Hope College Model United Nations International Court Of Justice

Transcription

1 HOPE COLLEGE MODEL UNITED NATIONS Hope College Model United Nations International Court Of Justice

2 The International Court of Justice, known also as the World Court, was established in 1945 and began to function in It is a successor of and resembles the Permanent Court of Justice, created under the League of Nations. By joining the UN, each country binds itself, in the words of the Charter, "To comply with the decision of the International Court of Justice in any case to which it is a party." If any party to a case violates this obligation, the other party "may have recourse to the Security Council, which may, if it deems necessary, make recommendations or decide upon measures to be taken to give effect to the judgment." The Charter further provides that non-members of the UN may also become parties to the Statute of the ICJ "on conditions to be determined in each case by the General Assembly upon recommendations of the Security Council." The seat of the Court is the Peace Palace at The Hague in the Netherlands, but it can meet elsewhere if it so desires. The Court is "permanently in session, except during judicial vacations," and the judges are bound to "hold themselves permanently at the disposal of the Court." The Court consists of 15 independent judges, known as "members" of the Court. They are elected for nine years, "from among persons of high moral character" without the consideration of nationality, except that no two judges of the same nationality may serve concurrently. They also reflect all the major legal systems in the world. Only states can be parties in cases before the World Court. Hence, proceedings may not be instigated by or against an individual, corporation, or other entity that is not a state under international law. However, if certain rules are satisfied, a state may take up a case involving one of its nationals. The consent of the Court's right to take up a case comes about through one of the following three ways: 1. Through a specific agreement between the parties to submit a dispute to the Court. 2. Through specific clauses contained in treaties and conventions. 3. Through voluntary recognition in advance of the compulsory jurisdiction of the Court in specified types of disputes, such as: a. the interpretation of a treaty; b. any question of international law; c. the existence of any fact which, if established, would constitute a breach of international obligation; d. the nature or extent of the reparation to be made for the breach of an international obligation. (This is known as the optional clause. If a country is not a signatory to this, it need not accept the jurisdiction of the Court. The Court may not adjudicate any dispute that a nation deems domestic. This leaves the country free to reject the jurisdiction). The Court deals basically with two types of adjudication: legal disputes and advisory opinions. Examples of legal disputes are issues of sovereignty over disputed territory or territorial possessions, the international law of the sea, commercial interests of property rights, and differences in interpretations of specific bilateral or multilateral treaties. Advisory opinions are available at the request of either the General Assembly or the Security Council on any legal question and also from other UN organs and specialized agencies when authorized. In these cases the Court does not render a judgment, but provides guidance for the international body concerned. This guidance is not enforceable, but is received with respect as a legal guideline. In fact, some of the Court's greatest influence has been exercised through advisory opinions.

3 Statute of the Hope College Model International Court of Justice (HCMICJ) Article 1 The Hope College Model International Court of Justice, established by the Hope College Model United Nations as the principal judicial organ of the HCMUN, shall be constituted and shall function in accordance with the provisions of the present Statute. Chapter I Organization of the Court Article 2 The court shall consist of fifteen (15) members (Judges), no two of whom may be nationals of the same state. Members will be appointed by member states included on a list of states/members of the International Court of Justice as provided by the HCMUN Secretariat. Article 3 No member of the court may exercise any political or administrative function, or engage in any other occupation as a professional in the Hope College Model United Nations. Article 4 1) No member may participate in the decision of any case in which he/she has previously taken part as agent, counsel, or advocate for one of the parties before the court. 2) Any doubt on this point shall be settled by decision of the Court. Article 5 Every member of the court shall exercise his/her power impartially and conscientiously. Article 6 Unless prevented from attending by illness or other serious reasons duly explained to the President, Judges shall be bound to hold themselves permanently at the disposal of the Court during the HCMUN session. 1) The full court shall sit on each decision; Article 7 2) A quorum of nine is necessary to conduct business unless deemed otherwise by the President because of emergency or unusual circumstances. Article 8 The Secretariat shall frame rules for carrying out the functions of the Court. In particular, it shall lay down the rules of procedure. Article 9

4 1) Judges of the nationality of each of the parties shall retain their right to sit in the case before the court. 2) If the court includes upon the Bench a member of the nationality of one of the parties, any other party may choose to sit as a member of the court. 3) If the court includes upon the Bench no member of the nationality of the parties, each of the parties may proceed to choose a member. 4) Judges chosen as laid down in Paragraphs 1,2,3 of this article shall take part in the decision on terms of equality with their colleagues. Article 10 1) The personnel of the Hope College Model International Court of Justice for each division shall be: a. The Chief Justice, a member of the Secretariat staff, who shall preside over the session; b. Members, selected according to the procedure stated in article 2; c. The Registrar, a member of the Secretariat staff who will keep all records and handle communication as directed by the Chief Justice; d. Counsels, one for each party, who are members of the Secretariat staff; e. Agents, two for each party, who are members of the delegations. 2) Duties of all personnel are outlined in the HCMUN handbook.

5 Chapter II Competence of the Court Article 11 1) Only states may be parties to cases before the Court. 2) The Court shall be open to states who are parties to the present Statute. (All members of the Hope College Model United Nations are parties to the Statute). 3) The Conditions under which the Court shall be open to other states shall be laid down by the Secretary- General of the HCMUN, but in no case shall such conditions place the parties in a position of inequality before the Court. Article 12 The Court may request information relevant to cases before it from the Agents, Secretariat and other organs of the HCMUN and shall accept relevant information presented by these organizations on their own initiative. Article 13 1) The jurisdiction of the HCMICJ comprises all cases which the Secretariat refer to it and all matters specially provided for under other sections of the Statute under other official rules and regulations for the Hope College Model United Nations. 2) States party to the present statute may at any time accept the jurisdiction of the Court in relations to any other states accepting the same obligations in all legal disputes concerning: a. The interpretation of a treaty; b. Any question of international law; c. The existence of any fact which, if established, would constitute a breach of an international obligation; d. The nature or extent of the reparation to be made for the breach of an international obligation. 3) In the event of a dispute as to whether the Court has jurisdiction, the matter shall be settled by a decision of the Court. Article 14 1) The Court, whose function is to decide disputes in accordance with international law such as are submitted to it, shall apply: a. International treaties (conventions) whether general or particular, establishing rules expressly recognized by the contesting nations; b. International custom, as evidence of a general practice accepted by law; c. The general principles of law recognized by civilized nations; d. Judicial decisions, United Nations resolutions, decisions, and actions, and the teachings of the most highly publicized writers of the various nations as subsidiary means for determining rules of law. 2) This provision shall not prejudice the power of the court to decide a case in equity and in good conscience if the parties agree thereto.

6 1) The official language of the Court shall be English. 1) The parties shall be represented by Agents. Chapter III Rules of Procedure Article 15 Article 16 2) Agents may have the assistance of Counsels provided by the Secretariat. However, the Counsels may not speak before the Court. Article 17 1) The procedure shall consist of two parts: written and oral. 2) The written shall consist of the communication to the court in the form of notepassing; also all documents and papers in support of the case being presented. 3) These communications shall be made through the Registrar, in the order and within the time frame fixed by the Court. 4) A copy of every document produced by one party shall be made available to the other party and members of the court upon request. 5) The oral proceedings shall consist of the hearing by the Court of the Agents, a cross-examination of agents, and questioning period by Justices. Article 18 The hearing of the case shall be under the control of the Chief Justice of the Court, who shall preside over the session. Article 19 The hearing of the Court shall be public, unless the Court shall decide otherwise, or unless the parties demand that the public not be admitted. Article 20 Minutes shall be made at each hearing and signed by both the Registrar and by the Chief Justice. Article 21 1) The Members of the Secretariat shall make orders for the conduct of the Case, shall decide the form and time in which each party must conclude its arguments. 2) These orders shall not be disputed by other members of the Court or any parties presenting cases before the court. 3) All decisions of the Chief Justice are final and without appeal. Article 22

7 The Court may call upon the parties to produce any documents and/or to supply any explanation at any time, even before the hearings begin. Formal note shall be taken of any refusal. Article 23 During the hearing, any relevant questions are to be put to the agents and counsels only at the appointed time as outlined in Article 21. Article 24 After the Court has received the proofs and evidences within the time specified for that purpose, it may refuse to accept any further oral or written evidence that one party may desire to present unless it has the consent of the opposing party. Article 25 1) Whenever one of the parties does not appear before the Court, or fails to defend its case, the other party may call upon the Court to decide in its favor. 2) The Court must, before doing so, satisfy itself, not only that it has jurisdiction in accordance with Article 11, but also that the claim is well-founded in fact and law. Article 26 1) When, subject to the control of the Court, the parties have completed their presentation of the case, the Chief Justice shall declare the hearing closed. 2) The Court shall recess to consider judgment. 3) The deliberations of the court shall take place in private and remain secret. Article 27 1) All questions shall be decided by a majority of the judges present. 2) In the event of an equality of votes, the Chief Justice shall have a casting vote. Article 28 1) The judgment shall state the reason(s) on which it is based. 2) The judgment shall contain the name of the members which have taken part in the decision. Article 29 If the judgment does not represent, in whole or in part, the unanimous opinion of the members, the minority shall be entitled to deliver a separate opinion. Article 30 The judgment shall be signed by the President and by the Registrar. It shall be read in open court, due notice being given to the Agents. Article 31

8 The decision of the Court has binding force only between the parties and with respect to that particular case. Article 32 The judgment of the Court is final and without appeal. In the event of a dispute as to the meaning or scope of the judgment, the Court shall explain it upon request of any party.

9 Nature of International Law International law as applied in the International Court of Justice, follows the Grotian school. It flows from several sources and evidences. This is where one can find the law when developing a case. 1. Treaty. Treaties are now generally accepted as a major source of International Law. This is the second of the most important sources of international law. Treaties codify existing customary international law as well as other practices that exist between nations, which includes "progressive development". The three most important types of treaties are: a. Bi-lateral. These are treaties that exist between two nations. They are non-binding on any other nations except for the signatories. Although they are only binding on the two signatory nations, they may be cited by other nations as proof of a new emerging custom if there are several bilateral agreements between different nations concerning the same topic. It is also important to note that treaties between two nations may take precedent over existing international custom for the signatories, although two nations cannot terminate international custom in this manner. b. General. These are treaties signed by many nations but not all. These generally present a greater problem in that only certain nations sign a treaty expressing the will of a majority of nations. Does this mean that that principle is generally accepted law? One must find out how many nations have signed and if they have the interest and influence which is needed to give the treaty wider meaning. c. Universal. These are treaties signed by virtually all nations. The best example in the United Nations Charter is a multilateral treaty. Other examples of recent "universal treaties" signed by a substantial number of nations relates to the law of the sea, diplomatic and consular privileges and immunities, nuclear testing, and outer space. No treaty has been signed by all nations but these can claim a large majority. They are still subject to interpretation as to their meaning and effect and as to whether they affect non-signatories. There are two other very important treaty concepts. These are Pacta Sunt Servanda and Clausula Rebus Sic Stantibus. With Pacta Sunt Servanda, treaties are meant to serve both/all parties. They are not to be broken unilaterally and are only to be dissolved with the consent of both parties. With Clausula Rebus Sic Stantibus, treaties are valid only as long as the conditions under which they were signed remain the same. As essential conditions change, the treaties may be voided or modified. This type of procedure is used by underdeveloped nations of the world when they feel that unfair treaties have been imposed on them. 2. Custom. This has been the largest source of international law, but treaty law is becoming increasingly important. Simply, custom is a practice that has grown up between a substantial number of nations over an extended period of time. After this practice has attained the concept "accepted usage", it becomes binding law among nations. This is important because an established custom may eventually be codified in treaty law. The three-mile maritime limit is an example of customary law. 3. Publicists. These are writers and scholars of international reputation who comment on international law. If there is not a treaty available, one may use the material that has been written on a particular subject to make a point. William Bishop, Louis Henkin, Wolfgang Friedmann, and textbook writers are in this category. But some of the most influential are those who have written basic treaties on international law such as Hugo Grotius, Hackworth, and Whiteman. 4. Judicial Decisions. These are the precedents that are found in court cases before national and international tribunals such as the International Court of Justice. Although the rule that a case can be used as

10 a precedent (a common law rule) does not apply in international law, cases reflect interpretation of law and are extremely valuable in developing judicial systems. 5. UN General Assembly Resolutions. These are non-binding principles of international law that reflect the will of the majority of nations. While they are non-binding in nature, they are important in that they reflect opinions of both older nations as well as of new nations that are hoping to get their views incorporated in to the vast body of current international law. If many nations agree on a resolution it becomes quasiinternational law. This rule is especially true if the same principle appears in numerous resolutions. 6. State Practice and Policies. Remember that all law is the sum result of the political process in the national system, political debates, and in the efforts of pressure groups, all of which culminate in legislation. The international system differs, in that law emerges as the result of agreements among states regarding rules. This is often found in statements made by foreign offices and governments. Thus, one must look for state procedure, practice, and policy that may not be reflected in treaties, judicial decisions, or customary rule. Policy is especially relevant in ascertaining the views of underdeveloped nations toward traditional international law, while state practice applies to all members of the international community.