Jessup

The case concerning

the Egart and the Ibra

NICARAGUA V. USA

Furthermore the Court is bound to emphasize that the non-participation of a party in the proceedings at any stage of the case cannot, in any circumstances, affect the validity of its judgment. Nor does such validity depend upon the acceptance of that judgment by one party. The fact that a State purports to "reserve its rights" in respect of a future decision of the Court, after the Court has determined that it has jurisdiction, is clearly of no effect on the validity of that decision. Under Article 36, paragraph 6, of its Statute, the Court has jurisdiction to determine any dispute as to its own jurisdiction, and its judgment on that matter, as on the merits, is final and binding on the parties under Articles 59 and 60 of the Statute (cf. Corfu Channel, Judgment of 15 December 1949, I.C.J. Reports 1949, p. 248).

A State which decides not to appear must accept the consequences of its decision, the first of which is that the case will continue without its participation ; the State which has chosen not to appear remains a party to the case, and is bound by the eventual judgment in accordance with Article 59 of the Statute. There is however no question of a judgment automatically in favour of the party appearing, since the Court is required, as mentioned above, to "satisfy itself" that that party's claim is well founded in fact and law. 29. The use of the term "satisfy itself" in the English text of the Statute (and in the French text the term "s'assurer") implies that the Court must attain the same degree of certainty as in any other case that the claim of the party appearing is sound in law, and, so far as the nature of the case permits, that the facts on which it is based are supported by convincing evidence. For the purpose of deciding whether the claim is well founded in law, the principle jura novit curia signifies that the Court is not solely dependent on the argument of the parties before it with respect to the applicable law (cf. "Lotus", P.C.I.J., Series A, No. 10, p. 31), so that the absence of one party has less impact.

ANDUCHENCA

Sent a note verbale to the Court, saying the dispute concerning the egart was not arbitrable, because it does not fall within the scope of article 7 of the FCN treaty (...) it was intended to enable commercial vessels to navigate freely between the two states on the high seas. It has nothing to do with Rukarukan government vessels in Anduchenca's territorial waters (...)

Consequently, the tribunal is not now nor could it ever be seized of this dispute withouth our express consent.. We will not participate.

It was before the Court rendered its decision on the jurisdiction.

ICJ Statute

Article 36

1. The jurisdiction of the Court comprises all cases which the parties refer to it and all matters specially provided for in the Charter of the United Nations or in treaties and conventions in force.

2. The states parties to the present Statute may at any time declare that they recognize as compulsory ipso facto and without special agreement, in relation to any other state accepting the same obligation, the jurisdiction of the Court in all legal disputes concerning:

• the interpretation of a treaty;
• any question of international law;
• the existence of any fact which, if established, would constitute a breach of an international obligation;
• the nature or extent of the reparation to be made for the breach of an international obligation.

ICJ Statute

Article 53

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 favour of its claim.

2. The Court must, before doing so, satisfy itself, not only that it has jurisdiction in accordance with Articles 36 and 37, but also that the claim is well founded in fact and law.

• Expiration of the treaty prior to the procedure
• The 'arbitral' decision was given by King Alfonso as sole arbitrator in flagrant breach of the provisions of the treaty. Mr. Orvindari 500+ hours
• Excess of jurisdiction. Incapable of execution because of its obscurities and contradictions. Not a binding arbitral award.
• Nicaragua fully participated in the arbitral proceedings. No ground to rely on the contention for the nullity of the award.

• International arbitral award - Application based on Article 36, paragraph 2, of the Statute, requesting: Court to declare inexistence or nullity of the award - Recognition by both Parties that proceedings not by way of appeal - Jurisdiction not disputed by Respondent.
• a dispute concerning the existence and validity of the Arbitral Award delivered on 31 July 1989 by an arbitration tribunal established pursuant to an Arbitration Agreement between the two States dated 12 March 1985. In order to found the jurisdiction of the Court the Application relied on the declarations made by the two Parties accepting the jurisdiction of the Court as provided for in Article 36, para- graph 2, of the Statute: of the Court.
• In this respect the Court would emphasize that, as the Parties were both agreed, these proceedings allege the inexistence and nullity of the Award rendered by the Arbitration Tribunal and are not by way of appeal from it or applicatiion for revision of it.
• President Barberis's declaration con- tradicted and invalidated his vote, thus leaving the Award unsupported by a real majority

Affirming that disputes concerning treaties, like other international disputes, should be settled by peaceful means and in conformity with the principles of justice and international law

Non-interference in the domestic affairs of States, of the prohibition of the threat or use of force and of universal respect for, and observance of, human rights and fundamental freedoms for all..

Article 4. NON-RETROACTIVITY OF THE PRESENT CONVENTION

Without prejudice to the application of any rules set forth in the present Convention to which treaties would be subject under international law independently of the Convention, the Convention applies only to treaties which are concluded by States after the entry into force of the present Convention with regard to such States. THE FCN WAS CONCLUDED ON 12 MARCH 1947

"Those rules of the VCLT which reflect customary international law apply (albeit as customary law) to treaties concluded before the entry into force of the VCLT, or concluded afterwards but before the VCLT entered into force for parties to those treaties."

http://opil.ouplaw.com/view/10.1093/law:epil/9780199231690/law-9780199231690-e1498#

Conclusions

http://scholarship.law.cornell.edu/cgi/viewcontent.cgi?article=1540&context=cilj

Article 26. "PACTA SUNT SERVANDA" Every treaty in force is binding upon the parties to it and must be performed by them in good faith.

Article 29. TERRITORIAL SCOPE OF TREATIES Unless a different intention appears from the treaty or is otherwise established, a treaty is binding upon each party in respect of its entire territory.

Article 30. APPLICATION OF SUCCESSIVE TREATIES RELATING TO THE SAME SUBJECT-MATTER

3. When all the parties to the earlier treaty are parties also to the later treaty but the earlier treaty is not terminated or suspended in operation under article 59, the earlier treaty applies only to the extent that its provisions are compatible with those of the later treaty.

4. When the parties to the later treaty do not include all the parties to the earlier one: (a) As between States parties to both treaties the same rule applies as in paragraph 3; (o) As between a State party to both treaties and a State party to only one of the treaties, the treaty to which both States are parties governs their mutual rights and obligations.

Article 31, GENERAL RULE OF INTERPRETATION

1. A treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose.

2. The context for the purpose of the interpretation of a treaty shall comprise, in addition to the text, including its preamble and annexes:

(a) Any agreement relating to the treaty which was made between all the parties in connexion with the conclusion of the treaty;

(b) Any instrument which was made by one or more parties in connexion with the conclusion of the treaty and accepted by the other parties as an instrument related to the treaty.

3. There shall be taken into account, together with the context:

(a) Any subsequent agreement between the parties regarding the interpretation of the treaty or the application of its provisions;

(b) Any subsequent practice in the application of the treaty which establishes the agreement of the parties regarding its interpretation;

(c) Any relevant rules of international law applicable in the relations between the parties.

4. A special meaning shall be given to a term if it is established that the parties so intended.

Article 43. OBLIGATIONS IMPOSED BY INTERNATIONAL LAW INDEPENDENTLY OF A TREATY

The invalidity, termination or denunciation of a treaty, the withdrawal of a party from it, or the suspension of its operation, as a result of the application of the present Convention or of the provisions of the treaty, shall not in any way impair the duty of any State to fulfil any obligation embodied in the treaty to which it would be subject under international law independently of the treaty.

SECTION 3. INNOCENT PASSAGE IN THE TERRITORIAL SEA

SUBSECTION A. RULES APPLICABLE TO ALL SHIPS

Article17 Right of innocent passage

Subject to this Convention, ships of all States, whether coastal or land-locked, enjoy the right of innocent passage through the territorial sea.

Article18 Meaning of passage

1. Passage means navigation through the territorial sea for the purpose of:

(a) traversing that sea without entering internal waters or calling at a roadstead or port facility outside internal waters; or

(b) proceeding to or from internal waters or a call at such roadstead or port facility.

2. Passage shall be continuous and expeditious. However, passage includes stopping and anchoring, but only in so far as the same are incidental to ordinary navigation or are rendered necessary by force majeure or distress or for the purpose of rendering assistance to persons, ships or aircraft in danger or distress.

Article19 Meaning of innocent passage

1. Passage is innocent so long as it is not prejudicial to the peace, good order or security of the coastal State. Such passage shall take place in conformity with this Convention and with other rules of international law.

2. Passage of a foreign ship shall be considered to be prejudicial to the peace, good order or security of the coastal State if in the territorial sea it engages in any of the following activities:

(a) any threat or use of force against the sovereignty, territorial integrity or political independence of the coastal State, or in any other manner in violation of the principles of international law embodied in the Charter of the United Nations;

(b) any exercise or practice with weapons of any kind;

(c) any act aimed at collecting information to the prejudice of the defence or security of the coastal State;

(d) any act of propaganda aimed at affecting the defence or security of the coastal State;

(e) the launching, landing or taking on board of any aircraft;

(f) the launching, landing or taking on board of any military device;

(g) the loading or unloading of any commodity, currency or person contrary to the customs, fiscal, immigration or sanitary laws and regulations of the coastal State;

(h) any act of wilful and serious pollution contrary to this Convention;

(i) any fishing activities;

(j) the carrying out of research or survey activities;

(k) any act aimed at interfering with any systems of communication or any other facilities or installations of the coastal State;

(l) any other activity not having a direct bearing on passage.

Article20 Submarines and other underwater vehicles

In the territorial sea, submarines and other underwater vehicles are required to navigate on the surface and to show their flag.

Article25 Rights of protection of the coastal State

1. The coastal State may take the necessary steps in its territorial sea to prevent passage which is not innocent.

2. In the case of ships proceeding to internal waters or a call at a port facility outside internal waters, the coastal State also has the right to take the necessary steps to prevent any breach of the conditions to which admission of those ships to internal waters or such a call is subject.

3. The coastal State may, without discrimination in form or in fact among foreign ships, suspend temporarily in specified areas of its territorial sea the innocent passage of foreign ships if such suspension is essential for the protection of its security, including weapons exercises. Such suspension shall take effect only after having been duly published.

SOUTH CHINA SEA

China’s Capture of U.S. Underwater Drone Violates Law of the Sea

The sovereign immune status of military UUVs affords them complete immunity from the jurisdiction of any state except the flag state in accordance with articles 32, 95-96 and 26 of the United Nations Convention on the Law of the Sea (UNCLOS)

https://www.lawfareblog.com/chinas-capture-us-underwater-drone-violates-law-sea

"Article 14, para.Article 14, para. 6 of the 1958 Geneva Convention refers only to "submarines," whereas the LOS Convention adds "and other underwater vehicles," no doubt in response to technological and scientific developments during the last two decades. "

http://digitalcommons.law.yale.edu/cgi/viewcontent.cgi?article=1267&context=yjil

Still, submarines have a duty to comply with coastal state law. But if they fail to do so, what recourse does the coastal

state have?

http://abcnews.go.com/Blotter/underwater-drone-tech-target-espionage-military-spooks/story?id=14826316

http://www.mpil.de/files/pdf1/mpunyb_roach_6.pdf

http://www.cistec.or.jp/jaist/english/activities/8th/02_sasaki.pdf

ICJ Statute: When a state does not defend its case

Vienna Convention: Application of the FCN as material law

Intl. Tribunal for the Law of the Sea: Innocent Passage

UNCLOS

No-show

Espionage

text here