Решавање спорова и

надлежност МСП
Комбиновани случајеви
 Како решавати питања у вези са
надлежношћу МСП да решава спорове
1. Право које треба применити

2. Питања која се тичу надлежности

a. Персонална надлежност
(Чл. 34 Статута МСП, Чл. 35 Статута МСП, Чл. 93 Повеље УН)
Питање се поставља од стране МСП ex officio
b. Стварна надлежност
(Чл. 36 Статута МСП)
Дефиниција правног спора који се тиче међународног права
Питање се поставља од стране МСП ex officio
c. Консенсуална надлежност
Питање не покреће МСП ex officio – морају га покренути странке у поступку
(Чл. 36 Статута МСП)
1.Посебан споразум
2.Факултативна клаузула
3.Компромисорна клаузула
4.Forum prorogatum
3. Питања која се тичу прихватљивости
-Спор је постао “moot”
-Спор је чисто хипотетичке природе
-Не постоји интерес државе у спору у вези са предметом спора
-Спор се тиче правног интереса треће државе
 Како решавати питања у вези са
саветодавном надлежношћу МСП
1. Право које треба применити
2. Питања која се тичу надлежности
a. Персонална надлежност
Чл. 65 Статута МСП, Чл. 96 Повеље УН
Питање се покреће од стране МСП ex officio
b. Стварна надлежност
‘било које правно питање’/’правна питања која спадају у њихову
надлежност’
Чл. 96 Повеље УН
Питање се покреће од стране МСП ex officio
 Персонална надлежност МСП
• Article 34 ICJ Statute
– 1. Only states may be parties in cases before the Court.
• Article 35 ICJ Statute
– 1. The Court shall be open to the states parties to the
present Statute.
• Article 93 UN Charter
– All Members of the United Nations are ipso facto parties
to the Statute of the International Court of Justice.
– A state which is not a Member of the United Nations may
become a party to the Statute of the International Court of
Justice on conditions to be determined in each case by the
General Assembly upon the recommendation of the
Security Council.
 Стварна надлежност МСП
• Article 36 ICJ Statute
– 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.
 Case 5.3
• Article 36 ICJ Statute
– 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.
– 3. The declarations referred to above may be made unconditionally or on condition of
reciprocity on the part of several or certain states, or for a certain time.
• Article 19 Vienna Convention on the Law of Treaties
– A State may, when signing, ratifying, accepting, approving or acceding to a treaty,
formulate a reservation unless:
• (a) The reservation is prohibited by the treaty;
• (b) The treaty provides that only specified reservations, which do not include the reservation in
question, may be made; or
• (c) In cases not falling under sub-paragraphs (a) and (b), the reservation is incompatible with
the object and purpose of the treaty.
 Case 5.5
• Article 19 Vienna Convention on the Law of Treaties
– A State may, when signing, ratifying, accepting, approving or
acceding to a treaty, formulate a reservation unless:
• (a) The reservation is prohibited by the treaty;
• (b) The treaty provides that only specified reservations, which do not
include the reservation in question, may be made; or
• (c) In cases not falling under sub-paragraphs (a) and (b), the
reservation is incompatible with the object and purpose of the treaty.
• Article 36 ICJ Statute
– 6. In the event of a dispute as to whether the Court has
jurisdiction, the matter shall be settled by the decision of the
Court.
 Case 5.9
• Article 59 ICJ Statute
• The decision of the Court has no binding force except between
the parties and in respect of that particular case.

• Article 62
– l. Should a state consider that it has an interest of a
legal nature which may be affected by the decision in
the case, it may submit a request to the Court to be
permitted to intervene.
– 2 It shall be for the Court to decide upon this request.
 Case 5.10
• Article 65 ICJ Statute
– 1. The Court may give an advisory opinion on any legal question at the request
of whatever body may be authorized by or in accordance with the Charter of
the United Nations to make such a request.
– 2. Questions upon which the advisory opinion of the Court is asked shall be
laid before the Court by means of a written request containing an exact
statement of the question upon which an opinion is required, and
accompanied by all documents likely to throw light upon the question.
• Article 96 UN Charter
a. The General Assembly or the Security Council may request the
International Court of Justice to give an advisory opinion on any legal
question.
b. Other organs of the United Nations and specialized agencies,
which may at any time be so authorized by the General Assembly, may
also request advisory opinions of the Court on legal questions arising
within the scope of their activities.
 Случај – међународно еколошко
право
• Article 3 Kyoto Protocol
– 1. The Parties included in Annex I shall, individually or
jointly, ensure that their aggregate anthropogenic
carbon dioxide equivalent emissions of the
greenhouse gases listed in Annex A do not exceed
their assigned amounts, calculated pursuant to their
quantified emission limitation and reduction
commitments inscribed in Annex B and in accordance
with the provisions of this Article, with a view to
reducing their overall emissions of such gases by at
least 5 per cent below 1990 levels in the commitment
period 2008 to 2012.
 Случај – међународно еколошко
право
• Правила о одговорности државе за противправни акт
• Члан 42 (Позивање на одговорност од стране оштећене државе)
– Оштећена држава је овлашћена да позове на одговорност државу
штетника уколико је повређена обавеза постојала у односу на:
• (a) повређену државу индивидуално; или
• (b) групу држава којој припада и та држава, или међународну заједницу као
целину, а та обавеза:
– (i) посебно погађа дату државу; или
– (ii) је такве природе да суштински мења позицију свих држава у односу на које постоји у
погледу даљег извршења обавезе

• Члан 48 (Позивање на одговорност од стране државе која није

повређена држава)
– 1) повређена обавеза се дугује групи држава којој припада та држава и
установљена је у циљу заштите колективног интереса групе
– 2) повређена обавеза се дугује читавој међународној заједници
 Case 7.2
• Art. 4 VCLT (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.
 Case 7.2
• Article 2 (1.d) VCLT (USE OF TERMS)
– 1. For the purposes of the present Convention:
• (d) "Reservation" means a unilateral statement,
however phrased or named, made by a State, when
signing, ratifying, accepting, approving or acceding to a
treaty, whereby it purports to exclude or to modify the
legal effect of certain provisions of the treaty in their
application to that State;
 Case 7.2
• Article 19 Vienna Convention on the Law of
Treaties
– A State may, when signing, ratifying, accepting,
approving or acceding to a treaty, formulate a
reservation unless:
• (a) The reservation is prohibited by the treaty;
• (b) The treaty provides that only specified reservations,
which do not include the reservation in question, may be
made; or
• (c) In cases not falling under sub-paragraphs (a) and (b),
the reservation is incompatible with the object and
purpose of the treaty.
 Case 7.2
• Article 20 VCLT (ACCEPTANCE OF AND
OBJECTION TO RESERVATIONS)
– 5. For the purposes of paragraphs 2 and 4 and
unless the treaty otherwise provides, a
reservation is considered to have been accepted
by a State if it shall have raised no objection to the
reservation by the end of a period of twelve
months after it was notified of the reservation or
by the date on which it expressed its consent to
be bound by the treaty, whichever is later.
 Case 7.2
• Article 20 VCLT (ACCEPTANCE OF AND
OBJECTION TO RESERVATIONS)
– 4. In cases not falling under the preceding
paragraphs and unless the treaty otherwise
provides:
• (b) An objection by another contracting State to a
reservation does not preclude the entry into force of
the treaty as between the objecting and reserving
States unless a contrary intention is definitely
expressed by the objecting State;
 Case 7.2
• Article 20 VCLT (ACCEPTANCE OF AND
OBJECTION TO RESERVATIONS)
– 4. In cases not falling under the preceding
paragraphs and unless the treaty otherwise
provides:
• (c) An act expressing a State's consent to be bound by
the treaty and containing a reservation is effective as
soon as at least one other contracting State has
accepted the reservation.
 Case 7.2
• Article 21 VCLT (LEGAL EFFECTS OF
RESERVATIONS AND OF OBJECTIONS TO
RESERVATIONS)
– 1. A reservation established with regard to another
party in accordance with articles 19, 20 and 23:
• (a) Modifies for the reserving State in its relations with that
other party the provisions of the treaty to which the
reservation relates to the extent of the reservation; and
• (b) Modifies those provisions to the same extent for that
other party in its relations with the reserving State.
 Case 7.2
• Article 21 VCLT (LEGAL EFFECTS OF
RESERVATIONS AND OF OBJECTIONS TO
RESERVATIONS)
– 3. When a State objecting to a reservation has not
opposed the entry into force of the treaty
between itself and the reserving State, the
provisions to which the reservation relates do not
apply as between the two States to the extent of
the reservation.
 Case 7.2
• Article 21 VCLT (LEGAL EFFECTS OF
RESERVATIONS AND OF OBJECTIONS TO
RESERVATIONS)
– 2. The reservation does not modify the provisions
of the treaty for the other parties to the treaty
inter se.
 Case 7.2
• Article 48 VCLT (ERROR)
– 1. A State may invoke an error in a treaty as
invalidating its consent to be bound by the treaty if
the error relates to a fact or situation which was
assumed by that State to exist at the time when the
treaty was concluded and formed an essential basis of
its consent to be bound by the treaty.
– 2. Paragraph 1 shall not apply if the State in question
contributed by its own conduct to the error or if the
circumstances were such as to put that State on
notice of a possible error.
 Case 7.2
• Article 45 VCLT (LOSS OF A RIGHT TO INVOKE A
GROUND FOR INVALIDATING, TERMINATING,
WITHDRAWING FROM OR SUSPENDING THE
OPERATION OF A TREATY)
– A State may no longer invoke a ground for invalidating,
terminating, withdrawing from or suspending the
operation of a treaty under articles 46 to 50 or articles 60
and 62 if, after becoming aware of the facts:
• (a) It shall have expressly agreed that the treaty is valid or remains
in force or continues in operation, as the case may be; or
• (b) It must by reason of its conduct be considered as having
acquiesced in the validity of the treaty or in its maintenance in
force or in operation, as the case may be.
 Case 7.2
• 1970 UN Declaration on Principles of Friendly
Relations between States
• Principle 1: States shall refrain in their international
relations from the threat or use of force against the
territorial integrity or political independence of any
State or in any other manner inconsistent with the
purposes of the United Nations
– 9) Every State has the duty to refrain from organizing,
instigating, assisting or participating in acts of civil strife or
terrorist acts in another State or acquiescing in organized
activities within its territory directed towards the
commission of such acts, when the acts referred to in the
present paragraph involve a threat or use of force.
 Case 7.2
• Principle 3: The duty not to intervene in matters
within the domestic jurisdiction of any State, in
accordance with the Charter.
• 2. No State shall organize, assist, foment, finance, incite or
tolerate subversive, terrorist or armed activities directed
towards the violent overthrow of the regime of another State,
or interfere in civil strife in another State.
• Principle 4: The duty of States to co-operate with
one another in accordance with the Charter.
– a. States shall co-operate with other States in the
maintenance of international peace and security;
 Case 7.2
• Art. 36 ICJ Statute
– 5. Declarations made under Article 36 of the
Statute of the Permanent Court of International
Justice and which are still in force shall be
deemed, as between the parties to the present
Statute, to be acceptances of the compulsory
jurisdiction of the International Court of Justice for
the period which they still have to run and in
accordance with their terms.
 Case 7.10
• Art. 4 VCLT (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.
 Case 7.10
• Article 84 VCLT (ENTRY INTO FORCE)
– 1. The present Convention shall enter into force on
the thirtieth day following the date of deposit of the
thirty-fifth instrument of ratification or accession.
– 2. For each State ratifying or acceding to the
Convention after the deposit of the thirty-fifth
instrument of ratification or accession, the
Convention shall enter into force on the thirtieth day
after deposit by such State of its instrument of
ratification or accession.
 Case 7.10
• Article 27 VCLT (INTERNAL LAW AND OBSERVANCE OF TREATIES)
– A party may not invoke the provisions of its internal law as
justification for its failure to perform a treaty. This rule is without
prejudice to article 46.

• Article 46 VCLT (PROVISIONS OF INTERNAL LAW REGARDING

COMPETENCE TO CONCLUDE TREATIES)
– 1. A State may not invoke the fact that its consent to be bound by a
treaty has been expressed in violation of a provision of its internal law
regarding competence to conclude treaties as invalidating its consent
unless that violation was manifest and concerned a rule of its internal
law of fundamental importance.
– 2. A violation is manifest if it would be objectively evident to any State
conducting itself in the matter in accordance with normal practice and
in good faith.
 Case 7.10
• Article 49 VCLT (FRAUD)
– If a State has been induced to conclude a treaty by
the fraudulent conduct of another negotiating
State, the State may invoke the fraud as
invalidating its consent to be bound by the treaty.
 Case 7.10
• Article 45 VCLT (LOSS OF A RIGHT TO INVOKE A
GROUND FOR INVALIDATING, TERMINATING,
WITHDRAWING FROM OR SUSPENDING THE
OPERATION OF A TREATY)
– A State may no longer invoke a ground for invalidating,
terminating, withdrawing from or suspending the
operation of a treaty under articles 46 to 50 or articles 60
and 62 if, after becoming aware of the facts:
• (a) It shall have expressly agreed that the treaty is valid or remains
in force or continues in operation, as the case may be; or
• (b) It must by reason of its conduct be considered as having
acquiesced in the validity of the treaty or in its maintenance in
force or in operation, as the case may be.
 Case 7.10
• Article 80 VCLT (REGISTRATION AND
PUBLICATION OF TREATIES)
– 1. Treaties shall, after their entry into force, be
transmitted to the Secretariat of the United
Nations for registration or filing and recording, as
the case may be, and for publication.
 Case 7.10
• Article 102 UN Charter
– Every treaty and every international agreement
entered into by any Member of the United Nations
after the present Charter comes into force shall as
soon as possible be registered with the Secretariat
and published by it.
– No party to any such treaty or international
agreement which has not been registered in
accordance with the provisions of paragraph 1 of this
Article may invoke that treaty or agreement before
any organ of the United Nations.
 Case 7.10
• Article 42 VCLT (VALIDITY AND CONTINUANCE
IN FORCE OF TREATIES)
– 1. The validity of a treaty or of the consent of a State
to be bound by a treaty may be impeached only
through the application of the present Convention.
– 2. The termination of a treaty, its denunciation or the
withdrawal of a party, may take place only as a result
of the application of the provisions of the treaty or of
the present Convention. The same rule applies to
suspension of the operation of a treaty.
 Case 7.10
• Article24 ILC Articles on State Responsibility
– 1. The wrongfulness of an act of a State not in
conformity with an international obligation of that
State is precluded if the author of the act in question
has no other reasonable way, in a situation of
distress, of saving the author’s life or the lives of
other persons entrusted to the author’s care.
– 2. Paragraph 1 does not apply if:
• (a) the situation of distress is due, either alone or in
combination with other factors, to the conduct of the State
invoking it; or
• (b) the act in question is likely to create a comparable or
greater peril.