field of dispute
  2. Results may be classified and not released to the public
  3. Generally takes less cost and shorter duration in comparison to Courts
  4. State Parties to the dispute may choose location of arbitration as well as laws to be applied

State Parties may agree upon the language, procedure, dates of the dispute resolution. Concern with Arbitration lies in that the predictability of the results may be lower in comparison to the Courts. Arbitral awards are enforced in all signatory States of the 1958 Convention on the Recognition and Enforcement of Foreign Arbitral Awards (New York Convention).

  1.  Cannot choose Judge
  2. Results are made public
  3. Takes long and can be costly
  4. National Laws of the Seat of the Court applies (generally)

 

Click HERE to go to Course Review on Arbitration: Theory and Practice

Q) “Since the aim of the election procedures relating to the composition of the Court is to produce a judicial body of independent members rather than state representatives, /  the Statute provides in article 31 that judges of the nationality of each of the parties in a case before the Court shall retain their right to sit in that case. However, the effect of this is somewhat reduced by the provision in that article that the parties to a dispute before the ICJ are entitled to choose a person to sit as judge for the duration of that case, where they do not have a judge of their nationality there already” (Shaw, 1061)

Most of our Members found the phrasing of the above sentences quite peculiar during the session, and we have come to the conclusion that there are certain underlying assumptions of the author that are not quite obvious for all readers. 

Our common understanding is that “the effect” of Article 31 that aims at producing a judicial body of independent members rather than state representatives  is “somewhat reduced by” allowing parties to a dispute to choose a judge of their liking. The latter assumes that States will attempt to elect judges that are likely to support their claims rather than “a judicial member of independent members.” These judges may or may not be of the electing States’ nationalities, however, the author seems to assume that this will be likely. 

Q) Comparison of Jurisdiction of v. Admissibility v. Standing at International Court of Justice

 Jurisdiction

Admissibility of Claim

Standing of a Party

Jurisdiction ratione personae

  • Consent of the Parties
  • 3 Criteria for accepting or rejecting Jurisdiction

(1) Consistency with previous case-law in order to provide predictability as ‘consistency is the essence of judicial reasoning’

(2) Certitude (the ground most secure in law)

(3) As the principal judicial organ of the UN, ‘mindful of the possible implications and consequences for the other pending cases’

The Special Agreement or Compromis resolves the issue of ICJ’s jurisdiction over the dispute between Amalea and Ritania. 

The consent given by both States was not limited in ratione temporisratione loci ratione personae or ratione materiae.
Brownlie writes that the issue of locus standi or standing before the Court falls under the issue of admissibility

  • Nonexistence of a Legal Dispute
  • Exhaustion of Local Remedies Rule (Diplomatic Protection)
  • Litispendence
Question of Receivability of Request (Process of Seisin)

Shaw writes that “the question of standing or jurisdiction ratione personae… logically arises before a consideration of jurisdiction and admissibility.”

“Standing or locus standi is defined as the requirement that a State seeking to enforce the law establishes a sufficient link between itself and the legal rule that forms the subject matter of the enforcement action.
That sufficient link is the existence of an interest in the matter. However, the requirement of a mere interest would be futile since, as affirmed by Judge Morelli, (e)ach State is the judge of its own interest.’ 
Therefore, not every interest provides individual States with standing, rather only those interests with  juridicaexpression and clothed in legal form,’ i.e., legal interests.”
– Locus Standi before the ICJ for Violations of the World Heritage Convention
  • Clean Hands Doctrine

Reading Assignment [ 60 pages, 162 HRS ]

  • International Environmental Law (Shaw, 618 – 632, 641 – 643p)
  • International Environmental Law (Dupuy, 51 – 100p)
  • [Advanced] Martin Luther King, Jr., Letter from Birmingham Jail

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Next Session : 25 SEP 2017 (月) 1830 HRS @ Yonsei Theology Hall

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YONSEI UNDERWOOD LAW SOCIETY “PACTA SUNT SERVANDA”

[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.

[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

20170913.png

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”