What is the legal force of resolutions of the UN General Assembly and the UN Security Council? How does the ICJ apply these documents?

Article 60

The judgment is final and without appeal. In the event of dispute as to the meaning or scope of the judgment, the Court shall construe it upon the request of any party.

Article 61

1. An application for revision of a judgment may be made only when it is based upon the discovery of some fact of such a nature as to be a decisive factor, which fact was, when the judgment was given, unknown to the Court and also to the party claiming revision, always provided that such ignorance was not due to negligence.

2. The proceedings for revision shall be opened by a judgment of the Court expressly recording the existence of the new fact, recognizing that it has such a character as to lay the case open to revision, and declaring the application admissible on this ground.

3. The Court may require previous compliance with the terms of the judgment before it admits proceedings in revision.

4. The application for revision must be made at latest within six months of the discovery of the new fact.

5. No application for revision may be made after the lapse of ten years from the date of the judgment.

 

What is the legal force of resolutions of the UN General Assembly and the UN Security Council? How does the ICJ apply these documents?

8. Are findings of fact and law made by other international tribunals (ICTY, ICC, ECHR etc.) binding upon the ICJ?

9. What credence should the ICJ assign to findings of fact and law made by a national court? In which circumstances and to what extent should the ICJ defer to national courts?

10. What is the standard of proof required by international law (e.g. beyond reasonable doubt, prima facie, balance of probabilities)? In what circumstances recourse to circumstantial evidence is permitted?

 

Even if the standard of proof is identified in a particular judgment, the decision of each single judge to be convinced (or not to be convinced) by the evidence embraces a subjective element. This decision is influenced by past experience and, probably, the professional or other background of each judge. Therefore, identifying the standard of proof does not necessarily render the judgment less subjective. However, identifying the standard of proof and explaining why a particular conclusion was reached provides for more transparency and forces the adjudicating body to deal with this point more intensively in its deliberations.   Two standards of proof are referred to in international adjudication most frequently, namely, ‘proof beyond reasonable doubt’ and ‘preponderance of evidence’. The parties to a dispute may agree on a particular standard to be applied.   Proof beyond reasonable doubt requires a high degree of cogency. It means that the evidence weighs heavily in one direction. The ECtHR stated that such proof may follow from the ‘coexistence of sufficiently strong, clear and concordant influences or of similar unrebutted presumptions of fact’ (Republic of Ireland v United Kingdom Series A No 25 para. 161). Preponderance of evidence means that the evidence adduced by one party on the basis of reasonable probability weighs heavier than the evidence produced by the other side. The difference between these two standards may, in fact, be a gradual one.

 

 

"Reasonable doubt is not mere possible doubt.

"It is that state of the case which, after the entire comparison and consideration of all the evidence leaves the minds of the jurors in that condition that they canot say they feel an abiding conviction to a moral certainty of the truth of the charge."

 

 

11. What is the hierarchy of the sources of international law provided for in Article 38(1)?

 

12. If a State has conflicting obligations under two treaties (or under a treaty and customary international law), which obligation will prevail?

13. Can a provision of a treaty become customary international law? If so, what is required for a norm of a treaty to become customary?

14. Consent of how many States is required for a norm to reach the level of customary international law?

 

However, no clear period of time, after which the practice can be custom. Most likely, the custom can occur in a small time period with frequent and uniform application.

Evidence of the existence of customary international agreements may be, diplomatic correspondence, policy statements, press releases, opinions of official legal advisers, UN General Assembly Resolution

15. What are obligations erga omnes? Erga omnes and jus cogens.

 

In Barcelona Traction, Light and Power Company, at 33, the International Court of Justiceheld:

"When a State admits into its territory foreign investments or foreign nationals, whether natural or juristic persons, it is bound to extend to them the protection of the law and assumes obligations concerning the treatment to be afforded them. These obligations, however, are neither absolute nor unqualified. In particular, an essential distinction should be drawn between the obligations of a State towards the international community as a whole, and those arising vis-à-vis another State in the field of diplomatic protection. By their very nature the former are the concern of al1 States. In view of the importance of the rights involved, al1 States can be held to have a legal interest in their protection; they are obligations erga omnes."

 

"Jus cogens ... is an international law principle which is accepted by the international community of states as a whole as a norm from which no derogation is permitted."

 

16. What are general principles of law as enunciated in Article 38(1)(c)?

 

General principle of law or general legal principle refers to a principle that is recognized in all kinds of legal relations, regardless of the legal system to which it belongs. It can also be a principle that is widely recognized by people whose legal order has attained a certain level of sophistication. In International law, it refers to a principle that gives rise to international legal obligations. The adjective ‘general’ indicates that they are principles which are applied generally in all cases of the same kind which arise in international law. For example, the principle of nonintervention.

 

 

17. Can a third State be bound by a provision of a treaty?

Vienna Convention on the Law of Treaties 1969:

Article 34:
A treaty does not create either obligations or rights for a third State without its consent.

Article 35:
An obligation arises for a third State from a provision of a treaty if the parties to the treaty intend the provision to be the means of establishing the obligation and the third State expressly accepts that obligation in writing.

Article 36:
1. A right arises for a third State from a provision of a treaty if the parties to the treaty intend the provision to accord that right either to the third State, or to a group of States to which it belongs, or to all States, and the third State assents thereto. Its assent shall be presumed so long as the contrary is not indicated, unless the treaty otherwise provides.

2. A State exercising a right in accordance with paragraph 1 shall comply with the conditions for
its exercise provided for in the treaty or established in conformity with the treaty.

Article 37:
1. When an obligation has arisen for a third State in conformity with article 35, the obligation may
be revoked or modified only with the consent of the parties to the treaty and of the third State, unless it is established that they had otherwise agreed.

2. When a right has arisen for a third State in conformity with article 36, the right may not be
revoked or modified by the parties if it is established that the right was intended not to be revocable or
subject to modification without the consent of the third State.

 

18. What is the relationship between a treaty and jus cogens norms?

 

Article 53 of the Convention on the Law of Treaties: A treaty will be void if, at the same time of its conclusion, it conflicts with a peremptory norm of general international law (jus cogens).

A peremptory norm of general international law (jus cogens) is a norm accepted and recognized by the international community of States as a whole as a norm from which no derogation is permitted and which can be modified only by a subsequent norm of general international law having the same character.

Article 64 of the Convention on the Law of Treaties: If a new peremptory norm of general international law emerges, any existing treaty which is in conflict with that norm becomes void and terminates.

 

19. Principles of estoppel and acquiescence

Estoppel Definition:

A rule of law that when person A, by act or words, gives person B reason to believe a certain set of facts upon which person B takes action, person A cannot later, to his (or her) benefit, deny those facts or say that his (or her) earlier act was improper.

 

In law, acquiescence occurs when a person knowingly stands by without raising any objection to the infringement of their rights, while someone else unknowingly and without malice aforethought makes a claim on their rights.

 

 

20. Do all norms enshrined in the Universal Declaration of Human Rights represent customary law?

 

In particular, the principles of the UDHR are considered to be international customary law and do not require signature or ratification by the state to be recognized as a legal standard.

The UDHR is a keystone document, it has been translated into over 3000 languages and dialects

Although the UDHR was a non-binding resolution, it is now considered by some to have acquired the force of international customary lawwhich may be invoked in appropriate circumstances by national and other judiciaries.^[27] The UDHR urges member nations to promote a number of human, civil, economic and social rights, asserting these rights as part of the "foundation of freedom, justice and peace in the world."