Private Law
Private Law
International Law II
(Public International Law)
Exam information: The exam will be 2 hours and be composed of 6 questions of which we
have to answer two.
Generally, when we apply law we take the secondary rules for granted, so we don’t care
how those rules are coming to existence. These statutes or secondary rules set out the
primary rules that we apply.
There is a striking contrast between the national legal orders and the international law
system.
In national legal orders we have:
• A hierarchical character of a national legal order with its gradations of authority
• The law is created by parliamentary legislation or judicial case-law
• A degree of certainty to the legal process because it is possible to tell when a
proposition has become law.
In IL we have:
• The lack of legislature, executive and structure of courts
• There is no single body able to create law internationally binding upon everyone
• There is no proper system/no hierarchy of courts with comprehensive and
compulsory jurisdiction to interpret and extend the law
! Therefore we are faced in IL with the problem of where the law is to be found and
how you can tell whether a particular proposition amounts to a legal rule. In IL the
rules are less clearly defined.
1
Semestre 6
This is very different form the national legal system which is vertical.
In a municipal (national, intern) legal system, arguments are often about whether a law
applies, is it in force? So it is not about the content of the law but about whether it applies
or not.
• Material sources comprise the actual content of the rule. Material sources is a place
where the formal rules are set out (for example in a treaty or a judgement of the
ICJ).
The Secondary rules (that try to determine what the primary rules are) of IL are
referred to as the formal sources of IL.
So when talking about material sources, we are not talking about the legal source
or the authority that the document originates from, we are simply referring to a
place somewhere where the terms of the rules are written down.
For example: Where do we find the definition of the state in IL? In the 1993
Montevideo convention on the Law (rights and obligations) of states which is seen
to express the material source of the rule. ! The only states a treaty binds are the
states which become party to it. There are not many states which are party to this
treaty (only Latin American states), but it still interests us because the provision we
refer to is seen as expressing a rule of customary IL.
Article 38 of the Statute of the International Court of Justice is widely recognized as the
most authoritative and complete statement as to the sources of IL.
Article 38 is not a formal source of law in itself. It’s a material source because firstly the
statute of the ICJ is annexed to the Charter of the United Nations which is a treaty, and as
a treaty it only binds the states that are parties to it. And because secondly, this article
doesn’t address itself to anyone except the ICJ. So article 38 is not formally binding but it
is fairly authoritative and the ICJ continues to apply it as no state seems to object.
The Permanent CIJ (PCIJ) was established after the First World War in 1921. The statute of
the permanent CIJ largely was the inspiration for the statute of the ICJ.
2
Semestre 6
The statute of the ICJ was adopted in 1945 right after the Second World War. Article 38 of
the ICJ was pretty much copy pasted out of the statute of the PCIJ (with only one little
addition which says that the ICJ applies existing IL).
Article 38.1 provides that the ICJ settles international disputes in accordance with IL and it
also gives the list of the sources of law which the ICJ should apply:
a) Treaties:
Legally speaking there is no distinction between a treaty and a convention. Treaties have a
lot of different titles such as conventions, charters or protocols.
Treaties are basically agreements between states and now between states and
international organizations. Treaties are legally binding as a result of the principle “pacta
sunt servanda”. A treaty in force is binding on the parties to it and must be performed by
them in good faith (article 26 of the VC). A party to a treaty cannot invoke provisions of its
municipal law as justification for failure to perform under the treaty.
Treaties are the most popular form of IL making. It’s both a formal (to those that are party
to it) and material source of law. The treaty text will tell you two things, what rules.. and
how it comes into force (for example how many parties need to be part of it).
Are treaties like legislation? Treaties can look like bilateral contracts. The contractual
analogy is a good description of some treaties, like bilateral treaties which are based on
reciprocity. But there are also a lot of other treaties out there, like law-making treaties
which are multilateral treaties. Increasingly IL law-making has taken place by the adoption
of multilateral treaties, to which potentially any state can become party to.
For example if you look at the 4 Geneva conventions of 1949 which establish the standards
of IL for humanitarian treatment of war. Every State in the world is a party to these
conventions.
! The first convention deals with the treatment of the sick and wounded from combats in
field.
! The second one deals with the sick and wounded of the armed forces at sea.
! The third one deals with prisoners of war during time of conflict.
! The fourth one deals with civilians and their protection during wartime.
Another example of a treaties which don’t look like a private law contract would be
Human Rights Conventions or the Vienna Convention on the law of treaties.
These multilateral and law-making treaties, which are often of a global scope, are in many
cases not based on reciprocity. They confer rights and obligations on the states but they
also often lay down rights and obligations to other legal persons.
Treaties can be seen as having a public rather than a private law character. The parties to
a treaty either gain rights or incur obligations that they wouldn’t otherwise have under IL.
So a state may change its rights and obligations under general International, but such
variation or derogation of course is only valid between the parties of the treaty.
Nowadays there is a hierarchy or class of IL rules. The rules of Jus Cogens are norms to
which no derogation is possible by the states. This is a fundamental principle of IL. There
are not many of these norms, examples are the prohibition genocide or slavery ! article
53 of the Vienna convention.
General treaties do not confer obligations on anyone except states that are parties to
them. A treaty does not create obligations to a third party without its consent.
However a treaty can refer rights to a third state if the third state does not refuse them.
For example a treaty between the UK and the US that gave the right to third countries to
use the Panama Canal.
This does also not prevent states/treaties from creating rights or obligations for other
international legal persons. For example if a state party has violated the rights of a human
3
Semestre 6
b) Customary IL
In any primitive society certain rules of behaviour emerge and prescribe what is permitted
and what is not. Such rules develop almost subconsciously within the group and are
maintained by the members of the group.
Customary law can be regarded as an authentic expression of the needs and values of a
community at any given time.
Customary law is what States do and it is based on the idea that States have done things in
a certain way because that’s the way things should be done.
At international level there is no global legislator, so consequently the idea to draw rules
from conduct is quite a good idea and convenient.
Traditionally it is necessary to show two elements for customary IL:
• The belief by a state that behaved a certain way, that it was under a legal
obligation to act. This is known as the opinio juris.
• The other element is general state practice, the existence of a wide spread
customary practice.
The idea of tacit agreement: states can opt out of norms of CIL. While a customary rule is
in the process of being made (crystallising) a state can opt out if they consistently object
during the period when it is crystallising. Custom is not about explicit consent but rather
about implicit consent.
There is some idea that you can object to a rule of customary law from the moment of the
beginning of its formation and the persistent objector is not bound by the rule.
There are a lot of problems with customary law. To find evidence for customary law, you
have to prove state practice and show the existence of a specific customary rule. This is
why treaties prefer to make explicit rules laid down in treaty texts.
The idea of GPL recognized by civilized nations as formal sources of IL, was first seen in
the statute of the PCIJ in 1921. Nowadays all nations, whether more or less civil, are
considered civilized for IL purposes.
The idea was that you can go look into national legal systems and if there are common
principles that appear in the different legal systems, then they can be introduced into IL.
You can find general rules by comparative law analysis but when you seek to apply it to
particular legal situations, it can lead to different results. That’s why nowadays GPL aren’t
very popular and we rarely have to rely on them.
4
Semestre 6
The article 59 of the statute of the ICJ says that the decisions of the court are only binding
on the parties in the very case in which the decisions are made. The court does not
consider itself bound by its own decisions!
Conclusion:
In practice, the most important sources of IL are treaties and customary law. There is no
hierarchy between these two sources of IL. Concerning the relationship between those two
sources, it is important to know that treaties can express customary law.
General principles are less relevant and judicial decisions and scholar writings are
subsidiary sources.
Treaties are the favourite form of contemporary IL making; it is the quickest and easiest
way to change IL (states can change IL by treaty amendment).
For a state to be bound by a treaty, two conditions need to be fulfilled. The rules of a
treaty are only binding on the states, which are party to the treaty. And the treaty needs
to be in force.
5
Semestre 6
What we see in national legal orders nowadays, is a move away from customary law and
towards legislation. But at the international level there is no global legislator, therefore IL
relies very heavily on customary IL.
The idea is that the process of customary IL and the creation of customary IL is a slow
process which is imperceptible on a day to day level.
Customary law is not a product of common will but we each act individually because we
consider it’s the best/the right thing to do. That’s how customary IL is created.
One approach to what custom is, has seen it as based on a form of tacit agreement
between the various participants in IL. Obviously, this allows to keep on considering that IL
is based on consent!
But it does not always work:
• If you think custom is a form of tacit agreement, then in the absence of consent
there wouldn’t be no obligation. But in reality there are often cases where states
are bound by customary IL which they have not consented to. An example for that
are the newly independent states (f.i. Kosovo or South Sudan).
Once a state has come into being, it is bound by IL and indirectly bound by
customary IL.
Nowadays this is not a major issue because over the last years there haven’t been
many new states.
• States become parties to a treaty through consent. They sometimes enter into
reservations on certain provisions of the treaty with the result that they are no
longer bound by these provisions.
The basic rule is that customary IL binds all states! States that are silent during the
formation of customary IL are bound by their silence (tacit acceptance). So seeing
custom as a form of tacit agreement would allow states to opt out of it.
➔ If a State refuses to be bound and objects to a customary rule since it’s
interception/early stages, then that rule does not apply to this State.
The opinion juris is the factor which turns the usage into a custom and makes it
part of the rules of IL.
A classic example of what you need to prove a customary rule of IL, was set out in the
North Sea continental shelf cases in 1969. These cases involved a dispute between
Germany, Denmark and the Netherlands regarding the "delimitation" of areas—rich in oil
and gas—of the continental shelf in the North Sea. The parties took the dispute to the ICJ
and the question was which would be the rule determining what such a continental shelf
might be?
The treaty regarding this matter was the Geneva Convention on the continental shelf of
1958 which contained a principle of equidistance. This principle however conferred a
relatively small amount of shelf to Germany.
Germany had signed but not ratified this convention and so it was not bound by its terms.
The question was whether the equidistance principle had been absorbed into
customary law and was accordingly binding upon Germany?
The court held that for a customary rule of IL to come into place: “Not only must the
acts concerned amount to a settled practice, but they must also be such, or be carried out
in such a way, as to be evidence of a belief that this practice is rendered obligatory by the
existence of a rule of law requiring it”.
The court decided that these conditions had not been not fulfilled and thus the use of the
equidistance method had not crystallised into customary law and was is not obligatory
for the delimitation of the areas in the North Sea related to the present proceedings.
How does a new rule of customary IL come into existence? You need to show these two
elements.
But there is a paradox here: How can a practice obtain the force of an obligatory rule of
law of CIL, if there has to be a belief that the practice is already legally obligatory?
It is quite common that states consistently do things without believing that it is legally
obligatory.
➔ Both the subjective element of opinion juris and the objective element of
state practice are essential pre-requisites to the formation of a customary
international norm.
State practice:
In the North Sea case the court talked about what degree of practice is necessary to fulfil
this criteria and said that state practice including that of states whose interests are
specially affected, should have been both extensive and virtually uniform and should have
occurred in a way as to show a general recognition that a rule of law or legal obligation is
involved.
The court didn’t say anything about duration. You might think there is probably a
requirement that the practice happens over a long period of time but that is not always
the case.
There is even a discussion about a sort of instant customary IL (if states act the same
manner in a very brief period of time).
There is no requirement for the practice of all states but it needs to be the practice of
especially affected/interested States. Following the court’s wording in the North Sea case,
the practice of specially affected states is given particular weight. In this case, only
coastal states were specially affected.
The court in the North Sea continental shelf case also said that the practice had to be
virtually uniform (in the same direction).
7
Semestre 6
The court’s approach was maintained in the Nicaragua vs USA case in 1980, where express
reference was made to the North Sea continental shelf case.
In this case, Nicaragua brought a suit against the US on the ground that the US was
responsible for illegal military activities in and against Nicaragua.
The US and Nicaragua accepted, what is called, compulsory jurisdiction of the ICJ, but the
US entered into a reservation, which barred the ICJ from determining this case on the
basis of customary law and general principles of IL. In other words, the US said that they
would only accept mandatory jurisdiction of the ICJ, if certain treaty provisions are not
used by the court when deciding a dispute.
So Nicaragua was allowed to bring its claims by saying that it was customary IL that the US
had breached. The problem was to show how such a rule existed.
The more states are parties to a treaty, the more difficult it is to prove that there is a
customary rule next to the treaty, because it is harder to prove that there is an opinion
juris.
As the UN charter was signed by almost every country, it was hard to show that the
practice in question (with which the US didn’t comply) had its source in customary IL and
not in the treaty.
But the court finally decided in favour of Nicaragua by saying that the US had breached its
obligations under customary international law not to use force against another State
and not to violate the sovereignty of another State.
An inconsistent state practice (such as demonstrated by the US in the Nicaragua case) does
not affect the formation of a customary principle, so long as the inconsistency reflects the
breach of the rule. (f.i. torture is prohibited under numerous treaties, but it is also
prohibited under CIL. This means that even if a state wasn’t party to such a treaty
prohibiting torture, it would still have to comply with the principle of prohibition of
torture, since CIL says so).
What counts as practice? Pretty much everything states do or say. It can be what the
executive does, what the legislative does or what the courts do (for example: the idea that
states are immune to another state’s courts ! States sometimes legislate on state
immunity / Sometimes it comes from the decisions of the State courts).
Opinio juris:
Why do states act in particular ways? The practice usually develops because of economic,
political or social demands and not because that practice is seen as legally required!
At the beginning the practice is more about necessity then legality. However once the
practice is accepted by other states, then a customary rule gradually crystallizes and it is
then that states start to belief that a given practice is obligatory under IL.
It is however difficult to pinpoint the particular moment when a customary rule is born.
Can CIL be unmade? Yes, violations of the law can lead to formulation of a new law. States
act deliberately to breach customary law in order to change it. States act knowing that it
is unlawful trying to create a new rule.
8
Semestre 6
In the Lotus case, the court held that only if the practice of abstention was based on both
states being conscious of such a duty or obligation to abstain, then it would be possible to
speak of international custom.
A static perspective:
Traditionally there has been an absence of a hierarchy of sources in IL. In most legal
systems, some rules are hierarchically superior to others.
If you look at article 38-1 you have 3 formal sources of IL (treaties, customary IL and
general principles). What that means is that treaty rules are not superior than customary
rules and vice versa.
Both treaty and custom could regulate any custom or matter. Treaties and custom can be
used for whatever the issue is.
Customary rules can be general (binding all states) or regional (binding only this region).
Treaties on the other hand only bind states that are parties to it.
1. The court, in the Nicaragua vs USA case, disagreed with the view of the US by saying
that even if principles of CIL are codified into treaties, the principles of CIL continue to
exist side by side with the treaty principles! For treaty parties, both customary and
treaty law apply and if for some reason the treaty stops to apply (as it was the case here),
the identical customary law provisions continue to apply between the treaty parties!
This approach was already set out in the North Sea continental Shelf case, where the
existence of the treaty rule didn’t prevent the customary rule of having a separate
existence.
2. What happens when treaty rules and customary rules conflict? In the case of
divergence between treaty law and CIL, the relation between the two sets of rules is
governed by three principles:
• A later rule repeals/prevails an earlier one (lex posteriori derogate priori).
• A later rule of general character doesn’t derogate from an earlier specific rule (lex
posteriori generalis non derogate legi speciali prori).
• A special rule prevails over general rules (lex specialis derogate legi generali).
➔ These rules do not only govern the relationship between treaties and customs
but also the relationship between different treaties!!
9
Semestre 6
In practice, in most cases where there is a conflict between a treaty and a customary rule,
the treaty rule prevails because of two reasons:
• Treaties are usually more recent than customary law ;
• Treaties are most of the time more specific than customary law.
➔ Treaties can both reflect customary IL and help to create customary IL.
10
Semestre 6
There are a lot of treaties nowadays (around 1000 volumes of treaties, the UN treaty series
is one example).
We will look at the law governing the treaties which includes the making of treaties, the
interpretation of treaties and the ending of treaties.
The law of treaties was at first customary law but it has been codified in the Vienna
Convention on the law of treaties concluded on 23 May 1969.
In the 1950s and 60s came the idea to have a « treaty on treaties » in order to clarify the
rules but also modernize them. The law was created largely by the western states before
and it had to be adapted to the newly formed states.
The Vienna Convention was a product of the deliberation of the International Law
Commission. This commission, which is a UN body established by the General Assembly, is
made up of independent experts charged with the codification and progressive
development of IL.
There was a UN conference on the law of treaties in 1968 and the result was the 1969
Vienna Convention.
Concerning the scope of the convention, article 1 of the Vienna Convention states that this
treaty only deals with the law on treaties between states. There is also a 1986 convention
on the law of treaties between states and international organizations.
The definition of a treaty is set out in article 2.1., which defines a treaty as an
international agreement between states in written form and governed by IL, whatever
its particular designation. So the convention only deals with written and not oral
agreements between states. The main problem with oral agreements is the proof of
content.
There was a case between Denmark and Norway where a minister made a statement that
Norway wouldn’t interfere in Danish affairs on Greenland (and this statement was seen as
a binding treaty). The court decided that it was a unilateral declaration and that
agreements that weren’t declared with the United Nations couldn’t be used by a court as
an agreement.
! International agreements can be oral BUT they’re not covered by the Vienna
convention.
Finally, Article 4 of the Vienna convention states that the VC is not retroactive. It only
applies to treaties concluded after its entry into force in 1980.
What about treaties entered into force before? The ICJ has said that the provisions in the
VC largely reflect customary rules and therefore it’s not difficult to deal with them.
11
Semestre 6
! For example in a case between Botswana and Namibia, there was an island on a river
between the two states and the question was who had the right to the island. The ICJ
needed to interpret a very old treaty that was signed by UK (who had Botswana) and
Germany (who had Namibia). The court looked at the rule on interpretation, set out in
articles 32 and 33 of the convention and accepted them as customary rule.
What is a treaty?
Article 2.1., gives a definition by saying that a treaty is an international agreement
between states in written form and governed by IL, whatever its particular
designation.
Treaties can also be concluded with or between international organizations, but the
present convention only applies to treaties between states.
A treaty, for the purpose of the Vienna Convention, must be in written form and governed
by international law. It can be embodied in one instrument or in several related
instruments (f.i. a treaty can be concluded through an exchange of letters).
The nomenclature (title) is not decisive! International instruments have different titles
such as covenants, charters or protocols. For example in a case between Qatar and
Bahrein,the question concerned the sovereignty on the shore of the Arabian Golf between
the two States.
There had been negotiations between them to settle the dispute. There was also a minute
about what they agreed on during one meeting. Qatar took the minute and registered it as
a treaty in the UN. The question was if this minute was now « a treaty or not ».
Just because something is registered doesn’t give it the status of a treaty. But the answer
of the court was positive. So the name (« minute ») wasn’t important.
The court said that there must be an intention to create legal obligations.
Non-legally binding arrangements are a flexible way of “treaty making” but some people
also see them as dangerous because they are not binding and therefor often end up
deceiving the expectations.
A positive aspect is that the UK entered into a number of very important MoUs with various
African and Middle-East States. Those agreements cover the treatments that individuals,
expelled from one state into another, will experience with the authorities. These MoUs
allow the UK to deport individuals that are nationals of these countries while the EU law
and human rights court would forbid that because these people would be at a risk of
torture after the deport. MoUs made it possible to send these people back and at the same
time there were guarantees on how these people would be treated.
According to article 18, a state is bound by the treaty even before its entering into force.
If a state signs a treaty subject to ratification, it is obliged to refrain from acts defeating
the object and purposes of the treaty. This is also known as the interim obligation because
it governs state conduct in the period between signalling its intention to join a treaty
(signature) and the moment the state becomes bound by the treaty (ratification).
For example in the US, the President is required to obtain the advice and consent of 2/3 of
the Senate before ratifying a treaty. Bill Clinton signed the Rome Statute, knowing it would
never be passing the Senate. Under the Bush administration in 2002, a Senate man Bolton
sent a letter to the UN secretary general which said that the US did not intend to become
party to the treaty and there were no legal obligations arising from its signature. The US
did that to be no longer bound by an obligation from article 18 of the VC.
Just because a State is party to a treaty does not mean that the treaty is in force in that
State. Often a treaty only comes into force after a certain number of states have entered
into the treaty and after a certain amount of time.
When a state is satisfied with most of the terms of a treaty, but is unhappy about
particular provisions, it may, in certain circumstances, wish to refuse to accept or to be
bound by such provisions, while consenting to the rest of the agreement.
If you enter to a treaty, you can’t unilaterally modify it afterwards. So from the beginning
you need to state your reservations OR you are bound by the whole treaty.
By means of excluding certain provisions, states may agree to be bound by a treaty, which
otherwise they might reject entirely. Reservations allow to adjust the obligations of
some states, for cultural, social or political reasons. This may have beneficial results in
cases of multilateral treaties because it allows to induce as many states as possible to
adhere to the proposed treaty.
The capacity of a state to make reservations to an international treaty illustrates the
principle of sovereignty of states.
On the other hand, having a treaty with lots of reservations would well jeopardize the
whole exercise because it could seriously dislocate the whole purpose of the agreement.
So the question always arises if you should push for an attractive treaty that everyone
can accept or one that is legally astringent?
This problem would not arise in the case of a bilateral treaty, since a reservation by one
party to a proposed term of the agreement would necessitate a renegotiation!
➔ Reservations are only possible in multilateral treaties (article 19)
The law on reservations has developed in the post war period. The original role was that
an attempt to make a reservation was an attempt to renegotiate the treaty and had as
such to be accepted by all the other parties. Today, the customary rules on reservations
are set out in articles 19-21 of the VC.
First of all we have to determine what a reservation is and what is not. There is a
distinction between reservations and interpretative declarations.
Interpretative declarations seek to clarify the meaning or the scope of certain
provisions, whereas a reservation is about seeing to opt out of a provision. A state can
make a declaration about the understanding of a matter or the interpretation of a
particular provision in the treaty.
Interpretative declarations, which are usually deposited at the time of signature, do not
exclude or modify the legal effects of a treaty, but they are taken into account by the
court.
EX: Interpretative declaration: in the Optional Protocol on the Convention on the Rights
of Children: treaty provides you cannot conscript children into armed forces but you can
recruit them if they enrol themselves voluntarily. States however must make efforts to
keep them from taking part in hostilities. You can train them, recruit them but you cannot
enrol them in combat.
The UK put in an interpretative declaration about feasible measures: it might not be
feasible to take under 18 year old recruits out of the unit prior to..
Other states disagreed quite strongly.
The general rule is that reservations are not prohibited, but article 19 of the VC present
the cases in which reservations are forbidden. Reservations can be prohibited by the
treaty itself. A treaty can provide that only specific reservations may be made.
14
Semestre 6
Reservations which are incompatible with the object and the purpose of the treaty, are
also prohibited.
For example: General Pinochet, a dictator in Chile, signed a convention on torture and
asked for a reservation that provided that torture was allowed if there was defence of the
superior order (excusing those torturing others because they had to do it under an order).
This reservation wasn’t accepted as it completely modified the purpose of the treaty.
➔ As treaties become longer and more complex, identifying the object and
purpose of a treaty becomes progressively more difficult.
Article 20-2 states that: “When it appears from the limited number of the negotiating
States and the object and purpose of a treaty that the application of the treaty in its
entirety between all the parties is an essential condition of the consent of each one to be
bound by the treaty, a reservation requires acceptance by all the parties.”
! Acceptance by all the parties required where the integrity of the treaty is vital,
otherwise the treaty would be likely to collapse.
For example: The Antarctica treaty! Antarctica is claimed by 3 states: UK, Argentina and
Chile. The treaty on Antarctica freezes the claims on Antarctica so it wants a status quo
forever. Any reservation made to this treaty would make it completely useless, therefore
any reservation to it would require acceptance by all other parties to the treaty.
For all other cases, the general rule before 1951 was that reservations could only be
made with the consent of all other states involved in the process. If not all the other
parties to a treaty accepted the reservation, the state wishing to make a reservation could
either become a party to the original treaty or not become a party at all.
Multilateral treaties were used more and more and it was finally in 1951 that the ICJ
abandoned this restrictive approach in the reservations to the Genocide Convention case.
In this case, the general assembly of the UN asked the court an advisory opinion in regard
to reservations made by certain countries on the Genocide Convention of 1948. The
reservations didn’t deal with obligations to prevent genocide but only with the dispute
settlements provisions.
The court came up with an opinion that said that reservations could be made and other
states could individually accept them or not. The court also held that any reservation
had to be compatible with the object and purpose of the Convention.
The court’s view was accepted by the Vienna Convention on the Law of Treaties in 1969
and the principle was laid down in article 20-4, which states that:
“In cases not falling under the preceding paragraphs and unless the treaty provides
otherwise
a) Acceptance by another contracting State of a reservation constitutes the reserving State
a party to the treaty in relation to that other State if or when the treaty is in force for
those States;
15
Semestre 6
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;
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.”
Article 20-5 says that acceptance can be tacit: if the state doesn’t object within 12
months, it is considered as accepting the reservation.
Article 21-1 sets out the legal effects of reservations and objections:
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. ! Restores the balance in the relationship between the two states by
declaring that the reservation is reciprocal, namely, the non-reserving state is also not
bound by the provision.
Article 21-3 deals with objecting states: “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.”
Article 24(b): an objecting state, if it wants to prevent a reserving state from becoming a
party to the treaty, has not only to object but also to object explicitly to the reserving
state becoming a contracting state.
The main unresolved issue is to know whether the regime under articles 20 and 21 applies
to all reservations. Is a state that made a prohibited reservation considered as not bound
by the treaty at all or is the state bound without the benefit of the reservation?
In the Belilos v Switzerland case, the court opted for the second option by saying that the
state is in this case bound without the benefit of the reservation.
Who decides this? Generally, treaties establish bodies that are entitled to do so. The
problem has been resolved to a certain extent in 2011 when we came up with guidelines to
practice reservations. The guidelines say that article 19 is to be read with « objective
criteria ».
If a state disagrees with a reservation and the other state says nothing, the silence is a
tacit acceptance of the objection.
Conclusion:
• The ultimate rule contained in the VC is that, unless a treaty provides otherwise,
reservations may be made unless they are incompatible with the treaty’s object
and purpose.
• If a state fails to object to a proposed reservation within a 12 months window, it is
deemed to have accepted it, and the reservation is effective in relations between
the reserving and the non-objecting state.
• If a state does object, it is presumed nonetheless to be accepting the reserving
state as a treaty party. In that case, the provisions to which the reservation relates
are deemed inapplicable in relations between the two states.
The VC sheds no light on how a treaty’s object and purpose is to be reckoned, nor does
practice and particular treaties often do not supply any clues. This makes it hard to
assume that incompatible reservations are automatically void.
16
Semestre 6
If states accept, or fail to object to the reservation within the allotted time, this reflects
their considered judgment that the reservation does not violate the treaty’s object and
purpose.
17
Semestre 6
There are certain methods of interpretation. It is generally agreed that there are 3 ways of
interpreting a treaty.
1. Textual approach: the way written in the treaty. The problem is the strictness of
this approach when you stick to this approach. Article 97 of the UN Charter: The
problem is the word ‚he’. The Secretary General can only be a man?
2. Historical approach: we look at the intention of those who were drafting the treaty.
US way of interpretation for the Constitution of USA: interpreted in the way the
drafters made it in 1796. Adult man who owned land could vote. If we would use
this interpretation today it would not be good to refer to some articles but some
are relevant.
3. Teleological approach: looking at the purpose. What does it aim to achieve? What
do we try to achieve? This could be a problem in the sense where States feel that
bodies end up reading treaties in a matter that States did not intend in the first
place. A treaty that you read today might be interpreted differently than at the
time it was written. But the teleological approach limits this freedom.
Articles 31 and 32 of the Vienna Convention on the law of treaties deal with the
interpretation of treaties. The ICJ said this in a number of cases, as have other
international courts. These articles are regularly applied even if one of the parties to the
disagreement is not a party of the Vienna Convention.
Article 32 sets out supplementary rules of interpretation to determine the meaning when
the interpretation according to article 31 leaves it ambiguous:
“Recourse may be had to supplementary means of interpretation, including the preparatory work
of the treaty and the circumstances of its conclusion, in order to confirm the meaning resulting
from the application of article 31, or to determine the meaning when the interpretation according
to article 31 :
(a) Leaves the meaning ambiguous or obscure; or
(b) Leads to a result which is manifestly absurd or unreasonable.”
➔ A problem is that a lot of states which are parties to a treaty, weren’t a part of
the negotiation of the treaty, so why should they be bound by the preparatory
work, if they only signed up to the actual text of the treaty.
Example of treaty interpretation: Article 8 of the Rome Statute deals with war crimes
such as enlisting children under the age of 16 in national or international armed forces or
using them to actively participate in hostilities.
What does it mean to actively participate in hostilities? Is it the same as taking a direct
part in hostilities, which in essence means taking part in combat?
There was no definition adopted in the treaty, but it is a concept well known in
International law.
➔ Interpretation can be difficult, even when you apply the same rule, the result
can be different because the rules tend to be as general as possible!
Territorial application of a treaty: In the process of applying treaties they could have
different applications depending on who it is going to effect. There could be issues that
arise in that respect. The general rule is that treaties do not have a retroactive effect. If
f.ex. on the boarder of France an Luxembourg they make a treaty that will be applied on
the date of ratification/adoption.
To what territory does it apply? The Netherlands has overseas territory. The UK has
territory next to Mauricius. It is called Jungles island which was once part of Mauricius. It
is politically an overseas territory of the UK. The general rule is that the treaty applies to
the entire territory of the country and any overseas territory. There are exceptions:
19
Semestre 6
sometimes countries can enter into treaties and then exclude the overseas territory. UK
entered in some UN treaties that excluded the Jungles island.
Diego Garcia island: (Guantanamo Island) is often excluded.
The Netherlands has overseas territory: Every EU level treaty excludes the Antilles.
Invalidity of treaties:
If something is invalid it has no effect. Jus cogens is not a question of agreement or
consent. It does not matter what a State thinks about torture or slavery.
Treaties can be void or it can be voidable. When a treaty is void it cannot be applied.
When a treaty is voidable there is a problem but that does not necessarily mean that it
cannot be applied and it can be fixed. Voidable means that the treaty is not dead, the
problem can be fixed. If there is an error it is so essential that it makes the idea of consent
useless. Once the error is identified States can choose either to fix it or to ignore it. They
can move on with the error.
During negociations, you have to get a document (Full powers/plein pouvoir). This
document lists all the things you are allowed to do during the negociation process.
If Luxembourg law provides that a treaty is only effective if signed by the Minister of
Foreign Affairs it has to be ratified by the parliament. Theoretically not getting the
ratification makes it voidable but the Vienna Convention provides that a conflict with
internal laws does not make it invalid unless if it is so fundamental.
• Article 46: The general rule is that a state cannot plead its domestic law in order
to avoid its international obligations! But article 46 gives one exception to this
general principle: if the violation was manifest and concerned a rule of its
international law of fundamental importance.
Paragraph 2 states that “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”.
! Example: Back in 1994 there was a case brought by France against the European
Commission: the question was if the European commission had the competence
under European law to enter into a treaty with.. The ECJ said no.
• Article 48: Error relating to a fact or a situation, which was assumed by the state
to exist at the time of the conclusion. It is possible to invoke a factual error to
invalidate your consent.
➔ 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.
• Article 49: 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.
• Article 50: If the expression of a State’s consent to be bound by a treaty has been
procured through the corruption of its representative of a state, then this State
may invoke such corruption as invalidating its consent to be bound by the treaty.
➔ Allows a state to invalidate or render the treaty void.
• Articles 51 and 52 concern coercion. In the case of coercion by the threat of the
use of force, the treaty is void(without legal effect) ! not voidable!
20
Semestre 6
Unequal treaties are not per se invalid. In practice, states often use a variety (economic,
political, etc.) of pressures to get another state to conclude a treaty.
➔ You cannot invoke inequality of bargaining power.
• Article 53: “A treaty is void if, at the time of its conclusion, it conflicts with a
peremptory norm (jus cogens) of general international law. For the purposes of the
present Convention, a peremptory norm of general international law 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.”
➔ Norms of “jus cogens”. It is difficult to know what these norms of jus cogens
are.
France is not a party of the Vienna convention on the law of treaties because
the norms of jus cogens weren’t clearly defined and so they opposed themselves
to such a superior category of norms in IL.
The prohibition of genocide is nowadays a norm of jus cogens. Torture and
slavery may also be norms of jus cogens.
There aren’t many of these norms and there is not much use made of them!
There are no examples of treaties being found void because they violate norms
of jus cogens.
• Article 64: “If a new peremptory norm of general international law emerges, any
existing treaty which is in conflict with that norm becomes void and terminates”.
Article 56 says that a treaty which contains no provision regarding its determination or
withdrawal is not subject to it, unless:
• It is established that the parties intended to admit the possibility of denunciation
or withdrawal; or
• A right of denunciation or withdrawal may be implied by the nature of the treaty.
➔ It is difficult for states under the Vienna Convention to get out of a treaty
unless the other states party to the treaty agree. However, treaties often
contain provisions regarding its termination or the withdrawal from a party.
22
Semestre 6
The subsidiary sources of International Law are general principles, judicial decisions and
the scholarly writings.
General principles play quite a minor role nowadays in public IL because there is so much
treaty law. The reason they were put in there was that there would not be any rules if you
only rely on custom. It was about taking rules out of national legal systems and applying
them to the international legal order.
Judicial decisions:
Judicial decisions can be decisions of both national and international courts and
tribunals.
National courts are state organs so what they do can be both an expression of opinio juris
and an example of state practice. They will enforce the rule on someone.
State immunity: protection which a state is given from being sued in the court of another
state. States are judicially equal under IL. The UN Convention says states have immunity in
most cases but not in all cases. If they enter in commercial transactions, they can be sued
for their failure to perform their obligations under the commercial contracts.
A number of international courts and state courts have applied provisions of it: this is an
expression of the states opinio juris that it is ICL (the fact that they applied a particular
rule).
EX: Area concerning the right of self-defence in IL. The ICJ: no right to self-defence
against attacks by terrorists group, a state doesn’t have a right to self-defence, which
doesn’t mean that it can’t defend itself. It can act within its territory against this attack.
The SC (Security Council) on the other hand and a number of states particularly the US, UK
and Israel do think that there is a right of self-defence against non-state actors. There are
some areas where the ICJ says one thing and other international bodies and some states
say other things. You can’t always take what the ICJ says for law.
23
Semestre 6
content). The evidence is very dispersed: state practice AND states’ expressions.
Given this difficulty, one has shortcuts: general assembly resolution AND/OR
decisions of the court => SO decisions of the court is customary law for the states
that are not parties.
Ex: ICJ said that states should not use force as self-defence even though the
assembly said no.
It is not true any longer, that obligations of the charter shall prevail on obligation of any
other charter (art 103 of the charter).
➔ Security Council’s powers caused many problems as there have been some
sanctions against individuals. Isn’t this contrary to human rights? The classical
reading of the art 103 says that there is no review of the security council
decisions.
The classic view is that International organizations don’t really make law. Article of the
statute of the ICJ doesn’t talk about the law making function of International
Organizations.
However, the EU is the perfect example of an IO that makes law (BUT it has been created
by a treaty in a first place => empowerment).
The UN is a global political organization. There are two main organs of the UN that might
put themselves forward as the legislator :
➢ The general assembly
➢ The security council
The resolutions of the General Assembly and the Security Council can play a role in the
formation of law!
GENERAL ASSEMBLY:
Article 10 of the UN charter deals with the assembly: she may discuss any matter within
the charter or anything that has to do with functions of any organs of the UN ! plenary
power to discuss within the scope of the charter ! very wide mandate.
Article 12 talks about recommendations that she can do to the council or the
member states.
24
Semestre 6
Recommendations or resolutions are not binding (by law). Resolutions can do things like
establish the budget of the UN, admit members into the UN, electing judges. But these
decisions have legal effets only in regards to the internal working of the UN but they
cannot bind the International community as a whole.
Can we therefore ignore the assembly as it’s not binding? NO, there are 2 reasons:
Ex: Nicaragua case: because of the USA reservations, Nicaragua could not rely on
the treaty. Nicaragua had to argue using principals of the UN charter AND
customary law. The court, in order to make a decision, looked at the « friendly
relations resolution » (recommendation 2625 of 1970) of the assembly.
➔ SO the court, and they do it often (ex: legality of the use or possession of
nuclear weapon), look at the resolution of the assembly.
➔ Assembly resolutions may say what is and what is not customary law !
development of customary law in a multilateral manner. This role is important
(but not decisive).
Ex: what does « self-determination » in the charter mean? You may look at the «
trusteeship » etc., but all this is not entirely clear. And this is unsurprising: a
number of the major powers that participated in the draft of the charter in 1945
had, in that time, large colonisations. None of the colonies had at that time
become independent. We had to wait for the 50’s and 60’s. So there is ambiguity
to protection the powers of colonizators.
So the general assembly came up with important resolution that “declared”
what self-determination is: « all people have the right to self-determination …etc
».
25
Semestre 6
➔ 6 years later, 2 major treaties on human rights repeated the solution of the GA
in there treaty.
British Indian Ocean territory: Diego Garcia is a US military base in the Indian Ocean, it
was administered by Mauricius (UK colony). Mauritius said: UK government acted contrary
to the right of self-determination. Principle of self-determination is in the Charter of the
UN but it is not given any context. It was a political principle but no it is in the Charter.
What does it mean? The UN GA adopted two resolutions about self-determination (50/41
and 15/14) in the 1960’s. It says that all peoples have the right to self-determination. It
primarily applies in the colonial context. Self government = self-determination. Article 10
says that resolutions are only recommendations.
Article 31 of Vienna Convention: You can take into account subsequent agreements of
parties. The problem is: the resolutions were not adopted by consensus.
The Court: The adoption of the resolution 15/14 was a defining moment in the
consolidation of state practise on decolonisation. GA resolutions even if not binging may
sometimes have normative value on the emergence of opinio juris. The wording has a
normative character because it talks about all the people having the right of self-
determination.
SECURITY COUNCIL:
The Security Council is the organ of the UN with the principal responsibility to
international peace and security. It can bind the member states. We look at it as the
executory power of the UN.
It is designed to take rapid actions when situations arise => chapter 7 of the charter.
Those decisions made by the SC under chapter 7 are binding on the states.
Article 39 of the UN charter says that the council is the organ to make recommendations
OR give non-forcible or forcible measures to be taken, to maintain and restore
international peace and security.
- Article 41 deals with non-forcible measures: not involving of the use of arms and
force. It also may involve economic measures (ex: freezing assets of persons who are
terrorists or are link to terrorism).
- Article 42 deals with forcible measures. (ex: resolution 1973 concerning Libya. Force
was taken against Gadhafi’s forcers against the civilians).
! It can impose obligations on member states and give rights to members (ex: permit
the use of force) => all it does is responding to particular situations involving
international peace and security.
What it is not doing, even if the resolution is mandatory, is engaging in anything that is
«legislation». When there is a particular situation, they undertake time limited measures
26
Semestre 6
in order to end that situation and to remove the threat in order to restore international
peace and security.
Example: If you are allowed to, use force for case X. You may not use force in a subsequent
similar situation -> new authorization must be asked or given by the Security Council.
➔ Exercise of delegated powers under the treaty, so it does not act as a
legislative body!
However, we had two important and interesting resolutions in the last years where the SC
imposed general norms on the Member States => 1373 (2001) and 1540 (2004):
- 13/73 was taken after 9/11. It says that terrorists attack constitutes threats to
international peace and security and reaffirms that such acts or any similar acts
constitute a threat. Therefore, states have to combat international terrorism. The
resolution specifically acts under chapter 7 of the charter ! binding.
All states should prevent and suppress the financing of terrorism. What is interesting is
that few years earlier UN passed a treaty on financing of terrorism => terrorist
financing convention. There was 4 members.
After 9/11, all members were obliged conform practices to the resolution and the
resolution was the same as the treaty before BUT here it somehow imposed the treaty
on all members => general and temporarily unlimited obligations!
! Looks like legislation
- resolution 15/40 concerned nuclear weapons of mass destruction. It again was based
on chapter 7 ! it established a legal regime on how states must act = legislation.by
saying that states must take measures to prevent nuclear weapons to not fall into the
hands of non-state actors.
They look like treaties BUT they are imposed to members.
Relative normativity
There is another form of hierarchy: the jus cogens
In international law, they appear in the articles 53 and 64 of the Vienna convention.
Article 53 talks about the conflict with Jus cogens ! A treaty is void if at the time of its
conclusion it conflicts with a peremptory norm accepted as a norm from which no
derogation is permitted.
Article 64 ! if a new peremptory norm emerges, any existing treaty, which is in conflict
with this norm becomes void.
What is a norm of ius cogens? Article 53 gives a definition:
Norms from which it appears no derogation is possible. They can be replaced with a
norm of same level.
There is an exception to the prohibition of use of force, which is consent. If that is the
case this norm is not of jus cogens because it can be derogated by.
!The peremptory norm has to be recognized as a norm from which no derogation is
permitted by the international community as a whole. Possibly not all states but you must
be near unanimity. France consistently argued there were no such things as norms of jus
cogens. That’s no longer the case, the French position has softened. The Court itself has
admitted that some rules of IL have the status of peremptory norm. The bar is set high for
27
Semestre 6
Examples:
- In the Nicaragua case, the court closely said that genocide is a norm of jus cogens.
- The slave trade, torture, the prohibition on the use of the threat of force maybe.
The irony is that the only impact of jus cogens is that treaties can be void. BUT most of
the time, states don’t enter into treaties that allow them to commit genocide or torture
etc.
➔ So jus cogens is rarely used because there isn’t a lot of norms + states don’t
do anything about them.
What is important is that Jus cogens gives erga omnes obligations (towards all of the
states).
Back in the 1960s, Liberia and Ethiopia brought a case against South Africa (SA), case
related to SA’s conduct as the mandatory power over South West Africa which was a
German colony and a mandate over it was granted by the League of Nations to SA and
therefore Ethiopia and Liberia are entitled to ensure that SA complies with its obligations
under the mandate.
L and E had no standing to bring the claim because you can only sue when you’ve been
injured you only have standing to protect your own legal interests. That was unbelievably
controversial!
➔ One of the reason was because there was no such thing as « erga omnes »
obligations
4 years later, ICJ’s 1970 judgement in the Barcelona traction case: claim brought by
Belgium against Spain relating to the expropriation of a company by the Spanish. Classic
case of diplomatic protection. Court: Distinction between the obligation owed by a state
to the international community as a whole and those owed by it to another state on an
individual basis. The Belgian didn’t have standing to bring the claim because property not
owned by its nationals BUT by a Canadian company. So Belgium was not directly concerned
since the company did not belong to them.
In one case Senegal vs Belgium: a Chad dictator took refuge in Senegal. Senegalese wanted
to prosecute the dictator but failed. Belgium attacked Senegal to prosecute. Senegal
argued that the claim shouldn’t be granted as only Chad could bring such a claim.
➔ Belgium argued that the torture convention was erga omnes. The court
accepted this.
28
Semestre 6
The general rules of international responsibility are set out in a treaty: in the 2001
International Law Commission (ILC) articles on the responsibility of states for wrongful
acts.
With the draft articles: were adopted by the IL Commission. They started in the 1960’s
(Garcia Amador). Looked at the project largely from perspective of state responsibility.
The particular rules that States had to comply with as regard foreign countries when they
establish themselves in their territory.
Garcia was seeking to merge, or at least find parallels between the State responsibility and
international HR law. The next: Roberto Argo took the project on and said we want to look
at the rule for applying generally in order to establish States’ international responsibility.
There was a distinction between primary and secondary rules: they vary from case to case,
from State to State. Depending on which treaties a state may be party to.
- Substantive primary rules on obligations for states
- Secondary rules: the rules on State responsibility that deal with when a State is
responsible for its act and what the consequences might be for an internationally
wrongful act. So they apply across the board in order to determine whether the
State is internationally responsible.
➔ to be applied if primary rules are breached
The ILC articles say nothing about what might be a breach because the obligations that
States owe vary under IL, so you have to look at what are the obligations upon the states in
order to see whether there is a breach.
What do we need to look at?
1. You need to look at what a State’s international obligations are (can be set out in
treaties, can be general rules or customary rules in IL, etc.).
29
Semestre 6
2. You need to look whether there is conduct (acts or omission!) that constitutes a
breach of that international obligation. The obligation may require action or
inaction.
The ILC gives us the general rules when conduct is attributable to a state under
international law:
- The general rule is that the conduct of any agent or organ of the states is
attributable to the state (article 4 ILC). It does not matter if the organ exercises
an executive, judiciary or legislative function.
Sometimes you see remarks made for example by foreign ministers or ambassadors
saying we can’t blame it on the judiciary because the judiciary is independent.
That may be true but it doesn’t matter because we’re not talking about the
government here. The judicial branch is as much and organ of the state as the
executive. If the judiciary acts in a wrongful way then it is attributable to the
state!
➔ It does not matter if it is an organ of central government or a territorial unit of
the state (for example federal and state governments in the US).
- There are a number of states that are federal states, Swiss, USA, Austria, Canada,
Brazil, etc. They give certain competences to the federal government and others to
the states. In term of states responsibility this is irrelevant.
Ex: Legrand case brought by Germany against USA. This was all conduct of the
organs of the state of Arizona. Federal government said they couldn’t do anything,
but that didn’t matter. It’s the conduct of an organ of the state therefore it is
attributable to the state.
➔ All you want to know is if it is an organ of the state.
- How do you determine if a person or entity is an organ of the state? You simply have
to look at the national law!
Article 3: A State can’t plead its domestic law in order to avoid its international
obligations. It does not matter whether a conduct is lawful or unlawful under domestic law
to determine a state’s responsibility under international law!
What if an organ of the state acts in a way that in unlawful or beyond his instructions?
Article 7: “The conduct of an organ of a State or of a person or entity empowered to
exercise elements of the governmental authority shall be considered an act of the State
under international law if the organ, person or entity acts in that capacity, even if it
exceeds its authority or contravenes instructions.”
! If the person is acting in its capacities, then even in the case of excess or
contravention of instruction, the state is held responsible!
Ex: Youmans claim: brought before the US Mexico claims commission in the 1920’s. Various
states claimed their property had been affected. There was an anti foreigner-right in a
Mexican town (“death to gringos”). They killed Americans. Was their conduct attributable
to the Mexican state? The Tribunal said it was because they were acting in their capacity as
an organ of the Mexican state, they were able to act as they did because they had certain
resources given to them by the Mexican state. They’d been given arms and munitions
which they used to assist the mob.
EX: You’re walking down the street and an officer arrests you. He may not have the
authority to do so, there has to be reasonable suspicion. Here he simply doesn’t like the
look of you. He’s probably acting in contravention of instructions, but is he acting as an
organ of the State? Yes because he’s in a uniform and that’s why you will follow him... If,
on the other hand, he was off duty in plain clothes and assaulted you in a pub, then he
would definitely be excessing his authority but not in the capacity of an organ of the State.
30
Semestre 6
However flashing your badge or using your gun will make your conduct attributable to the
State.
What about the case when the state acts through private individuals but it does not
confer power lawfully?
Article 8 of the ICL says that : ”The conduct of a person or group of persons shall be
considered an act of a State under international law if the person or group of persons is in
fact acting on the instructions of, or under the direction or control of, that State in
carrying out the conduct.” So if there is a control of the state, the act is imputable to the
State.
Ex: Nicaragua Case : USA supported rebels. Can the acts of rebels be attributed to the
USA? The court said the test was one of direct control, so you had to show that the US
was specifically telling the rebels what to do. The US was giving the means (arms etc.) but
they were not telling them what to do on a daily basis and therefor the actions of the
rebels were not attributable to the US!
Some years later the issue came up in a rather different context: the Tadic case:
Tadic was a criminal before war and used the war to make profit. He was the first
defendant before the court. Tadic decided that he would leave and go to Germany where
he was arrested. Was this an international or non-international conflict? The argument was
that it was a civil war. The prosecution said that it was international because Yugoslavia
were backing Bosnian Serbs. So it was an international conflict between Yugoslavia and BH.
The appeals chamber agreed because Yugoslavia had overall control.
! So the court said that effective or overall control was enough.
! Article 8 talks about “direction or control” but it doesn’t talk about the minimal
degree of direction and control.
Later cases held that there must be effective control so the question remains unclear.
Article 11 has to do with conduct acknowledged and adopted by a State on its own:
“Conduct which is not attributable to a State under the preceding articles shall
nevertheless be considered an act of that State under international law if and to the
extent that the State acknowledges and adopts the conduct in question as its own.”
! Teheran hostages case: During the Iranian revolution, Iranian students took over the US
embassy in Teheran and took the employees hostage. One of the issues in this case was to
know if the acts of the students were attributable to the State”. The court said that they
were not originally but the Iranian authority made no effort to end the situation and also
made various statements saying we support the students and their demands, the US must
respond, etc.
➢ Article 21 talks about self-defence Article 2(4) of the UN charter prohibits the use
of force. The use of self-defence is one of the exceptions.
➢ Article 23 talks about force majeure: where the act was due to the occurrence of
an irresistible force or of an unseen event beyond the control of the state, making
it materially impossible to perform the obligation
The 2nd part of the ICL concerns the content (standing and
countermeasures ) of the international responsibility of a State:
What happens if a state commits a wrongful act? There are legal consequences. What are
these legal consequences?
➢ Article 29: Continued duty of performance ! the obligation does not cease if
there is a violation.
➢ Article 30: Cessation and non-repetition
➢ Article 31: reparation ! must, as far as possible, wipe out all the consequences of the
illegal act and re-establish the situation, which would have existed if that act had not been
committed.
➢ Article 34 says that reparation can take various forms:
o Restitution (when possible if not compensation): it aims to re-establish the
situation, which existed before the wrongful act was committed. While restitution
has occurred in the past, it is more rare today, if only because the nature of such
disputes has changed. Chorzow factory case
o Compensation: Payment of money to a state for its loss suffered.
Compensation is the appropriate form of reparation because it is providing states
with what they really want, which is money in most cases. Damage includes both
material and non-material (or moral) damage.
o Satisfaction (article 37) : relates to non-monetary reparation. It may consist in
acknowledgment of the breach, an expression of regret, a formal apology or
another appropriate modality. It shall not be out of proportion or
humiliating.
32
Semestre 6
➢ is of such a character as radically to change the position of all the other States to
which the obligation is owed with respect to the further performance of the
obligation.
! In order to be an injured state, it is necessary to show that the breach of the obligation
specially affects that state.
EX: prohibition of aggression: this obligation is an obligation that states owe erga omnes
but obviously if a state commits an aggression against another state, that second state
will be specially affected and would qualify as an injured state.
! There is a second way that you can be an injured state, namely in cases where the
breach of obligation is of such a character as to radically change the position of the
other states: treaties of such character as that the failure to comply by one state changes
the position of all other states
EX: the non proliferation treaty: if a given state seeks to develop nuclear weapons, is this
a breach of the state’s obligation under the treaty, of such a character as to change the
provision of the others with respect to performance of the future obligations? Even if that
state doesn’t pose a threat to you, the idea is that if one state does start to develop
nuclear weapons, it triggers a chain reaction and the others start doing it as well.
➔ We now have a conception in IL that maybe there is not just the individual state
interest but that at times there can also be a wider community interest.
If there is a violation of a general obligation (towards all states), in that case any
state that is concerned by the breach may be authorized to invoke the violation
! erga omes.
The reason why it’s important is that if you’re an injured state and you invoke the R of
another state. When you are an injured state you can go to the wrongdoing state telling
them we want you to end what you are doing and to make reparation or pay us
compensation for the loss we have sustained. If they don’t do that, then you can
undertake counter measures!!
Article 49: an injured state may only take counter-measures (CM) against the state, which
is responsible for an internationally wrongful act in order to induce that state to come
back into compliance with its obligations.
A wrongdoing state has to cease the violation of its primary obligations and to make
appropriate reparation (restitution, compensation, apology). So CM are about inducing
compliance and are not meant to be punitive, but meant to be about seeking to induce
the wrongdoing state to come back into compliance with its legal obligations.
Article 52: CM must not be taken if the dispute is pending before a court or tribunal which
has the authority to make decisions binding on the parties. Of course the Court might be
ordering the wrongdoing state to make amends if it doesn’t do so, the invoking state can
undertake CM, but proportionate to the injury suffered.
International Crimes:
Breach of jus cogens norms. Breach of International Obligation which is so essential for the
international community. Consequences for committing an international crime.
Article 40 and 41: Breach of norms of jus cogens.
Other States have the obligation for example not to recognise the annexation of Crimea.
The State who is responsible for the conduct of agents and those individuals themselves
can also be held criminal responsibility.
Tribunal: Portugal shouldn’t have shot the German officers in the first place, so Germany
was entitled to undertake CM (reprisals), however the actions taken by Germany were
entirely disproportionate and entitled incommensurate with the injury suffered and
therefore unlawful.
Article 48 deals with invocation of responsibility by a State other than an injured state:
“1. Any State other than an injured State is entitled to invoke the responsibility of another
State in accordance with paragraph 2 if:
(a) the obligation breached is owed to a group of States including that State, and is
established for the protection of a collective interest of the group; or
(b) the obligation breached is owed to the international community as a whole.
2. Any State entitled to invoke responsibility under paragraph 1 may claim from the
responsible State:
(a) cessation of the internationally wrongful act, and assurances and guarantees of non-
repetition in accordance with article 30; and
(b) performance of the obligation of reparation in accordance with the preceding articles,
in the interest of the injured State or of the beneficiaries of the obligation breached.
3. The requirements for the invocation of responsibility by an injured State under articles
43, 44 and 45 apply to an invocation of responsibility by a State entitled to do so under
paragraph 1.”
34
Semestre 6
35
Semestre 6
Force was the traditional mean to settle disputes at the interstate level, but nowadays as
it is forbidden, there must be some new means. Article 2§3 of Un charter provides that
members should settle disputes by “peaceful means”.
There is no obligation for states to settle all their disputes peacefully. The obligation is
simply to settle those disputes peacefully, which might endanger international peace and
security.
A non-exhaustive list of peaceful methods is set out in Article 33(1) of the UN Charter:
- Negotiation
- Enquiry
- Mediation
- Conciliation
- Arbitration
- Judicial settlement
- Resort to regional agencies or arrangements
However, with the exception of forcible measures, States have a free choice of means as
to which method to use, in order to settle their disputes. ! Sovereign equality.
States can also find other peaceful means than the ones in the list.
➔ So States cannot be required to use any particular method
A state can only be required to use a particular method if the state has given its consent
to do so. This can be done by a treaty for all disputes between the parties, or just by a
general consent to use a particular method for one particular class or for all disputes.
➔ We are talking about a “legal consent” that is manifested by acts, conduct etc.
➔ We have to distinguish “consent (legal agreement) and genuine agreement (not
a legal consent
36
Semestre 6
Example: Case about the maritime boundaries in South China Sea. There was a dispute
between China and the Philippines. An arbitrary tribunal was created. China did not agree
that this tribunal had jurisdiction over the dispute. Here there was previous consent and
therefore binding!
In International law, both parties have to consent before a dispute can be settled by a
particular method, so they have to accept the jurisdiction at a certain point of time.
➔ As a result, consent is of much greater importance in IL than in domestic legal
systems and the negotiation/bargaining in IL takes far less often “place in the
shadow” of the court.
➔ In IL there is no court or third party that is independent and that has
jurisdiction without consent. That means that bargaining is very important at
the International level because it has a bigger impact that on the national level!
The disputes settlement mechanisms that are set out in article 33:
➢ Negotiation
It is the most commonly used and traditional method. It is often the only one. It is
incredibly flexible. Normally it is done through diplomatic meetings.
The advantage is that the solution is entirely left to the parties concerned and that
there can be reached an agreement between the two, without a “loser” or a
“winner”.
Negotiation can also be multilateral and not only bilateral. Why do states like negotiation?
Two reasons:
o They maintain control about proceedings (time, place, for how long, etc.)
and;
o They maintain control over the outcome!
A disadvantage of the negotiation is that in reality negotiation is often done by coercion,
pressure of the strong party. Certain forms of coercion are illegal under IL nowadays.
In reality, no 2 states are ever equal, there is always one that is more powerful.
So there is inequality of bargaining. In practice, states use a variety of pressures (political,
economic, etc.) ! not unlawful.
Treaties often impose negotiation if there is an issue about that treaty.
➢ Inquiry
- Scheme whereby the contending parties agree to set up an international body,
consisting or independent and impartial individuals, for the limited purpose of eludicating
the facts in dispute by means of an impartial and conscientious investigation.
- Inquiry may also be a stage of a more complex settlement of disputes process: it aims at
establishing the facts with a view to facilitating the task of a conciliation commission or
an arbitral or judicial body.
- Commission of enquiry: commission with neutral and national members of each States.
They investigate the situation. The resolutions are generally not binding to the party.
Conciliation is generally said to combine the techniques of reconciliation. It is a body
established it could be an individual or a Commission.
Inquiry is meant to discover the facts. It is not necessarily there to resolve the dispute. It
is not meant to give solutions but determine the facts.
➢ Good offices
A third party or an international body asks or offers to induce the parties in disagreement
to negotiate an amicable settlement.
37
Semestre 6
➢ Mediation
The third party takes a more active role by participating in the negotiations between the
two parties and informally encouraging ways of settling the dispute. States decide to bring
in a neutral third party in order to help them move forward in the negotiations. Sometimes
mediators come up with solutions but it is up to the parties to accept it.
➢ Conciliation
Even more active role of third party:
It considers the various factual and legal elements of the dispute and formally proposes
the terms of settlement (which are not legally binding on the disputants)
The proposals are not binding, contrary to an arbitrary reward.
A lot of agreements provide for or allow a sort of conciliation.
Conciliation can be seen as a form of institutionalised negotiation or a non-binding
arbitration.
The conciliator will determine the facts and then proposes a solution that the parties can
accept or reject.
➢ Arbitration (binding):
It is like a jurisdiction in the idea that you have an impartial jury that decides on the
matter (third party dispute settlement). Based on facts AND law.
It is a method that also exists in domestic disputes. Especially in commercial disputes. The
reason for that is that both want to their own national court, so the solution is to go for a
form of neutral law.
The goal is to eliminate the differences on the basis of international legal standards
previously accepted by the States.
- Most of the time there are arbitration tribunals that deal with a particular case and
then disappear or arbitration tribunals that deal with a particular type of disputes.
- States can enter into treaties providing that the settlement of their disputes will be
done by Arbitration.
- There are bilateral and multilateral arbitrary treaties.
- Each party choses one arbitrator and then a third one is chose by the two. (has to
be an odd number)
- Arbitrators determine how the proceedings are going to take place.
- The arbitration tribunal can only rule on what the parties have agreed to.
The effect of arbitration? It is binding, but not necessary final!
Another problem is that there are no enforcement measures. States can simply use
countermeasures if the convicted state does not comply with the arbitration result.
Reasons for states to choose arbitration rather than a judicial settlement (by the ICJ)?
Three reasons:
➢ Secrecy ! In arbitration, parties can keep everything secret.
➢ Greater party control ! over the composition of the tribunal, the proceedings and
the result (can choose the rules that will be applied).
➢ The ability to avoid the intervention in the proceedings by a third State ! If you
look at the statute of the ICJ, it opens the way for the intervention by third states.
➢ (What you often find is that states are not happy with the ICJ and there for use
arbitration).
Difference between national legal orders and international legal orders. Let’s pretend you
have a legal claim, you claim to be enabled to something on the basis of the law. You have a
problem with your neighbor? What would you do on an international level, you go to the
police, you state proceeding in the state. Within the state, everyone is subjected to the
38
Semestre 6
state. The state is normally the entity that has jurisdiction and applies the law.
In international law, you cannot start from such an assumption. States are not subjected to
such an authority. States are equal in a legal way, each has the same rights and the same
obligations. They do not recongnise any identity superior to them. If they do not accept, to
be subjected, they are not subjected to anyone or anything. In international law, starting
from the Westphalian System after the 30 years war, we have a system of states who do not
recognize anybody superior to them.
During older middle age, church lost power which made the states power, mainly the
sovereigns power grow. By default they are not subjected.
In case of a dispute ?
Most states respect international law, most of the time. You respect the law because you
think there is some kind of sanction to if you don’t respect it. There is a social and political
pressure. There is a society of states, there are certain rules you need to respect to deal with
them. It’s like an etiquette. In a way, you can say the IL is a social convention. Also very
practical reason, you have to compromise your action. You may also need international
transport. It may happen that sometimes states apply law, but one of them decides not to
comply. Traditionally there were not many mechanisms to settle disputes. You had to react
unilaterally to enforce your rights. There were no real countermeasures except those from
the state. In 1945, these countermeasures also include the use of armed force.
With UN Charter, there is a general prohibition against the use of force. Countermeasures
are actions that would imply violation of it but do not imply the responsibility of the state if
they are takes as action from a State against another State in other hand, if a state restricts
the access to the citizens, then the State can do the same for the citizens of the other state.
The 2 measures are not illegal, but often used.
We can devide these mechanisms in two categories. In the end of the day you want that
parties reach a compromise, this is the 1 category.
The other category, is based on a binding decision by a third entity. A judgement, that the
parties have to follow, respect and comply with. All these mechanisms, all the parties that
have to accept to be bound by those mechanisms, if there is no acceptance the mechanism
has no effect on the state. The mechanism has no power to judge the state, the power is
void.
There are 3:
• Negotiation -> bilateral relations, there will be a diplomatic exchange and one tries to
find a solution to the problem
• Enquiry -> an expert should judge the facts or technical problem
Latelier Case of 1999 (chile)
• Means of conciliation -> there is a 3rd party which offers himself to help the 2 States
in dispute to find an agreement. It can be ask by the parties to have an active role in
the intervention. Different degrees of the involvement of the 3rd party.
o Good offices: offer good offices. The party does not only induce to negotiate
but also to participate in negociations.
o Conciliation: 3rd party may be asked to suggest a solution to the 2 parties to
the dispute, but the suggestion is not binding. There are many treaties which
provide a convention for conciliation (ex. Vienna convention – art 66b)
provide a conciliation as solution. Art 39 procedure of conciliation. Here are
39
Semestre 6
individuals and no states. The state under which ? The conciliation should be
confidential.
A state that doesn’t comply and come out with a conciliation doesn’t violate the
international law.
Other group of mechanisms, We are dealing with mechanisms with binding decisions by the
parties. There are 2 kind of mechanisms: arbitration and adjudication:
- Arbitration: parties choose the arbitrators, the mandate only lasts for one case.
o If you do not reconginse anybody above a state, establishind a general
jurisdiction is difficult
o The Convention of the pacific settlement of disputes established the
permanent court of Justice. In any case the PCIJ, is only one of the possibilities
for arbitration. There is an agreement in which they decide how many
members the tribunal will have, how these members will be chosen. The
parties also decide which is the applicable law. Once you have an award, it
can be enforced. Often there is a problem concerning the power attributed to
the tribunal. If they do something that is not specified in the agreement, it is
void. The parties are very vigilant to what the tribunal has done. ( … vs Russia)
- Adjudication
o The role of the IL is very primitive. International courts which are standing
courts. The first of them is established in 1921. The idea was that we had such
a bloody war and to establish such a court. Permanent court of Justice. This is
a real court of justice. This courst was established by a treaty. This court
somehow still exists. Today this is called the international court of justice. The
court is composed of 15 judges appointed by the Security Council by the
General Assembly. If at the moment of the dispute no judge of the nationality
of the 2 parties is sitting in the court, the country could ask to appoint a judge
with this nationality.
o There are very strict rules in the jurisdiction. International jurisdiction there is
only power to hear and judge the cause, if there is a consent.
o 3 main basis of the jurisdiction of the court:
§ Compromise (clause in a treaty): It is a special agreement between 2
states (parties) which agree to submit a dispute to the court. They
should ask the court to decide this dispute. They do with a
compromise.
§ Optional clause, which contains in article 36§2 of the statute of the international court of
justice -> a state can be recognized the jurisdiction as binding (compulsory). Only in relation
if the other states also accepts the compulsory jurisdiction. The difficult part of this is
40
Semestre 6
that a State will recognize the Jurisdiction as compulsory with a declaration but they cannot
touch reservation to their declaration. (UK excludes all dispute with the Common Wealth.)
Your reservation for one country can be used for that country (the UK brought a case
against FR before the ICJ, France says that this is before 1994, so FR can say that the ICJ has
no jurisdiction of the state because of the reservation of the UK because of the art 36.) a state
can accept the jurisdiction of the court, but the state has to do it. The acceptance can
be anticipated in the treaty.
There are also other kind of disputes between States and other actors (individuals).
(Frankovich Case)
After WW2 there was very few arbitration, it only recently began to grow. Arbitration
usually has remained ad hoc.
The former arbitral tribunals: mixed commission, sovereign arbitrators and single
arbitratiors. Example: between great britain and portugal, the arbitrator was a collective
arbitrator from Hamburg.
Most tribunal have free members.
How to select an arbitrator: Sometimes it is possible to name the members in a special
agreement or even a general agreement. Normally they are appointed by the two parties
together. Arbitrators tend to be of mature years. It is possible to challenge the nomination
of an arbitrator.
41
Semestre 6
Secrecy: Before the ICJ the case will be published as well as the transcript and there is a
live stream. -> confidentiality
Choice of arbitrators: before the ICJ you get the chance to choose a national judge. In
arbitration you can choose or influence the choice of arbitrators.
The Statute of ICJ permits the intervention of a third State.
Different immunities
“An exemption from the judicial and enforcement jurisdiction of the state”
Jurisdiction: lawful power of a State to define and enforce the rights and duties, and control
the conduct of natural and juridical persons.
Generally we distinguish 3 types of jurisdiction:
There is a legislative jurisdiction of prescriptive competence.
- Establishing rules: exercise of legislative jurisdiction or prescriptive comptetence
- Establighing procedures for identifying breaches of the rules: judicial jurisdiction or
adjudivative competence
- Forcibly imposing consequences such as loss of liberty or property for breaches
The state has the power to create legal rules, to made them execute and control if they are
well executed.
Most of the time a person that is entitled to adjudication is also entitled immunity for
enforcement.
42
Semestre 6
How to distinguish ?
There are two criteria, that of the nature of the act. Is the act regulated by private or public
law ? If it is regulated by private law, you could think that it is a private act whereas by
public law it is easier. However this is not sufficient, as this can change from state to state.
Is it a private of a public act ? Buying an selling goods ? = Private act
The purpose of the act: Was the act performed to reach public interest ? You can have acts
that are formaly private, but let’s assume that the state is buying food because the
population is starving, these goods are needed because there is a collective emergency, so
the act is private with a public purpose. These acts of the state, are acts that are covered by
immunitiy, so you cannot challenge them before the courts of another state.
Legal Basis
- Cusom
o Codified by the Vienna Convention
Who enjoys diplomatic immunities ?
- Head of missions
- Diplomatic Agents
o They must be accepted and accredited by the receiving State(also family
members and people part of his household)
- The members of the family of a diplomatic agent forming part of his households
Content Immunity from jurisdiction
- Provisions limiting the impact of diplomatic immunity
o The receiving State can at any time and without having to explain it’s decision
declare that a foreign diplomat is persona non grata or “not acceptable”
o The diplocmatic agent only enjoys immunity from the courts of the receiving
State.
If there is a customary rule that states have to grant immunity to an organization, states
have to do so, even if treaties do not.
44
Semestre 6
2nd thing that States that are part of the IcJ Statute agree to is Interim measures of
protection. There are dealt with in article 41 of the ICJ Statute. Provisional measure that
the Court indicates until the Court has issued a judgement.
Provisional measure can only be urgent. It does not rule definitively if it has jurisdiction.
The provisional measures were never binding. Regardless of whether it has jurisdiction for
a particular dispute, that is seperate from whether the ICJ has jurisdiction for interim
measures of protection.
Art. 62 of the Statute: for example in a boundary dispute between two States a different
State not party to the dispute might think that the decision affects its own legal rights or
interests. The Court has the possibilty to allow a different State to intervene. But the
other States have to agree to this.
Art 96 of the Statute: The Court also has an advisory jurisdiction if the GA or SC asks a
question. The Courts advisory jurisdiction has been used to circumvente the fact that
disputes are only treated between States. GA has referred for an advisory opinion by the
Court for matters which are actually in dispute but those advisory opinions are not binding.
Sometimes it serves States that are party to a dispute.
Judges: they are meant to be independant and of high moral character. (Art 2 of the
Statute). Sometimes people are appointed without any experience in IL.
People who have been judges in national jurisdictions or ministers of justice or permanent
representative at the UN of NY or legal advisor to MOFA.
Your State has to support your candidacy.
The Court sits in the Hague and has a small staff. The Court is underressourced because
the UN does not have enough money.
What if one of the judges has the nationality of the State party?. A state is entitled to
appoint its own ad hoc judge. Is that not contrary to the principle of impartiality?
States need to be encouraged to go before the ICJ because States fear that they lose
control, however it is based on their submissions. The opinion of the ad hoc judge is
normally not decisive because of the total number of judges.
The Court may form chambers composed of three judges to deal with particular categories
of cases. This option is not used very often.
Contentious jurisdiction: based on consent.
Compromissory clauses: says that disputes rising under this treaty shall be referred to the
ICJ or arbitration
Special agreement: where a dispute has arisen the disputing States agree to refer it to the
ICJ. That is a common way for disputes going to the Court because there is legal consent
and normally a general agreement by the parties to have their disputes to be referred to
the Court. When it does arise the party may feel hard done by and they might be unwilling
to cooperate.
Jursidiction of the Court comprises all matters specially provided for in the Charter of the
UN. But there is no such provision, it was removed in the San Francisco conference.
Compulsory jurisdiction: when a State takes advantage of an optional clause in article 36
(2). State can make a declaration saying that it accepts the compulsory jurisdiction of the
Court. But it only does so in relation to other States who have also done it. When a State
makes a declaration it may also attach reservations.
45
Semestre 6
Cameroun c. Nigeria: Nigeria had no idea that Cameroun had accepted cumpolsory
jurisdiction. Both States accepted cumpolsory jurisdiction. The declaration has only to be
notified to the Court and not to the other State party.
Are reservations to those declarations valid?
The declarations are only an option. The reservations can be attached to declarations. If
your are a respondend in a case you can always rely on an applicant reservation.
Norway c. France: France had a reservation to the declaration. Not many States have made
declarations.
Russia and China never accepted the cumpolsory jurisdiction.
One final way for jurisdiction: doctrine of Forum Prorogatum.
UK in the 50’s made a claim against Argentina and Chili for sovereignty of some islands.
Argentina and Chili did not want to go in front of the ICJ. The UK could show of how good
their claim is. The dispute did not include the question of sovereignty over the Falkland
islands.
Article 37 of the Charter: if you look at the treaty and it does not refer to the ICJ but to a
different tribunal then you just read that as having to be referred to the ICJ.
The Court has also to deal with admissibility. It means that the Court cannot hear the case
at that moment. Maybe it could have done in the past or could deal with in the future.
East Timoore case: portugal c. Australia: treaty between East Timoore and Australia that
delimits the maritime boundary. In 1974 Portugal withdrew from the colony. Australia has
not entered into a treaty but Portugal still has a decision power on martime boundary in
this case. There was no consent. Portugal could not bring the dispute against Indonesia so
it did against Australia. The Court said that there has to be consent.
ICJ in boundary disputes says that this State has sovereignty over a territory or not. The
ICJ rarely awards compensation but it is up to the States to enforce the judgement.
People tend to concentrate on the cases where there has not been compliance.
Compliancy is the norm rather than the exception but it takes time. Often the judgment is
part of a process that leads to a final settlement of the dispute. The judgement forms a
basis of negociation.
If you look at the history of compliance the cases where compliance goes well are the
cases that were referred to the ICJ by a special agreement.
Advisory jurisdiction: GA and SC can ask an opinion on any legal matter. Other UN agencies
can only ask in matters that are within their competence.
Nuclear weapons case: one was made by the GA if the use or threat is lawful or not. The
WHO also asked the same question but it was said that this is not within their competence.
The UN wants to help and assist the organs of the UN and not to settle an existing dispute.
Binding advisory opinion: the Court can through the use of advisory opinions resolve a
dispute between a State and an International organisation.
46