[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 4.0 Discovery of Evidence

4.0 Exchange of Evidence

All important discovery of evidence shall be notified immediately to the other Team and the document transferred within the consecutive 48 hours of the notification.

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 50 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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YONSEI UNDERWOOD LAW SOCIETY “PACTA SUNT SERVANDA”

#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 – 1945
  • 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 (Greece v. United Kingdom, 1924), 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 with Bulgaria, Hungary and Romania (1949), the Court in its Advisory Opinion 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 (1998), 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 inquire 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 the 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 (Germany v. United States of America, 2001),  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

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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 Worldwide – Application Requirements

Readings

  • The Law School Admission Game, Ann K. Levine
  • The Law School Decision Game: A Playbook for Prospective Lawyers, Ann, K. Levine

 

KakaoTalk_20170901_093719938

General Requirements for Application [ Go to #009 ]

  • Personal Statement
  • CV
  • 2 Letter of Recommendations

 

Scholarships for LLM Programs

  • iefa
  • UKCISA
  • FindAPhD
  • The Association of Commonwealth Universities

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LLM Programs in Great Britain

  • LLM Guide, Master of LLM Programs Worldwide
  • Guardian Rankings 2018 HERE
 – 15 Dec 2017

Edinburgh University Law School

School of Law 

University of Edinburgh

David Hume Tower

George Square

Edinburgh EH8 9JX

Scotland, UK

via EUCLID

LLM in International Law

School of Law, Queen Mary University of London (QMUL)

Centre for Commercial Law Studies (CCLS)

School of Law
Queen Mary University of London

67-69 Lincoln’s Inn Fields

London WC2A 3JB

ONLY APPLY TO ONE LLM

No Application Fee

 

LLM in Public International Law (£20,700.00) PFQM-1MQS-09 / 0005

Guidance for Application

http://www.qmul.ac.uk/postgraduate/taught/funding_masters/

 

Critical Thinking and Writing in Law Program (Support)

15,000 word dissertation

 

The Dickson Poon School of Law, King’s College London (KCL)

Admissions Office
Capital House
42 Weston Street
LondonSE1 3QD
United Kingdom

application fee is £55.00 GBP

deposit fee is  £2000.00 GBP

LLM (Master of Laws)
 

University of East Anglia (UEA)

Postgraduate Taught Admissions Office,

LSB Building, Room 1.120

University of East Anglia
Norwich Research Park
Norwich
NR4 7TJ

Instructions on Applications

LLM (Master of Laws) (£14,800)

University College London (UCL), Faculty of Laws

UCL Laws
Bidborough House
38-50 Bidborough Street
LondonWC1H 9BT
United Kingdom

 

LLM (Master of Laws) + Specialty in Public International Law (£21,440)

Fees and Funding

Application Online

 12,000 word Independent Research Essay

Durham Law School

Apply HERE

LLM in International Law and Governance (£15,700.00)

Law and Global Justice (LGJ)

LLM in Laws

Dundee Law School, University of Dundeevia UCAS LLM in International Law and Security 

University of Nottingham

 

LLM in International Criminal Justice and Armed Conflict

LLM in International Law

LLM in Public International Law

 

   

School of Law, University of Leeds

LLM in International Law (£18,000.00)

University of Glasgow

LLM in International Law

LLM in International Law and Security

University of Aberdeen, School of Law

Taylor Building
AberdeenAB24 3UB
United Kingdom

Apply Online HERE or via UCAS

LLM, International Trade Law and Treaty Negotiation with Professional Skills (£18,900.00) SEP – or JAN –

LLM, International Law and Strategic Studies (£15,000.00) SEP –

LLM, International Law and International Relations (£15,000.00) SEP –

LLM, Public International Law (£15,000.00) JAN or SEP –

Not Open Yet 

CB Davidson Fund

 

LLM Programs in Europe

Universiteit Leiden

LLM in Public International Law

Amsterdam Law School

LLM in International and European Law

LLM in Public International Law

Erasmus School of Law, Erasmus University Rotterdam

LLM in International and European Union Law

LLM Programs World-wide

Sydney Law School, University of Sydney

LLM in International Law

Melbourne Law School, University of Melbourne

LLM

Faculty of Law, National University of Singapore (NUS)

International and Comparative Law

[ #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.

 

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