Assignment 9
Delp10
PIL_fall2020_St.-Dr.Sharefah.pptxKUWAIT INTERNATIONAL LAW SCHOOL
PUBLIC INTERNATIONAL LAW
Dr. Sharefah Almuhana
1
The STRUCTURE OF THE COURSE
Chapter I: Introduction to International Law;
Chapter II: Sources of International Law;
Chapter III: The Law of Treaties;
Chapter IV: Subjects of International Law;
Chapter V: State Responsibility.
Chapter I
INTRODUCTION TO INTERNATIONAL LAW
3
INTRODUCTION TO INTERNATIONAL LAW
There are 7.3 billion people in the world
Around 200 States
The United Nations has 193 Member States
International Law is primarily about states, and about states and international organizations and their relations
Eventually, however, international law is about human beings.
States are human creation and they did not always exist.
5
However, today, almost all of the world is covered with the jurisdiction of existing states.
6
THE INFLUENCE OF INTERNATIONAL LAW
One thinks of many things when international law is mentioned, for example:
War and peace;
Human Rights;
Global Warming;
Getting a visa and travelling;
Food and clothing we buy, etc.
We are actually influenced by international law all the time.
1.THE NATURE AND DEVELOPMENT OF INTERNATIONAL LAW
There are many differences between the law applicable within national law (or municipal law) and the law applicable outside of national law, namely, international law.
International law applies between states, international organizations and in some cases, individuals.
International law is divided into public and private international law.
Private and Public International Law
The adjective ‘public’ is in contrast to ‘private’ international law.
Private international law deals with private relations between natural and legal persons of different countries when concerned with subjects, objects or actions belonging to different states.
Private international law is sometimes named as “Conflict of Laws”.
This is so in particular in Common Law countries (UK, US, Canada, Australia, New Zealand etc.).
PUBLIC INTERNATIONAL LAW
Public International Law is applicable between public entities in international relations and covers relations between states and other subjects of international law.
It may be universal or general, in which case it binds all the states (or practically all depending upon the nature of the rule).
It may be regional, whereby a group of states linked geographically or ideologically may recognize special rules applying only to them.
2. LAW AND POLITICS IN THE WORLD COMMUNITY
As lawyers having legal education primarily about our municipal (national) law, we are used to the notion of division of powers.
Therefore, in international law as well we seek the existence of a legislature, judiciary and executive.
Without an existing legislature, judiciary and an executive, can one talk about a legal order?
International law obviously does not fit this model.
INTERNATIONAL LAW AND THE LEGISLATIVE BODY
There is no legislative entity in international law.
The General Assembly of the United Nations comprising delegates from all the member states exists, but its resolutions are not legally binding (with minor exceptions).
It is states and at times other subjects that are making international law, primarily through treaties and international custom.
INTERNATIONAL LAW AND THE JUDICIARY
There is no system of courts in international law in the same way as it exists in municipal (national) law.
The International Court of Justice does exist at the Hague but it can only decide cases when both sides agree and it cannot ensure that its decisions are complied with.
There are numerous tribunals, including among others, the International Criminal Court, the International Tribunal Law for the Law of the Sea.
INTERNATIONAL LAW AND THE EXECUTIVE
There is no executive or governing entity.
The Security Council of the United Nations, which was intended to have such a role in a sense, has at times been effectively constrained by the veto power of the permanent members, namely, the USA, the Russian Federation, China, France, and the United Kingdom.
IS INTERNATIONAL LAW, LAW?
3.THE ROLE OF FORCE
There are writers who put the element of force to the forefront of describing the legal nature of international law, with its lack of a coherent, recognized and comprehensive framework of sanctions.
However, use of force is not prohibited in international law in all circumstances. There are circumstances in which the use of force in international law is regarded as justified and legal.
The Security Council of the United Nations can authorize, among others, use of force and States have a right to self-defense.
THE SECURITY COUNCIL AND USE OF FORCE
Within the United Nations system, sanctions may be imposed by the Security Council upon the determination of a threat to the peace, breach of the peace or act of aggression.
Such sanctions may be economic, for example those proclaimed in 1966 against Rhodesia, or military as in the Korean war in 1950, or indeed both, as in 1990 against Iraq.
USE OF FORCE IN SELF-DEFENCE
States may use force in self-defence, if the object of aggression, and may take action in response to the illegal acts of other states.
Article 51 of the UN Charter provides that:
‘Nothing in the present Charter shall impair the inherent right of individual or collective self-defence if an armed attack occurs against a member of the United Nations, until the Security Council has taken the measures necessary to maintain international peace and security.’
4.THE INTERNATIONAL SYSTEM
The international system is horizontal (not vertical), consisted of States based on the principle of sovereign equality.
In municipal law, the law is above individuals and they do not themselves create the law.
In international law on the other hand, states create the law (primarily through treaties and custom) and they obey or disobey international law.
This has profound implications as regards the sources of international law and its enforcement.
4.THE INTERNATIONAL SYSTEM
Contrary to popular belief, states observe international law, and violations are comparatively rare.
Similarly, in national law, incidents of murder, robbery and rape do occur without destroying the system as such.
Therefore, despite the occasional violations, most of international law provisions are followed.
However, such violations (like war) are more publicized and strike at the heart of the preservation of international peace and justice.
4.THE INTERNATIONAL SYSTEM
Where there is a dispute, it is helpful to have international law even if there are different interpretations as at least there is a common frame of reference for all and different countries will be speaking with a common language, that of international law.
There is no international police to stop states from violating international law.
However, there are a series of other considerations.
For example, states protect the immunity of foreign diplomats in order not to place their own diplomats abroad at risk.
5. THE FUNCTION OF POLITICS
There can never be a complete separation between law and politics as the interplay between law and politics plays a greater role in international law.
International law cannot instantly solve problems of conflict and confrontations between states due to its weaknesses and this should be understood well.
However, it is also not accurate to disregard international law and its role. A medium approach, recognizing its strengths and weaknesses seems to be a better option.
Hugo Grotius (1583–1645)
His publication entitled De iure belli ac pacis (On the Law of War and Peace) published in 1625 earned him the long-standing title of ‘father of international law’.
It remains widely accepted that the treatise played a decisive part in the emergence of international law as a separate legal discipline.
Literature:
--Malcolm N. Shaw, International Law, Seventh Edition, Cambridge University Press, 2014.
-Bardo Fassbender, Anne Peters, The Oxford Handbook of the History of International Law, Oxford University Press, 2012.
24
Chapter II Sources of International Law
1. INTRODUCTION
Sources of international law means where the law gets its force.
In domestic legal systems, laws get force from a specific institution or body of the State, e.g. parliament or courts.
There is no equivalent to law-making bodies in the international legal system
There is no international constitution nor legislation and there is no international court to which the whole international community have to submit.
2. SOURCES OF INTERNATIONAL LAW ARTICLE 38 (1) OF THE ICJ STATUTE
a. International Conventions, whether general or particular (regional), establishing rules expressly recognized by the contesting states;
b. International Custom, as evidence of a general practice accepted as law;
c. General Principles of Law recognized by civilized nations;
d. Judicial Decisions and the Teachings of the most Highly Qualified Publicists, as subsidiary means.
2. SOURCES OF INTERNATIONAL LAW ARTICLE 38 (1) OF THE ICJ STATUTE
What about the following matters that may give rise to international rights and obligations, including:
Binding resolutions of international bodies, such as the Security Council?
Unilateral acts of States?
Norms of Jus Cogens?
A. international TREATIES
Most important international treaties are available on the United Nations Treaty Series (“UNTS”) website ( http://treaties.un.org).
This database is notable for its breadth and scope and also tracks the status of signature and ratifications, as well as reservations/declarations of the parties.
Treaties are the most important source of international law. However, there is no hierarchy between the main sources, except for rules of Jus Cogens.
TREATIES
Article 38(a) mentioned that the ICJ in deciding a dispute shall apply “international conventions, whether general or particular, establishing rules expressly recognized by the contesting states”.
Treaties are defined as an international agreement concluded [made] between States in written form and governed by international law, whether embodied in a single instrument or in two or more related instruments and whatever its particular designation.
Also called pacts, accords, statutes, charters, covenants, conventions and constitutions.
The VCLT recognizes that a treaty may be embodied in two or more related instruments, such as exchange of diplomatic notes.
30
TREATIES
Amendments or changes and revisions to treaties are called protocols.
The idea that once a state agrees to a treaty it is bound by it and must follow it is based on the customary international law principle of pacta sunt servanda – agreements are binding and should be followed in good faith.
TREATIES
Treaties are divided into bilateral treaties (bipartite) and multilateral treaties (multipartite). This may lead to a distinction between contract treaties and law-making treaties.
Contract treaty usually takes place between few parties, hence creates law between its signatories.
Law-making treaty is concluded by many parties, so it creates law per se. It has a wider effect. It can lead to the creation of customary international law.
B. International custom
Customary international law derives from the practice of States.
In particular, if the practice is uniform, consistent and general and is coupled with the belief that the practice is obligatory (opinio juris).
Therefore, rules of customary international law arise from:
(1) consistent and widespread state practice
(2) a sense of legal obligation (opinio juris).
CUSTOM
Customs in the traditional international law was considered the most important source of international law.
Why Customs retreated to the second place and treaties come first?
Definition: a practice followed continuously over a considerable period of time, with a feeling that such practice is obligatory.
How custom differs from courtesy?
Custom has 2 elements:
A GENERAL PRACTICE.
ACCEPTED AS LAW OR OPINIO JURIS.
A state claiming the existence of customary international law must prove both elements.
CUSTOM
First: Material element: Practice
Quantity of practice:
The number of States participating is more important than the frequency or duration of the practice (however, not all States must accept the practice in the case of general custom)
Major inconsistencies in State practice prevent the creation of custom
To prove customary international law, any act or statement made by a State from which views about customary law can be inferred can be consulted, including:
diplomatic correspondence,
policy statements and press releases by states,
opinions of Ministry of Foreign Affairs (or other state government) legal advisors and
official rules and procedures adopted by national governments (such as military manuals)
National laws
National judgments
CUSTOM
Second: psychological element: Opinio Juris
State practice must be accompanied by opinio juris.
Opinio juris consists of statements by a state that certain conduct is permitted, required or forbidden by international law
A claim that conduct is permitted can be inferred from the mere existence of such conduct.
Claims that conduct is required or forbidden need to be stated expressly.
PERSISTENT OBJECTOR TO CUSTOM
The Persistent objector to custom:
Not all States have to consent for customary international law to be binding on them.
However, a customary international law will not be binding on a certain state if that state:
Objects frequently and strongly.
Objects before the practice becomes recognized as customary law.
If a state opposed a rule at the time of its formation, it will not be bound by it (Anglo- Norwegian fisheries case). The objection of a State does not prevent a practice from becoming a customary rule of law.
PERSISTENT OBJECTOR TO CUSTOM
Silence of a state to the establishment of a new customary international rule infer the acceptance of such state to that rule.
A new state is bound by rules which were well established before it became independent.
A State cannot object to a peremptory norm of international law (norms of Jus Cogens), except by a norm of similar character
North Sea Continental Shelf Cases (1969)
This case is about CUSTOMARY INTERNATIONAL LAW and its relationship with treaties
The Case was decided by the International Court of Justice.
Facts:
Germany and Denmark/Netherlands each argued that different rules should apply to the delimitation of the continental shelf (how the continental shelf should be divided amongst each state).
This was important given that all three States wanted access to the valuable oil deposits beneath the continental shelf.
Germany proposed that the continental shelf be divided equally, so that all three States receive an equal share.
North Sea Continental Shelf Cases (1969)
Netherlands and Denmark argued that the equidistance rule should apply because it is reflective of customary international law. This rule would mean that Germany would receive a very small portion of the continental shelf as compared to Netherlands and Denmark.
The Geneva Convention on the Continental Shelf (1958) existed at the time, and it set forth the equidistance rule, which both Netherlands and Denmark are States Parties. However, Germany is not a party to that treaty.
Therefore, this case would be decided based on custom.
North Sea Continental Shelf Cases (1969)
The Issue:
Which of the two rules should apply – the equal share proposed by Germany or the equidistance rule of Netherlands and Denmark?
Whether there was a rule of customary international law that the equidistance rule should apply?
Whether the Geneva Convention reflected customary rule and is therefore binding on Germany?
Court reasoning:
The Geneva Convention did not have enough parties to satisfy the state practice element. Even if it did, there should be proof that non-States parties are bound by the equidistance rule as well, which is virtually non-existent.
Nonetheless, it does not meet the element of opinio juris.
Acts done because of morality or based on tradition do not amount to opinio juris, which is a feeling that the act amounts to a legal obligation.
A treaty cannot create a new rule of custom, unless accompanied by state practice as well. Otherwise, it is the treaty that applies and NOT custom.
= No customary international law in this case.
LOCAL CUSTOM: The Asylum Case (1950)
This case is about Regional CUSTOMARY LAW.
The case was decided by the ICJ in Columbia v. Peru.
Facts:
Haya de la Torre was head of a rebel movement in Peru, which conducted an unsuccessful military rebellion in Peru on October 3,1948, and he was sought by Peruvian authorities for crimes committed directing that rebellion; he was charged with the crime of military rebellion.
He sought asylum in the Colombian Embassy in Peru. Colombia requested Peru to give Haya de la Torre safe conduct out of the country as its political refugee.
Peru refused, stating that Haya del la Torre had committed common crimes and was not entitled to the benefits of political asylum - claiming that his actions were criminal and not political.
The Asylum Case (1950)
Issues:
Is Haya de la Torre a political refugee properly granted asylum and should Peru allow him safe passage out of the country?
Can Colombia on its own decide that the actions are political and de la Torre should receive safe passage or must Peru get the right to have a say?
Whether a local custom existed in Latin America permitting one State to unilaterally grant political asylum?
The Asylum Case (1950)
Court’s Decision:
Colombia cannot determine Haya de la Torre's right to asylum
unilaterally (on its own); he is not entitled to asylum and not entitled to safe passage. There is no regional customary law which allows this.
Court's Reasoning:
Colombia claimed that regional customary law allow for the right of
Colombia to determine on its own Haya de la Torre's right to asylum.
The Court said that Columbia has relied on an alleged regional or local custom peculiar to Latin-American States. However, Colombia has not proved the existence, either regionally or locally of a constant and uniform practice of unilateral qualification as a right of the State of refuge and an obligation upon the territorial State.
= No local custom existed because of lack of evidence.
But note: Local custom could exist as between two States, as was decided by the ICJ in Rights of Passage over Indian Territory (1960).
LOCAL CUSTOM: Rights of Passage over Indian Territory Case (1960)
This case is about LOCAL CUSTOMARY LAW.
The case was decided by the ICJ.
Facts:
India used to be owned by Britain and Portugal.
When India was granted independence by Britain, Portugal remained (”Portuguese-India”).
Portugal claimed its right over Indian territory, which India interfered with.
LOCAL CUSTOM: Rights of Passage over Indian Territory Case (1960)
Issues:
Whether Portugal has a customary right over Indian territory?
Court’s Decision:
YES.
= Local custom exists.
India said that practice between only two States cannot form local custom, but the Court said that hundreds of years of practice based on mutual rights was sufficient for local custom to exist.
NOTE: However, Portuguese sovereignty over these territories is still subject to Indian control, since it is located within India’s territory.
NOTE: Portuguese India no longer exists today (war in 1961; surrender).
Relationship between Treaties and Customs
1) A treaty may expressly state customs, meaning that the treaty confirms the existence of customary norms/rules. This makes the rules stronger.
But the fact that a treaty incorporates a customary rule does not prevent the application of such a customary rule. The customary rule may apply differently than the treaty, or it may hold the state to the described conduct, where the treaty may not.
2) A treaty may consist of rules and principles which are reflected in the practice of states, but which are not recognized as custom before the treaty itself has been adopted.
3) A treaty may be constitutive, meaning that it formulates or makes new custom.
C. GENERAL PRINCIPLES OF LAW
This is the third source of international law.
General principles include principles of national law of countries or other principles of international law.
Traditionally considered to include such broad legal concepts as:
Pacta sunt servanda;
Good faith;
Estoppel;
Equity;
Proportionality and res judicata.
Fundamental concepts that are found in every municipal legal system.
GENERAL PRINCIPLES OF LAW
Researching “general principles of law” usually overlaps with the same sources as those for customary international law.
With respect to those general principles of law from domestic legal systems, they are often referred to and identified in national codes or judicial decisions, particularly those of a state’s highest court.
The laws and high court decisions of many countries are increasingly available on the internet.
General Principles of Law (2)
Examples of general principles of law:
Estoppel – a party that has silently or by it actions agreed to something, may not later change its position and deny it, if the other party relied on that agreement. Cameroon v. Nigeria ICJ 1998.
Pacta sunt servanda – obligation entered into are binding – now customary international law and expressed under VCLT Article 26.
Good faith - states must perform treaty obligations in good faith – now customary international law and also expressed under UN Charter Art. 2(2)
D1. JUDICIAL DECISIONS
The International Court of Justice is not bound by precedent (see Article 59 of the ICJ Statute).
However, its own decisions and the decisions of other courts and arbitral tribunals may be used by the Court as persuasive authority.
Which courts and arbitral tribunals are relevant for a particular legal issue will depend on the subject matter.
JUDICIAL DECISIONS
For example, on crimes against humanity or broader issues in international law, the ICJ itself or the international ad hoc tribunals (such as the ICTY and ICTR—see below) will be more useful.
Decisions of arbitral tribunals established under the International Centre for Settlement of Investment Disputes will be relevant for international investment law.
International COURT OF JUSTICE
Established in 1945 by the Charter of the United Nations and is the principal judicial organ of the United Nations.
Only states may submit legal disputes to the Court.
United Nations organs and other agencies may request advisory opinions on legal issues.
The Court’s decisions in contentious cases are binding upon the two state parties involved, but advisory opinions are nonbinding.
International COURT OF JUSTICE
The ICJ’s website (www.icj-cij.org) is comprehensive and generally easy to navigate.
On the left side is a navigation bar: “The Court” contains procedural and other information about the ICJ, and “Cases” gives you the option of narrowing your search to either contentious cases or advisory proceedings.
The cases are listed chronologically, with the most recent decisions (or pending cases) near the top.
Written pleadings and transcripts of oral hearings are sometimes available on the ICJ website and can be quite useful.
Judicial Decisions of National Courts:
Judicial decisions of national courts are not binding on the government of the state in their international relations. However, it reflects the opinion of the court with respect to the existence of a rule of international law or the meaning of such rule.
The repeated national judicial decisions that deals with a specific issue may reflect the existence of a general principle of law.
b. Judicial Decisions of International Courts:
Decisions of international courts plays a vital role in determining the existing rules of international law and their meaning.
Decisions of International Court of justice (ICJ) can influence either the establishment of a new rule or the cancellation of an existing rule, depending on the need of the international community.
Decisions of ICJ could provide a new interpretation for an obsolete rule of international, or even provide for its inapplicability due to change in circumstances.
In general, judicial decisions are deemed a guiding evidence for the existence of rules of international law.
2. Teachings of publicists in international law:
Teachings of publicists provide different interpretations for a specific rule of international law.
They can also point out the deficiencies in an existing rule of international law.
International courts can rely (as a subsidiary source) on writings of publicists to support their decisions or opinions.
D2. Teachings of publicists
International LAW COMMISSION
Another source of “teachings of publicists” is the work of the International Law Commission.
The ILC is composed of 34 members and was established by the UN GA in 1947 for the “promotion of the progressive development of international law and its codification”.
The ILC publishes draft articles accompanied by commentaries of what it considers to be rules of customary international law where there is state practice, precedent and doctrine.
Resolutions of international organizations
The General Assembly of the United Nations
For the most part, not binding (merely recommendations)
But General Assembly resolutions could give rise to international law through the development and identification of: treaties, general principles and customary law (the main sources of international law).
E.g., Nuclear Weapons Advisory Opinion, where General Assembly resolutions may evidence the current state of the law and provide guidance as to the meaning and interpretation of legal texts.
The Security Council of the United Nations
These decision are binding, but they do not create general international law.
CHAPTER III LAW OF TREATIES
The 1969 Vienna Convention on the Law of Treaties (VCLT)
The 1969 Vienna Convention on the Law of Treaties (VCLT) entered into force on in 1980.
VCLT applies ONLY to treaties between states, treaties which are the constituent instruments of international organizations, and internal treaties adopted within international organizations.
Some of VCLT provisions derived from customary international law, while others are not.
VCLT provisions derived from customary international law apply to treaties between ALL states whether they are parties to the convention or not.
VCLT provisions established by the convention are binding ONLY upon states parties.
Pacta Sunt Servanda is the fundamental principle of treaty law.
The VCLT defines a treaty in Article 2 as:
‘An international agreement concluded between States in written form and governed by international law, whether embodied in a single instrument or in two or more related instruments and whatever its particular designation’.
Treaties may be concluded between a minimum of two states (bilateral), or more than two states (multilateral).
Treaties can be called a treaty, agreements, conventions, pacts, accords, statutes, charters, covenants, or some other names.
Agreements between states determined to be governed by municipal (national) law, agreements between states and other subjects of international law, agreements between two or more subjects of international law, and oral agreements are valid international agreements, but VCLT does not apply to them.
MAKING TREATIES
Formalities (Representation/Full Powers)
Negotiation and consent (Adoption, Signature, Exchange of instruments, Ratification, Accession)
Formalities
International law leaves the power to make treaties –procedure, persons, format- to be determined by the domestic law of every state.
Nevertheless, international law requires that the persons concluding a treaty on behalf of a state to show evidence that they possess such a capacity by presenting an instrument called “full powers.”
Some persons are considered as possessing full power by virtue of their office. The ICJ noted in the case of Genocide Convention (Bosnia v. Serbia) that “According to international law, there is no doubt that every head of state is presumed to be able to act on behalf of the state in its international relations.”
An act of concluding a treaty by a person who cannot be considered as possessing full power will not have any legal effect, unless it is subsequently approved by the state concerned.
Case of Cameroon v. Nigeria
Land and Maritime Boundary between Cameroon and Nigeria, 2002 ICJ REP 303, Preliminary Objections judgment of 11 June 1998– Nigeria said that an agreement signed by heads of state in 1975 was not a binding treaty because it was never ratified by the Nigerian government as required by the country’s constitution. Nigeria said Cameroon knew or should have known that Nigeria’s head of state did not have authority to ratify the treaty on his own signature.
The ICJ did not agree and states that heads of state are presumed to have such authority, if they do not, that fact should be publicized. Ratification process is based on the domestic law of a state and it is the state’s responsibility to make sure it is followed, especially if it is not stated to the other contracting parties.
Consent
Once a treaty negotiated, agreed, and drafted by an authorized representatives a number of stages are then necessary before it becomes a binding legal obligation upon the parties involved.
The text of the agreement has to be adopted (authenticated.)
The text of the treaty may be adopted by signature or by other ways as well.
If the treaty is not subject to ratification, acceptance, or approval signature establishes consent to be bound.
If the treaty is subject to ratification, acceptance, or approval signature does not establish consent to be bound nor does it creates an obligation to ratify.
Signature is a formal mean reflects the signatories’ intention to forward the treaty to their governments for a decision of acceptance or rejection. Also, it creates an interim obligation of good faith to refrain from acts that contradict with the objectives and purposes of the treaty.
Exchange of instruments is a way to express consent of states to be bound by a treaty if the instruments declare that their exchange shall have that effect/ or if it is established that those states had agreed that the exchange of instruments should have that effect.
Ratification is also referred to as acceptance or approval of the treaty. Acceptance or approval – has the same effect as ratification.
Ratification mostly takes place through certain parliamentary process so that the rules regulating Ratification vary from country to country.
Ratification will express a state’s consent to be bound by a treaty:
If the treaty so provides.
If the negotiating states agreed that ratification should be required.
If the representative of the state has signed the treaty subject to ratification/OR if the intention of the state to sign the treaty subject to ratification appears from the full powers of its representative or expressed during negotiations.
Ratification of bilateral treaties usually done by exchanging instruments.
In the case of multilateral treaties the usual procedure is for one party to collect the ratifications of all states. In many instances, the Secretary-General of the UN acts as a depositary for ratifications.
Accession means a non-signatory state may becomes a party to a treaty after its entry into force.
RESERVATIONS
Unlike national law, international law allows a state to become a party to a treaty while opting out from the application of certain provisions.
Reservation is defined as a unilateral statement, whether phrased or named, made by a state when signing, ratifying, accepting, approving or acceding to a treaty, whereby it purports to exclude or to modify the legal effect of certain provisions of the treaty in their application to that state.
Reservations apply only with respect to multipartite treaties. A reservation in bipartite treaty means a refusal of the offer made by the other party which needs further negotiations.
Reservation differs from interpretative declaration. The Declaration is a statement by a state during the negotiation of a treaty or when signing or ratifying it, stating its interpretation of a provision of a treaty. However, states sometimes use interpretive declarations to make what amounts to a reservation.
Vienna Convention on the law of Treaties allows reservations except in the following cases:
The reservation is prohibited by treaty, ex: European Convention on Human Rights.
The treaty provides that only specified reservations may be made.
The reservation is incompatible with the object and purpose of the treaty incompatibility with the object and purpose of the treaty can relate either to substantive provisions of the treaty (Restrictions to the Death Penalty Case), or to the nature and spirit of the treaty
The treaty may provide a mechanism in deciding whether a provision is compatible or not the Convention on Racial Discrimination deems a reservation to be incompatible if at least two-third of contracting parties object to it.
Acceptance and Objection to Reservations
A reservation which is expressly approved in the terms of the treaty does not need any subsequent approval by other contracting parties unless such subsequent approval is required by the treaty.
If it is clear from the limited number of contracting parties and from the purposes and objectives of the treaty, that the application of all terms of the treaty is an essential requirement for all the parties to be bound by it, then a reservation must be accepted by all the parties to this treaty.
In case of a treaty that establishes an international organization, then a reservation must be accepted by the competent organ of the organization, unless otherwise provided in the terms of the treaty.
The effect of reservation, accepting of reservation, and objections to a reservation (The compatibility test):
If a state makes a reservation on some of the treaty provisions – reserving state- the possible three scenarios are:
In case the reservation is incompatible with purposes and objectives of the treaty such reservation cannot be made at all.
2. One or more contracting states object to the reservation as being incompatible with purposes and objectives of the treaty such objection will not prevent the reserving state from becoming a party to the treaty. The treaty will enter into force in the relation between the objecting and reserving state.
UNLESS the objecting state clearly expressed its intention to consider the reserving state as non-party to the treaty because of that reservation. Therefore, the treaty will not enter into force in the relation between the objecting and reserving state.
[ICJ judgment in Reservations to the Convention on Genocide Case.]
3. contracting states accept the reservation as being compatible with the object and purpose of the treaty The reserving states will be considered a party to the treaty vis-à-vis (in relation to) the states who accept the reservation
Note: The ICJ in the above case has adopted the test of compatibility, whereby there will be different relationships between different parties to the same agreement.
General rules:
- 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 contracting state has accepted the reservation.
- If a state does not object to a reservation within 12 months of having been informed of the reservation /or within 12 months of having expressed consent to be bound by the treaty (depending on which is later) the state will be deemed to have expressed its consent to be bound by the treaty and accept the reservation.
ENTRY INTO FORCE
A bilateral treaty enters into force in the date which is provided in the treaty, or as the contracting parties may agree.
A multipartite treaty normally comes into force after the receipt of a certain number of ratifications or accession.
Once the required number of ratifications has been received, the treaty will determine the exact date of its entry into force on the international level (Ex. Vienna convention provided that it will enter into force in the thirtieth day following the date of deposit of the thirty-fifth instrument of ratification or accession.)
VCLT and UN Charter provide that treaties, after their entry into force, should be transmitted to the UN Secretariat for registration and publication.
The APPLICATION OF TREATIES
“Provisional application of treaty” a treaty may, in whole or part, be provisionally applied pending its entry into force if the treaty so provides or the parties agreed to that effect.
“Non-Retroactivity of treaties” As a general rule, treaties do not have retroactive effect.
if treaties decide to have retroactive effect this shall be expressly stated in its provisions.
“Territorial Scope of Treaties” Treaty applies to all the territory of the contracting party unless otherwise provided.
“The application of the successive treaties relating to the same subject-matter” subject to article 103 of the UN Charter.
Successive Treaties
Successive treaties relate to more than one treaty relating to the same subject matter.
The rules are as follows:
When a treaty specifies that it is subject to, or that it is not considered to be incompatible with, an earlier or later treaty, the provisions of that other treaty prevail.
When all parties to an earlier treaty are parties to a later treaty but the earlier treaty is not terminated or suspended, the earlier treaty applies only to the extent that its provisions are compatible with those of the later treaty.
When the parties to the later treaty do not include all parties to the earlier one:
As between states parties to both treaties, the earlier treaty applies only to the extent that its provisions are compatible with those of the later treaty.
As between a state party to both treaties and a state party to only one of the treaties, the treaty to which both states are parties applies.
Third States
As a general rule a treaty does not create obligations or rights for third state without its consent.
There are exceptions to this rule:
Treaties establishing special international regime (territorial arrangement) ex: Aaland island.
Customary international law rule.
Article 2(6) of the UN which provides that: “the organization shall ensure that states which are not members of the United nations act in accordance with these principles so far as may be necessary for the maintenance of international peace and security” this article is now a part of customary international law.
in case a treaty produce obligations on a third state third state must accepts such obligations in writing.
in case a treaty creates rights to a third state the consent of the third state shall be presumed as long as there is no indication to the contrary, unless the treaty provides otherwise.
TREATY INTERPRETATION
Three main approaches in international law regarding treaty interpretation:
The objective approach interpretation in accordance with the ordinary use of the words of the treaty.
The subjective approach interpretation in accordance with the intention of the parties of the treaty.
The teleological approach interpretation in accordance with the treaty aims and objectives.
These three approaches are not exclusive.
Article 31(1) of Vienna Convention sets the general rule of interpretation and it reflects customary international law in this regard, as follows:
“A treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose”.
Note: Article 31 adopts combination of the three doctrines.
Context as mentioned in article 31 includes:
the text of the treaty, the preamble, any annexes.
Any agreement relating to the treaty which was made between all parties in connection to the conclusion of the treaty.
Any instrument which was made by one or more parties in connection with the conclusion of the treaty and was accepted by other parties as an instrument related to the treaty.
Any subsequent agreement between the parties regarding the interpretation of the treaty or the application of its provisions.
Any subsequent practice in the application of the treaty which establishes the agreement of the parties regarding its interpretation.
Any relevant rules of international law applicable in the relations between the parties.
If interpretation through the ordinary meaning of the words would lead to an ambiguous meaning, or would lead to manifestly unreasonable approach, therefor, supplementary means of interpretation shall be utilized by relying on the preparatory work of the treaty and the circumstances of its conclusion.
85
In short:
According to Vienna Convention, treaty interpretation must be done as the following:
First: General Rule (good faith, according to the treaty context, in the light of the treaty object and purpose)
Second: If interpretation through the ordinary meaning of the words would lead to unclear meaning or unreasonable results supplementary means
it includes the preparatory work of the treaty and the circumstances of its conclusion
context includes all the points in the last slide
A special meaning shall be given to a term if it is established that the parties so intended.
If a treaty authenticated in many languages, as often happens with multilateral agreements, and in the absence of agreement, and when a difference of meaning following the normal process of interpretation cannot be resolved the meaning which best reconciles the texts, having regard to the object and purpose of the treaty shall be adopted.
INVALIDITY, TERMINATION AND SUSPENSION OF TREATIES
General Provisions
GENERAL RULE: separation of treaty provisions is not acceptable. Meaning that a state may only withdraw from or suspend the operation of a treaty in respect of a treaty as a whole and not particular parts of it, UNLESS the treaty otherwise provides or the parties otherwise agree.
EXCEPTION: separation of treaty provisions is acceptable. Meaning that a state may invalidating, terminating, withdraw from or suspending the treaty with regard to particular clauses only. This be done if all of the following conditions were met:
1. the said clauses can be separated from the remainder of the treaty.
2. the acceptance of those clauses was not an essential basis of the consent of the other parties to be bound by the treaty.
3. if continued performance of the remainder of the treaty would not be unjust.
A ground for invalidity, termination, withdrawal or suspension may no longer be invoked by the state where, after becoming aware of facts, it expressly agreed that the treaty is valid or remains in force or by reason of its conduct may be deemed to have acquiesced in the validity of the treaty or its continuance in force.
Invalidity of Treaties
A state cannot invoke a violation of its municipal law -constitutional provisions regarding competence to conclude treaties- as an excuse to invalidate its consent to be bound by the treaty, UNLESS that violation was manifest and concerned a rule of its internal law of fundamental importance.
A state may not invoke a provision of its internal law as a justification for its failure to carry out an international obligation.
There are four grounds to challenge the validity of the treaty, as follows:
Error:
if the error relates to a fact or situation which was assumed by that state to exist at the time of conclusion of the treaty AND that error regarding the fact or situation formed an essential basis of the state’s consent to be bound by the treaty (mostly invoked in boundary questions.) in this case only a state can invoke on error to challenge the validity of treaty and to relieve itself from its treaty obligations.
A state which contributed by its behavior to an error OR should have known of a possible error from the circumstances in this case a state cannot invoke on error to challenge the validity of treaty and to relieve itself from its treaty obligations.
2. Fraud and Corruption:
if a state has been induced to conclude a treaty by the fraudulent conduct of another negotiating state. A treaty may be invalidated; the state can invoke on fraud to challenge the validity of treaty and to relieve itself from its treaty obligations.
if a state’s consent to a treaty has been obtained through the corruption of its representatives, directly or indirectly, by another negotiating state. A treaty may be invalidated. The state can invoke on corruption to challenge the validity of treaty and to relieve itself from its treaty obligations.
3. Coercion:
if a state’s consent has been obtained by the coercion of its representative through acts or threats directed against him. A treaty will be void
Coercion will lead to the invalidation of the treaty if it was through the threat or use of force, within the meaning of article 52 of Vienna Convention, as this article does not refer to political and economic coercion.
Coercion, as a ground to challenge the validity of a treaty, means the threat or use of force. DOES NOT MEAN THE POLITICAL PRESSURE OR ECONOMIC SANCTIONS
4. Jus Cogens: Peremptory norm of international law (EX. Prohibition against torture)
Any treaty at the time of its conclusion conflicts with a jus cogens shall be deemed void.
Consequences of invalidity:
- The provisions of a treaty which is established as invalid will have no legal force.
- If acts have been performed in reliance on such treaty, then:
Each party may require the other party to establish as far as possible the position which would have existed if the acts have not been performed restitution in kind
Acts performed in good faith before the invalidity of the treaty are not unlawful based only on such invalidity.
Note: This applies only to parties who acted in good faith, but not the parties who are responsible for the commission of fraud, corruption or coercion.
- In case a treaty is deemed void due to its conflict with a jus cogens, the parties shall take all required steps to eliminate as far as possible the consequences of any act performed in reliance on the offending provisions.
Termination of treaties
There are four grounds for the termination and suspension of treaties:
1. Termination by treaty provisions OR by consent:
A treaty may provide for termination in its terms.
If the treaty is silent, termination may not be effected unless it is apparent that the parties to the treaty intended to admit the possibility of termination or withdrawal, or if the right to termination may be implied from the nature of the treaty.
It is possible for the treaty to be for a fixed term ex: the treaty establishing the European Coal and Steal Community has a term of 50 years).
The treaty may allow the parties to withdraw after giving a certain period of notice.
If all the parties to a treaty concluded a later treaty relating to the same subject-matter, the earlier treaty will be deemed terminated.
NOTE1: Denunciation is for bilateral treaties and means the treaty will terminate.
Withdrawal is the word used for multilateral treaties and does not normally terminate it.
NOTE 2: A state will not be able to withdraw from a treaty transferring territory or establishing a boundary line. Also withdrawal is unlikely from treaties of peace or disarmament, and those establishing permanent regimes such as for the Suez Canal. Most human rights treaties do not provide for withdrawal. In some cases the rules of the treaty reflect or have become customary law and so withdrawal may make little or no legal difference – the rules will still apply
2- Material breach:
only material breach could lead to the termination of the treaty. Mere breach is not sufficient.
Vienna convention defines a material breach as one constituting either:
Repudiation of the treaty in a manner not allowed by the Vienna Convention.
Violation of a provision essential to the accomplishment of the object or purpose of the treaty.
In bilateral treaty material breach allows the innocent party to terminate the treaty OR suspend its operation in whole or in part.
In multilateral treaty material breach allows innocent parties through unanimous agreement to suspend its operation in whole or in part, OR to terminate it, where termination will take one of two forms:
Termination of the treaty in the relation between the innocent parties and the breaching party.
Termination of the treaty as between all the parties.
An exception to the above mentioned rule: the breach by one party of its obligation under a humanitarian or human rights convention does not entitle other parties to either terminate or suspend their own obligations arising from the convention ex: The 1949 Geneva Red Cross Conventions.
3- impossibility of performance:
Vienna Convention provides for the termination of treaty on the grounds of impossibility of performance, which could be invoked to face some rare occurrences, such as the emergence of an island, the drying up of a river, or the destruction of a dam which are essential for the performance of the treaty.
Impossibility of performance may be due to the fact that a party to the treaty ceases to exist as a state. (ex. United Arab Republic between 1985 and 1961 the union of Syria and Egypt)
If impossibility is temporary, it may be invoked only as a ground for suspending the treaty.
Impossibility of performance may not be invoked by a party if that party has been responsible for making performance impossible.
4- Fundamental change in circumstances:
The doctrine rebus sic stantibus ( which means things thus standing, is an exception to the general rule pacta sunt servanda), allows a state to terminate a treaty on the assumption that circumstances have seriously changed from the ones prevailing at the time of the treaty’s conclusion ex: Fisheries Case (Iceland disputed ICJ’s jurisdiction to hear the case on the grounds that there is a change in circumstances due to change in fishing techniques).
In order for change of circumstances to terminate the treaty, there must be a radical change to the extent of obligations to be performed, in a manner that will make performance something essentially different from that originally undertaken.
Rebus sic stantibus could only be invoked with respect to circumstance that was not contemplated (was not expected) (or unpredictable) at the time of conclusion of the treaty.
Rebus sic stantibus may not be invoked in respect of boundary settlement, or by a state which has caused the fundamental change.
Consequences of termination or suspension:
-Termination of the treaty will release the parties from any future obligations.
-Termination does not affect any rights and obligations of the parties that was created through the execution of the treaty prior to its termination.
- Suspension had the same legal effect as termination.
- During the period of the suspension, the parties must refrain from any acts that would obstruct the resumption of the operation of the treaty.
CHAPTER IV Subjects of International Law
Subjects of International Law
The following entities may be considered subjects of international law with international legal personality:
States
International organizations
Individuals
Corporations
Non-State armed groups
Non-governmental organizations
Who are the primary subjects of international law?
The original and derivative personality.
International Legal Personality
Legal Personality means that an entity is a subject of international law, and is capable to:
Acquire rights and bear duties
Has the capacity to bring international claims to defend its rights
Participate in international law creation (e.g., treaties and custom)
Enjoy the immunities attaching to international legal persons within national legal systems
Participate in international organizations
International Legal Personality
There are 3 elements that must be satisfied for a subject to be a legal person under international law:
(1) the subject can bear duties;
(2) the subject can acquire rights; and
(3) a subject possesses the capacity to enter into legal relations with other subjects.
The capacity to conduct affairs (relations) under international law includes:
the ability to enter into international contracts;
to sign and ratify treaties;
to sue or be sued before international courts and
to impose punishments against those who violate international law.
A. STATES AS SUBJECTS OF INTERNATIONAL LAW
States are the principal persons of international law. Why?
(sovereign, equal, independent)
The Montevideo Convention on Rights and Duties of States of 1933 sets out the criteria or conditions that an entity must meet before it can be regarded as a state in international law.
There are four elements that the entity must possess to be considered as a state:
(1) a permanent population;
(2) a defined territory;
(3) a government; and
(4) the capacity to enter into relations with other states.
1. Permanent Population
Permanent: It requires the existence of people who belong permanently to that state in terms of citizenship or nationality.
No minimum population is required: the number does not seem to matter so much.
Nationality is the standard that differentiates between nationals and foreigners.
2.Defined Territory
Territory means the land, waters and airspace over which the state exercises control.
Defined to an extent that allows the state to have sovereignty. Exclusive rights to perform the activities of a state.
No minimum geographical size is required. (Ex. Vatican City is an independent state that covers just over 100 acres and the pope is the head of the state.)
The territory need not to be precisely defined, even if there is a dispute about it.
Jurisdiction of the state on its territory applies to all inhabitants –persons or animals who lives in the place.
3.Effective Government
State must have an effective government that is independent of any other authority, and has legislative and administrative capacity.
Does the state ceases to exist if it remains without an effective government for a period of time? ex. During Civil war or occupation (Germany’s occupation of the European states during World War II.)
Circumstances sometimes require governments to operate in exile. Ex. In 1990, the Kuwait government fled to Saudi Arabia and operated from there during the Iraq war.
4.Capacity to Enter into International Relations
The capacity in itself is enough, even if there is no response from other international persons, i.e. recognition.
States may refuse to recognize the statehood of an entity if it was acquired in violation of international law. use of force (UN article 2(4))
Exception: Territory acquired through lawful use of force (self-defense) and separated from the aggressor e.g. Indian intervention in Bangladesh
International Organizations as Subjects of International Law
International Organizations
International organizations are defined as:
An organization established by a treaty or other instrument governed by international law and possessing its own international legal personality.
Different international organizations will have different international personality, depending on the manner of their creation and the role they are designed to fulfil within the international legal order.
International organizations must consist of States. Some international organizations may consist of a State and another international organization (e.g., Special Court for Sierra Leone and the Special Tribunal for Lebanon).
International Organizations
The major international multilateral organization is the United Nations.
There are also organizations within organizations (UNESCO within the UN), regional organizations (European Union, African Union, Organization of American States), economic organizations (World Trade Organization), single-issue organizations (International Maritime Organization), military organizations (NATO), and even two-party organizations (UK-Ireland Decommissioning Body).
International Organizations
In 1996, the ICJ decided that it did not have jurisdiction to decide on the request by the World Health Organization on whether the use of nuclear weapons by a State would be a breach of its international law obligations because it did not relate to the purposes of the WHO. However, the ICJ did have jurisdiction to proceed on a similar request by the General Assembly.
THE UNITED NATIONS
CHARTER OF THE UNITED NATIONS
The Charter of the United Nations sets out the governing principles and functions of the main bodies of the United Nations.
The duties of the General Assembly, Security Council, Economic and Social Council, Trusteeship Council, International Court of Justice and the Secretariat are listed, and the Charter is generally considered to be binding.
The Charter is available online at www.un.org/aboutun/charter/index.html
THE UN ORGANS
There are six main organs to the United Nations:
General Assembly
Security Council
Economic and Social Council
Trusteeship Council
International Court of Justice
Secretariat
GENERAL ASSEMBLY OF THE UN
General Assembly (1)
The General Assembly is composed of all the member states of the UN.
The General Assembly meets in regular annual sessions and may also meet in special sessions if required.
Functions and Powers:
The General Assembly is a global forum to exchange and debate of ideas. The functions of the GA includes the following:
Addressing any question within the scope of the charter and may make recommendations to the Security Council, except disputes that the Security Council is considering.
Considering matters concerning international peace and security and may make recommendations about such matters to the members, concerned states or the Security Council.
Supervising the Trusteeship Council. ( Trusteeship Council ended in 1994 with the independence of Palau)
Approving budgets and application for membership.
Participating in the selection of judges for the ICJ.
Appointing the Secretary-General of the UN. (The Secretary-General is the head of the Secretariat. Currently, he is António Guterres)
General Assembly (2)
Voting:
Each member of the GA has one vote.
Decisions on “important” questions are made by a two-third majority of members present and voting.
Important questions include the following:
Recommendations concerning international peace and security.
The election of non-permanent members to the Security Council. (Currently, Kuwait is a non-permanent member to the Security Council.)
The election of members of the Economic and Social Council and Trusteeship Council.
Admission of new members.
Suspension and expulsion of members.
Questions relating to the operation of the trusteeship system.
Questions relating to the budget.
Decisions on other questions are made by a majority of members present and voting, including determination of which questions other than the above mentioned require a two-third majority.
SECURITY COUNCIL
Security Council (1)
The Security Council has the primary responsibility for the maintenance of international peace and security.
Composition:
The security council consists of 15 member states: five permanent members and 10 non-permanent members.
The five permanent members are the People’s Republic of China, France, the Soviet Union (now Russia), the United Kingdom, and the United States.
The other ten member states are rotating members elected by the General Assembly for a term of two years, with due regard to “equitable geographical distribution”.
Each member of the council has one representative.
Functions and Powers:
Pacific settlement of disputes under chapter 6 of UN Charter. (The Security Council shall first encourage the parties to settle their dispute by peaceful means of their choice such as negotiation, enquiry, mediation, conciliation, arbitration, judicial settlement, resort to regional agencies or arrangements, or other peaceful means.)
Action with respect to threats to the peace, breach of the peace and acts of aggression under chapter 7 of UN Charter. (if the peaceful means were not useful to resolve the dispute The Security Council may take other measures like the embargo and economic sanctions or the use of military force.)
Security Council (2)
Decisions of the Security Council are legally binding upon members.
Voting:
Each member of the Security Council has one vote.
Decisions on “procedural matters” require an affirmative vote of any nine members.
Decisions on “substantive matters” require an affirmative vote of nine members, including the concurring vote of the permanent members. (In other words, no one of the five permanent members shall use the veto in order for a decision in substantive matter can be made)
A permanent member can use the right of veto to prevent a decision on a substantive matter from passing.
Refusal to vote or abstention by a permanent member from voting on a substantive matter is not treated as veto.
In short: the veto enables the 5 permanent members of the SC to prevent the adoption of any "substantive" decision, as well as to decide which issues fall under "substantive" title.
The International Court of Justice
According to article (92) of the Charter of the UN, the International Court of Justice (ICJ) is the principal judicial organ of the UN.
It is a continuation of the Permanent Court of International Justice (PCIJ) established under the Covenant of the League of Nations, with a continuing line of cases.
No distinction being made between the cases decided by the PCIJ and the cases decided by the ICJ.
ICJ is situated at the Hague, Netherlands.
Types of ICJ Jurisdiction
ICJ has a dual Jurisdiction:
Jurisdiction in contentious cases:
Settle legal disputes, in accordance with international law, that are submitted to it by States. (IO and Palestine cannot submit a dispute to the ICJ)
Advisory Jurisdiction:
it gives advisory opinions on legal questions at the request of the UN organs or the UN specialized agencies* that authorized by the General Assembly to make such a request. (States cannot submit a request for an advisory opinion to the ICJ)
* like: FAO, WHO, ILO, UNESCO…
- Those questions can only refer to legal questions arising within the scope of their activities.
- Advisory opinions given by the International Court of Justice are not binding.
INDIVIDUALS AS PARTIAL SUBJECTS OF INTERNATIONAL LAW
Historically, individuals were not subjects of international law.
However, the emergence of human rights law and individual criminal responsibility have extended the scope of international law beyond its traditional areas and to bestow individuals with both rights and duties under international law.
Individuals can be held liable for their acts before international tribunals and subject to rules of international law.
They therefore possess some form of international legal personality.
Ex Parte Pinochet, UK House of Lords, 2000
FACTS:
Pinochet was ex-head of state of Chile.
He was accused of various violations of human rights of both Chilean and foreign nationals, including the crime of torture.
A Spanish court issued an arrest warrant in respect of alleged acts against Spanish nationals.
While visiting London, Pinochet was arrested on an extradition warrant pending extradition to Spain.
ISSUE:
Whether Pinochet, as head of state, enjoyed immunity from UK courts in respect of acts done while in office.
OTHER INTERNATIONAL PERSONS
Other international persons include non-governmental organizations (NGOs) and transnational corporations, and also movements such as the International Red Cross and Red Crescent Movement.
These groups have some measure of international personality. The precise measure will depend on the acquiescence of, or recognition by, States.
Rebel groups may also be subject to obligations, particularly those arising under international humanitarian law.
Recognition in International Law
Questions of Statehood arise in the following events:
break-up of an existing state into a number of states
cases in which states have merged
secession by part of a territory of an existing state
in national courts, for purposes of determining the right to sue or immunity from suit
when parties seek to become parties to treaties open only to states
Is there a duty to recognize the entity as a State in such cases?
Recognition in International Law
Government recognition may be either de facto or de jure.
De Facto recognition is where the home state recognizes the existence of the entity but with concerns about its legitimacy.
De Jure recognition is where the home State accepts that the entity exists as of right.
In either system, the act of recognition may then have consequences within the national legal system.
Tinoco Arbitration (U.K. v. Costa Rica)
FACTS:
In 1917, Frederico Tinoco came to power in Costa Rica after a coup.
His government concluded certain contracts with British corporations.
After Tinoco’s retirement in 1919, the old constitution was restored, and a Law of Nullities was passed annulling the contracts made during Tinoco’s regime.
The United Kingdom made claims in respect of the injuries to its nationals caused by these annulments.
ISSUE:
What is the status of Tinoco’s regime in international law?
Tinoco Arbitration (U.K. v. Costa Rica)
HELD:
Costa Rica argued that the Tinoco government cannot be considered a de facto government because it was not established and maintained in accord with the constitution of Costa Rica.
Costa Rica’s view is rejected. A government does become a de facto government, where it establishes and maintains a peaceful administration, with the acquiescence of the people for a substantial period of time.
Costa Rica also argued that the United Kingdom did not recognize the Tinoco government and is now estopped from urging claims of individuals dependent upon the contracts of the Tinoco government.
Costa Rica’s view is rejected. The United Kingdom can change its position in this regard later on.
Recognition in National Law
It is important to know whether an entity has international personality on the national level as well.
National recognition of a State is important because this determines whether it has immunity from suit in national courts (e.g., UK’s recognition of the Soviet government concerning the confiscation of imported wood, 1921).
National recognition of a government as de facto or de jure is important where there has been a change in regime.
National recognition of international organizations is important to understand whether that organization is a legal person in that State.
CHAPTER V STATE RESPONSIBILITY
OBJECTIVES
1. WHAT IS STATE RESPONSIBILITY?
2. ARSIWA;
3. WHAT IS AN INTERNATIONAL WRONGFUL ACT?
4. CIRCUMSTANCES PRECLUDING WRONGFULNESS;
5. CONSEQUENCES OF A BREACH;
6. DIPLOMATIC PROTECTION.
1. WHAT IS STATE RESPONSIBILITY?
DEFINITION AND CONCEPT
Article 1. Responsibility of a State for its internationally wrongful acts
Every internationally wrongful act of a State entails the international responsibility of that State.
DEFINITION AND CONCEPT
State responsibility arises from the violation by a State (or other international legal person) of an international obligation.
That obligation can be one of customary international law or arising from a treaty.
The violation must be conduct attribution to a State.
The enforcement of this responsibility is generally undertaken by a State either on its own behalf or on behalf of its injured nationals.
2. ARSIWA
The 2001 International Law Commission (ILC) Articles on State Responsibility is the key instrument in this field despite the fact that it is not a treaty.
State responsibility requires an existing obligation, a breach of this obligation, and attribution of the breach to a State.
The liability of the State is engaged by both acts and omissions. These may be committed by government officials as well as by non-government agents if the act or omission may otherwise be attributed to a State.
Responsibility gives rise to reparation claims by the injured State. These may take the form of restitution, compensation, and just satisfaction.
Some articles, though not others, reflect customary international law.
3. WHAT IS AN INTERNATIONAL WRONGFUL ACT
Article 2. Elements of an internationally wrongful act of a State
There is an internationally wrongful act of a State when conduct consisting of an action or omission:
(a) is attributable to the State under international law; and
(b) constitutes a breach of an international obligation of the State.
ARTICLE 3. CHARACTERIZATION OF AN ACT OF A STATE AS INTERNATIONALLY WRONGFUL
The characterization of an act of a State as internationally wrongful is governed by international law. Such characterization is not affected by the characterization of the same act as lawful by internal law.
ATTribution
Attribution
To find attribution, one of the articles of ARSIWA must be present.
Article 4: Conduct of organs of a State
Article 5: Conduct of persons or entities exercising elements of governmental authority
Article 6: Conduct of organs placed at the disposal of a State by another State
Article 7: Excess of authority or contravention of instructions
Attribution
Article 8: Conduct directed or controlled by a State
Article 9: Conduct carried out in absence or default of the official authorities
Article 10: Conduct of an insurrectional or other movement
Article 11: Conduct acknowledged and adopted by a State as its own
ATTRIBUTION
Article 4. Conduct of organs of a State
1. The conduct of any State organ shall be considered an act of that State under international law, whether the organ exercises legislative, executive, judicial or any other functions, whatever position it holds in the organization of the State, and whatever its character as an organ of the central Government or of a territorial unit of the State.
2. An organ includes any person or entity which has that status in accordance with the internal law of the State.
Article 5. Conduct of persons or entities exercising elements of governmental authority
The conduct of a person or entity which is not an organ of the State under article but which is empowered by the law of that State to exercise elements of the governmental authority shall be considered an act of the State under international law, provided the person or entity is acting in that capacity in the particular instance.
Article 7. Excess of authority or contravention of instructions
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.
Article 10. Conduct of an insurrectional or other movement
1. The conduct of an insurrectional movement which becomes the new Government of a State shall be considered an act of that State under international law.
2. The conduct of a movement, insurrectional or other, which succeeds in establishing a new State in part of the territory of a pre-existing State or in a territory under its administration shall be considered an act of the new State under international law.
3. This article is without prejudice to the attribution to a State of any conduct, however related to that of the movement concerned, which is to be considered an act of that State by virtue of articles to 9.
Article 11. Conduct acknowledged and adopted by a State as its own
Article 11 provides for the attribution to a State of conduct that was not or may not have been attributable to it at the time of commission, but which is subsequently acknowledged and adopted by the State as its own.
2. In many cases, the conduct which is acknowledged and adopted by a State will be that of private persons or entities.
3. The conduct of a person or group of persons not acting on behalf of the State is not an act of the State under international law. Thus, purely private conduct cannot be attributed to a State, UNLESS the State later acknowledges and adopts the conduct as its own.
CAIRE CLAIM (FRANCE V. MEXICO, 1929)
This case was decided by the French-Mexican Claims Commission.
It concerns acts of State officials.
Facts:
Caire, who was French, was killed in Mexico during a revolution by Mexican soldiers after refusing to give them money.
Issue:
What was the responsibility of Mexico for actions of individual military personnel, acting independently, without orders or against the wishes of their commanding officers?
CAIRE CLAIM (FRANCE V. MEXICO, 1929)
Held:
Under Article 4, the conduct of any State organ, whether de facto or de jure, will be attributed to the State.
Under Article 7, the conduct of any State organ will be an act of the State if the person acts in that capacity, even if the person exceeds his authority or contravenes instructions.
Therefore, the actions of the perpetrators in this case are attributable to the State, even if they are to be regarded as having acted outside their competence and even if their superior officers issued a counter-order. These two officers acted in their capacity of officers and used the means placed at their disposition by virtue of that capacity.
UNITED STATES v. IRAN (1980) (Tehran Hostages)
This case was decided by the International Court of Justice.
It concerns acts of private persons.
Facts:
A group of Iranian citizens occupied the United States embassy in Tehran and took the Embassy staff as hostages.
Issue:
Is the act of private individuals acting on their own behalf attributable to the State?
UNITED STATES v. IRAN (1980) (Tehran Hostages)
Held:
Private individuals acting on their own behalf are not agents of the State and, therefore, their acts are not attributable to the State.
However, numerous Iranian authorities, including religious, judicial, executive, police and broadcasting authorities, made subsequent expressions of approval of the take-over of the Embassy. This gave rise to State responsibility. It is at this moment that the actions of the private individuals, under Article 11, became attributable to the State.
The State may also be held responsible for failure to prevent or to bring to an end the conduct in question.
BREACH
BREACH OF AN INTERNATIONAL OBLIGATION
Article 12. Existence of a breach of an international obligation
There is a breach of an international obligation by a State when an act of that State is not in conformity with what is required of it by that obligation, regardless of its origin or character.
BREACH OF AN INTERNATIONAL OBLIGATION
It is not enough to just find attribution.
The conduct in question must also be wrongful.
Conduct proscribed by an international obligation may involve an act or an omission, or both.
It may involve the passage of legislation or even a threat of action, whether or not the threat is carried out.
There is a breach when the act in question does not conform with what is required by the obligation.
This may be established by a rule of custom, by treaty, or by a general principle.
What is an 'internationally wrongful conduct'?
a) An international wrongful conduct is an action or omission which is in breach of a rule of international criminal law
b) An international wrongful conduct is every breach of an international obligation of the State, whether attributable to it or not
c) An internationally wrongful conduct consists of an action or omission attributable to the State, which constitutes a breach of an international obligation of the State
d) An internationally wrongful conduct is the conduct that cannot be excused on grounds of necessity, force majeure etc.
4. Circumstances precluding wrongfulness
Circumstances Precluding Wrongfulness
There are six circumstances precluding wrongfulness of conduct that would otherwise not be in conformity with the international obligations of the State concerned:
Consent
Self-Defense
Countermeasures
Force Majeure
Distress
Necessity
Article 20. CONSENT
Valid consent by a State to the commission of a given act by another State precludes the wrongfulness of that act in relation to the former State to the extent that the act remains within the limits of that consent.
ARTICLE 21. SELF-DEFENCE
The wrongfulness of an act of a State is precluded if the act constitutes a lawful measure of self-defence taken in conformity with the Charter of the United Nations.
Article 22. COUNTERMEASURES in respect of an internationally wrongful act
The wrongfulness of an act of a State not in conformity with an international obligation towards another State is precluded if and to the extent that the act constitutes a countermeasure taken against the latter State.
WHEN ARE COUNTERMEASURES ILLEGAL?
a) Countermeasures are illegal when inter alia are disproportionate or in violation of a peremptory norm of international law (e.g. the use of force, human rights)
b) Countermeasures are illegal when they are taken in the course of an armed conflict
c) Countermeasures are illegal when they violate bilateral treaties
d) Countermeasures are illegal when the responsible State does not consent to them
Article 23. FORCE MAJEURE
1. The wrongfulness of an act of a State not in conformity with an international obligation of that State is precluded if the act is due to force majeure, that is the occurrence of an irresistible force or of an unforeseen event, beyond the control of the State, making it materially impossible in the circumstances to perform the obligation.
Article 24. DISTRESS
1. The wrongfulness of an act of a State not in conformity with an international obligation of that State is precluded if the author of the act in question has no other reasonable way, in a situation of distress, of saving the author’s life or the lives of other persons entrusted to the author’s care.
2. Paragraph 1 does not apply if:
(a) the situation of distress is due, either alone or in combination with other factors, to the conduct of the State invoking it; or
(b) the act in question is likely to create a comparable or greater peril.
ARTICLE 25. NECESSITY
1. Necessity may not be invoked unless the act:
(a) is the only way for the State to safeguard an essential interest against a grave and imminent peril; and
(b) does not seriously impair an essential interest of the State or States towards which the obligation exists, or of the international community as a whole.
2. In any case, necessity may not be invoked by a State as a ground for precluding wrongfulness if:
(a) the international obligation in question excludes the possibility of invoking necessity; or
(b) the State has contributed to the situation of necessity.
When a State may lawfully invoke necessity?
a) Necessity may be invoked by a State when its organ had not other reasonable way of saving his life
b) Necessity may be invoked by a State only in cases of environmental disasters
c) Necessity may be invoked by a State when it acts under the pressure of an irresistible force or an unforeseen event
d) Necessity may be invoked by a State in the exceptional cases where the only way it can safeguard an essential interest threatened by a grave and imminent peril is, for the time being, to avoid performing some other international obligation of lesser weight or urgency
ARTICLE 26. COMPLIANCE WITH PEREMPTORY NORMS
Nothing in this chapter precludes the wrongfulness of any act of a State which is not in conformity with an obligation arising under a peremptory norm of general international law.
5. CONSEQUENCES OF A BREACH
CONSEQUENCES OF A BREACH
Cessation and Non-Repetition:
The State responsible for the internationally wrongful act is under an obligation:
To cease that act, if it is continuing;
To offer appropriate assurances and guarantees of non-repetition, if circumstances so require.
Reparation:
The responsible State is under an obligation to make full reparation for the injury caused by the internationally wrongful act.
Injury includes any damage, whether material or moral, caused by the internationally wrongful act of a State.
REPARATION
When a state causes an injury to another state, the responsible state is liable to make full reparation to the injured state. Chorzow Factory Case of PCIJ 1928“Reparation must, so far as possible, wipe out all the consequences of the illegal act and re-establish the situation which would, in all probability, have existed if that act had not been committed.”
ARTICLE 34. FORMS OF REPARATION
Full reparation for the injury caused by the internationally wrongful act shall take the form of:
restitution,
compensation and
satisfaction,
either singly or in combination, in accordance with the provisions of this chapter.
1. RESTITUTION:
A State responsible for an internationally wrongful act is under an obligation to make restitution, that is, to re-establish the situation which existed before the wrongful act was committed, provided and to the extent that restitution:
(a) is not materially impossible;
(b) does not involve a burden out of all proportion to the benefit deriving from restitution instead of compensation.
2. COMPENSATION:
1. The State responsible for an internationally wrongful act is under an obligation to compensate for the damage caused thereby, insofar as such damage is not made good by restitution.
2. The compensation shall cover any financially assessable damage including loss of profits insofar as it is established.
3. SATISFACTION:
The State responsible for an internationally wrongful act is under an obligation to give satisfaction for the injury caused by that act insofar as it cannot be made good by restitution or compensation.
2. Satisfaction may consist in an acknowledgement of the breach, an expression of regret, a formal apology or another appropriate modality.
3. Satisfaction shall not be out of proportion to the injury and may not take a form humiliating to the responsible State..
WHAT FORMS MAY THE REPARATION TAKE?
a) Reparation may take only the form of pecuniary compensation, including the interest
b) Reparation denotes only the physical restitution of the wrongful act
c) Reparation includes restitution, compensation, and satisfaction, either alone or alongside other forms of reparation
d) The form of reparation is a matter for the responsible State to decide
5. Diplomatic protection
WHAT IS DIPLOMATIC PROTECTION?
DIPLOMATIC PROTECTION consists of the invocation by a State, through diplomatic action or other means of peaceful settlement, of the responsibility of another State for an injury caused by an internationally wrongful act of that State to a natural or legal person that is a national of the former State with a view to the implementation of such responsibility.
Therefore, diplomatic protection is a way for foreigners to seek redress from the responsible State for an internationally wrongful act attributable to the State.
The Right to Diplomatic Protection
States are not under an obligation to exercise diplomatic protection nor to pay any reparation (including compensation) received by it to the national actually injured.
Diplomatic protection remains the prerogative of the State to be exercised at its discretion.
Requirements for Exercising Diplomatic Protection
A State’s right to bring an action under diplomatic protection against another State depends on three factors:
(1) The nationality of the individual harmed,
(2) Whether local remedies have been exhausted, and
(3) There is a waiver of responsibility for the injury in question.
Requirements for exercising diplomatic Protection
First: Nationality:
A state may only initiate a claim against another state on behalf of one of its nationals.
International law does not provide any definition of nationality as it is considered an exclusive matter of domestic law, as the state is free to determine who are to be deemed its nationals.
A states right to afford diplomatic protection may be challenged on the grounds that the link between it and its alleged nationals is weak and not genuine; i.e. in absence of such a link state will not be able to initiate an international claim. This is also called the test of real and effective nationality, which is important in the case of dual nationality.
Absence of nationality (statelessness) means that a state which inflicts injury on a stateless person will not be internationally responsible and no other state is competent to intervene on his behalf.
Question arises when the injured person is a national of both the plaintiff and defendant states. Also when the defendant state is claiming that the injured person is really a national of a third different state. In the later case, this is not usually allowed by the courts.
Examples: Italy v. Peru: Italy brought action against Peru on behalf of Canevaro, a Peruvian by birth and an Italian by naturalization. Peru objected on the basis that Canevaro was a Peruvian not an Italian. In fact, he had stood for election in the Peruvian Senate and represented Peru as a consul to the Netherlands. Court said Peru has the right to consider him as a Peruvian and to deny his status as an Italian claimant.
In Italy v. USA, US brought a case against Italy on behalf of its national, Flegenheimer, who had US and German nationality. Italy objected to US diplomatic protection claiming F was more strongly German. Effective nationality theory did not apply, because Italy had raised it as to a third country, Germany not involved in the case.
Diplomatic protection of corporate entities:
Companies can be given diplomatic protection by their state of nationality just like human beings. Companies have legal personality and are treated as separate and juristic entities.
General rule is that a company is a national of the state in which it is registered or incorporated. State practice seems to require the state of incorporation to also show evidence of control over the company. In addition, the nationality of most shareholders is a consideration.
In Enrique Cortes and Company: by registering the corporation in the UK, with the majority of shareholder in Columbia could not be protected by the UK against Colombia
In Belgium v. Spain:
A Company was incorporated in Canada to supply electricity to Spain, but had majority shareholders in Belgium.
Spain declared the company bankrupt, and Belgium brought an action against Spain on behalf of its nationals in the ICJ on the basis that the injury to the company harmed the shareholders.
Spain objected saying the injury was to the company and not its shareholders, and that Belgium lacked the legal basis to exercise diplomatic protection against Spain.
The ICJ agreed – it said that the company for 50 years had been incorporated in Canada, had held meetings there, and paid taxes there, and it is Canada who should protect the company not Belgium.
Indirect injury to the shareholders does not entitle them to protection by their state of nationality. Shareholders and their state of nationality may have an independent action only if the company has legally lost all ability to make a claim on their behalf.
ICJ rule that indirect injury to shareholders does not entitle them to diplomatic protection by their state. But there are two exceptions:
1) where the company has ceased to exist or to operate altogether, or
2) where its national state lacks capacity to take action by itself.
Second: Exhaustion of local remedies:
In order for the state to exercise diplomatic protection, local remedies must be exhausted.
The reason for that is:
To allow the state concerned to afford redress within its legal system for the alleged wrong.
To reduce the number of international claims.
To respect the sovereignty of state.
Individual must seek all administrative, arbitral and judicial remedies that’s to say, all effective remedies that affect the final outcome of the case need to be exhausted.
However, there is no need to exhaust local remedies if it is evident that there is no justice to exhaust or that all attempts to seek justice will be impeded.
The exhaustion of local remedies is not required when the alleged wrong is a direct injury by one state against another state.
The requirement of exhaustion of local remedies may be waived by a treaty (e.g., as was done by the US and Iran when establishing the Iran-United States Claims Tribunal).
