Public International Law - Detailed Course Notes with Case Briefs, Study notes of International Public Law

Download Public International Law - Detailed Course Notes with Case Briefs and more Study notes International Public Law in PDF only on Docsity! Public International Law Niharika Palep [21 JGLS] 1 PUBLIC INTERNATIONAL LAW WEEK 2: SOURCES OF INTERNATIONAL LAW – I ............................................................................. 4 I. INTERNATIONAL CONVENTIONS – TREATIES ........................................................................................... 4 Introduction: Definition, authority, procedure, consent ............................................................................ 4 General framework of treaties ................................................................................................................... 5 Authority to Make Treaties ........................................................................................................................ 5 Expression of State Consent....................................................................................................................... 6 Reservations ............................................................................................................................................... 6 Declarations ............................................................................................................................................... 8 Invalidation of treaties ............................................................................................................................... 9 Termination .............................................................................................................................................. 12 WEEK 3: SOURCES OF INTERNATIONAL LAW – II ......................................................................... 14 II. CUSTOMARY INTERNATIONAL LAW (CIL) ............................................................................................ 14 State Practice ........................................................................................................................................... 14 Opinio Juris Sive Necessitatis .................................................................................................................. 15 Example of formation of a custom ........................................................................................................... 16 Acquiescence – Prominent mode of emergence of a new rule of CIL ..................................................... 16 Persistent Objector .................................................................................................................................. 16 Subsequent Objector ................................................................................................................................ 16 WEEK 4: SOURCES OF INTERNATIONAL LAW – III ........................................................................ 18 III. GENERAL PRINCIPLES OF LAW ............................................................................................................... 18 IV. SUBSIDIARY SOURCES OF IL .................................................................................................................. 18 JUS COGENS .................................................................................................................................................. 19 ERGA OMNES ................................................................................................................................................ 19 WEEK 5: INTERNATIONAL LEGAL PERSONALITY – I ................................................................... 21 I. SUBJECTS OF INTERNATIONAL LAW ...................................................................................................... 21 II. STATES AS TRADITIONAL INTERNATIONAL LEGAL PERSONS ................................................................ 21 III. STATEHOOD .......................................................................................................................................... 21 IV. STATE SOVEREIGNTY ............................................................................................................................ 23 V. STATE RECOGNITION ............................................................................................................................ 23 VI. RECOGNITION OF GOVERNMENT ........................................................................................................... 24 WEEKS 7-8: SELF-DETERMINATION .................................................................................................... 25 I. SELF DETERMINATION .......................................................................................................................... 25 Statutory-basis ......................................................................................................................................... 25 Legal precedents ...................................................................................................................................... 25 II. TYPES OF SELF-DETERMINATION – INTERNAL SELF-DETERMINATION & EXTERNAL SELF- DETERMINATION ........................................................................................................................................... 26 III. SECESSION OF QUEBEC - RE SECESSION OF QUEBEC CASE (1998) ........................................................ 27 IV. APPROACHES TO THE RIGHT TO SELF-DETERMINATION ......................................................................... 27 WEEK 9: SETTLEMENT OF INTERNATIONAL DISPUTES - INTERNATIONAL COURT OF JUSTICE ......................................................................................................................................................... 29 Public International Law Niharika Palep [21 JGLS] 2 ICJ’S POSITION IN THE UN ............................................................................................................................ 29 FUNCTIONS OF THE ICJ ................................................................................................................................. 29 Advisory Opinion of the ICJ .................................................................................................................... 29 Contentious Case ..................................................................................................................................... 30 CONSENT TO JURISDICTION ........................................................................................................................... 30 i. Special Agreement/compromise ....................................................................................................... 30 ii. Treaties and conventions/Compromissory clause ........................................................................... 30 iii. Optional Clause Declarations ......................................................................................................... 30 iv. Forum Porogatum/Tacit Consent (Rule 38.5) ................................................................................. 32 v. ICJ Statute A.36(6):The Court itself decides any questions as to its jurisdiction ........................... 32 OTHER ASPECTS (PROCEDURAL AND SUBSTANTIVE) OF CASES BEFORE THE ICJ ............................................ 32 WEEK 10 – USE OF FORCE & LAW OF ARMED CONFLICT ........................................................... 35 LAW BEFORE 1945 ........................................................................................................................................ 35 EXCEPTIONS TO THE PROHIBITION TO THE USE OF FORCE ............................................................................. 35 i. Chapter VII Mandate ....................................................................................................................... 36 ii. Self Defence ..................................................................................................................................... 38 iii. Humanitarian Intervention .............................................................................................................. 40 WEEK 11 – STATE RESPONSIBILITY .................................................................................................... 41 GENERAL PRINCIPLES ................................................................................................................................... 41 ACTS GIVING RISE TO STATE RESPONSIBILITY .............................................................................................. 41 Conduct .................................................................................................................................................... 41 Attribution ................................................................................................................................................ 42 CIRCUMSTANCES PRECLUDING WRONGFULNESS ........................................................................................... 44 i. Defenses – Articles 20, 21, 45 .......................................................................................................... 44 ii. Countermeasures – Article 22 ......................................................................................................... 44 iii. Force Majeure – Article 23.............................................................................................................. 44 iv. Distress – Article 24......................................................................................................................... 44 v. Necessity – Article 25....................................................................................................................... 45 INVOCATION OF RESPONSIBILITY .................................................................................................................. 45 CONSEQUENCES OF INTERNATIONALLY WRONGFUL ACTS ............................................................................. 46 RAINBOW WARRIOR’S CASE ......................................................................................................................... 46 WEEK 12 – STATE JURISDICTION ......................................................................................................... 47 JURISDICTION – DEFINITION AND IMPORTANCE ............................................................................................ 47 FORMS OF JURISDICTION IN INTERNATIONAL LAW........................................................................................ 47 i. Jurisdiction to prescribe .................................................................................................................. 47 ii. Jurisdiction to enforce/execute ........................................................................................................ 48 iii. Jurisdiction to adjudicate ................................................................................................................ 48 GROUNDS FOR ESTABLISHING JURISDICTION OVER CRIMINAL OFFENSES ..................................................... 48 i. Territorial principle ......................................................................................................................... 48 ii. Nationality Principle ........................................................................................................................ 49 iii. Protective principle .......................................................................................................................... 49 iv. Universal jurisdiction ...................................................................................................................... 50 WEEK 14 - CRITIQUES OF INTERNATIONAL LAW .......................................................................... 52 DOCTRINAL AND INSTITUTIONAL DEVELOPMENTS: ...................................................................................... 52 Public International Law Niharika Palep [21 JGLS] 5 - the term ‘treaty’ is non-specific – it does not matter exactly what an agreement is called Types of treaties 1) treaties of a general nature – widely accepted, binds every nation that accepts them 2) treaties with a specific nature – mostly between a small number of states and on a limited topic but may still provide evidence of customary rules General framework of treaties Substantive provisions in treaties outline the main purposes and legally binding agreements that sponsoring states have committed to uphold, such as Article 6.1 of the International Covenant on Civil and Political Rights which safeguards the inherent right to life. Operational provisions, on the other hand, detail the mechanisms through which these substantive provisions are implemented, including processes like entry into force, treaty registration, and the management of amendments, facilitating legal transactions between states Dispute Resolution Provisions – Provide for the mechanism for resolving disputes arising under the treaty. This may include interpretation of treaty, especially if one of the contracting state’s practice (prior to codification) is not in conformity with the treaty obligation ▪ In cases where contracting states under the Montreal Convention of 1971 are unable to resolve disputes through negotiation or arbitration, any party involved may refer the dispute to the International Court of Justice (ICJ) for resolution. ▪ Article 7 of the Montreal Convention of 1971 requires negotiators representing states to demonstrate accreditation or "full powers," except for certain obvious representatives like heads of states, while ▪ Article 8 allows for retrospective authorization of representatives' acts by states, as exemplified by the Stresa Agreement of 1951 on cheese naming conventions. Authority to Make Treaties o The power to make treaties is derived from a country's municipal laws. For example, Article 253 of the Indian Constitution read with Entry 13 & 14 of the Union List in Schedule VII grants Parliament the power to implement treaties, even on subjects within state competence. o Maganbhai Ishwarbhai Patel v. Union of India – Parliament alone has the power to make laws to implement treaties, overriding state legislature competence. o Under IL, States have the capacity to make/conclude treaties (Article 6 of the VCLT) o A person representing the State with appropriate ‘full powers’ (Article 7 of VCLT) o Certain officials, like Heads of State, Government, Foreign Ministers, heads of diplomatic missions, and representatives to international conferences or organizations, need not produce full powers. o ICJ in Somalia v. Kenya – state representatives may authorize other officials to adopt a treaty or express consent on behalf of the state. o Procedure for Making Treaties: No prescribed form or procedure exists for making treaties, but they must comply with rules set out in the VCLT. ▪ Article 6 VCLT – every state's capacity to conclude treaties. ▪ Article 7 VCLT – representatives with full powers can conclude treaties on behalf of states. ▪ Article 8 VCLT – If a treaty is concluded by someone without proper authority as per Article 7 VCLT, Article 8 states that the act has no legal effect unless subsequently confirmed by the state. Public International Law Niharika Palep [21 JGLS] 6 ▪ Article 9 VCLT – covers the adoption of treaty text, requiring consent from all participating states. At international conferences, adoption requires a two-thirds majority of states present and voting, unless they decide by the same majority to apply a different rule. Expression of State Consent o How do states express their consent? As per Art. 11, the consent of a State may be expressed by – (a) signature (b) exchange of instruments constituting a treaty (c) ratification (d) acceptance (e) approval (f) accession (g) any other means if so agreed. o Consent by signature means that the State representatives have agreed upon an acceptable text, subject pending acceptance, or rejection by the Government, as per Art. 12 VCLT. However, a signed treaty (pending ratification, acceptance, or approval), a state must refrain from acts which would default the object and purpose of the treaty, as per Art. 18 VCLT. o Consent by ratification is expressed when the treaty provides for it, or it is otherwise established that the negotiating States were agreed that ratification is required, or the representative of the State has signed the treaty subject to ratification, or the intention of the State appears from the full powers of its representatives or was expressed during the negotiation. Definitive signature – Article 12 – is used by a state where the state expresses its consent to be bound by a treaty by signing the treaty without the need for ratification, acceptance or approval. ▪ A State may definitively sign a treaty only when the treaty so permits. ▪ On occasions when the treaty is not required to be ratified, accepted or approved, then “definitive signature” establishes the consent to be legally bound by the treaty. ▪ Generally used for routine and less politicized issues – Maroua Declaration (Cameroon v Nigeria) Article 13 permits states to express their consent to be bound by a treaty through the exchange of letters or notes, typically involving two separate documents signed by representatives of each party – Qatar v. Bahrain case where international agreements were formed through the exchange of letters and minutes of meetings. Article 2(1)(b), 14(1), and 16 – Ratification, acceptance, and approval are international acts by which a state fully consents to be bound by a treaty, with bilateral treaties typically involving an exchange of instruments following ratification. Article 15 – Accession is the act through which a state accepts the opportunity to become a party to a treaty already negotiated and signed by other states. Article 24 – Entry into force of a treaty is often determined by the parties involved, with no specific provision, typically occurring when all negotiating parties have legally consented to be bound by the treaty's provisions. Bilateral treaties usually enter into force through the exchange of ratification instruments or notifications, while multilateral treaties may specify a certain date, minimum number of ratifications, or other conditions for entry into force. Treaties are based on consent, and the ratification of a treaty represents a partial relinquishment of sovereignty by consent. Reservations, Understandings, and Declarations (RUDs) are attachments made by a ratifying or acceding state to international treaties that clarify or alter the legal effect of treaty provisions. Reservations - Under VCLT, reservations are covered under Section 2 (Articles 19 – 23) Public International Law Niharika Palep [21 JGLS] 7 - Art. 2(1)(d) VCLT, reservation means a unilateral statement (however phrased) made by a State when signing, ratifying, accepting, 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 their State. - A State is entitled to make reservations against parts of the treaty it has a contention with, provided certain principles are met. - Benefits: more States willing to ratify the treaty, allows flexibility to States, and encourages harmony between states with differing social, economic, and political systems - Challenges: reservations could jeopardize the whole exercise, defeat the purpose, and give rise to complicated interrelationships - Reservations do not apply to bilateral treaties, but only to multilateral treaties. - Countries may either omit some aspects of the treaty or apply a different understanding to them (declarations). - Reservations are prohibited if explicitly stated by the treaty – Article 120 of the Rome Statute and Article 18 of the Montreal Protocol on Ozone Layer. - Reservations must not be against the object and purpose of the treaty. - Some treaties permit only specific reservations – Article 12 – Convention on the Continental Shelf Why are reservations important? Reservations are important because they enable a state to participate in a treaty despite finding certain provisions unacceptable. Given that multilateral treaties result from meticulous negotiations involving many concessions and compromises, reservations allow states to adjust their obligations under the treaty to conform to their domestic law, which might be necessary for political, cultural, or social reasons. Allowing for reservations enhances inclusivity, permitting states to be party to the treaty while being exempted from specific provisions, essentially modifying certain aspects of the treaty to accommodate their unique circumstances. Formulation Stage: Article 19 states that a state may formulate a reservation when signing, ratifying, accepting, approving, or acceding to a treaty unless: a) The reservation is prohibited by the treaty. b) The treaty allows only specified reservations, excluding the reservation in question. c) The reservation is incompatible with the object and purpose of the treaty. Process of Formulating and Accepting Reservations First Step: Formulation (Article 19 VCLT): A reservation must be formulated at a particular time, respecting substantial validity criteria. Second Step: Acceptance (Article 20 VCLT): The formulated reservation must be accepted by other states. Third Step: Effects Determination (Article 21 VCLT): After formulation and acceptance, the effects of the reservation and its acceptance (or objections) can be determined. Effect of Reservations and Objections: o Old Rule (Article 20.2 VCLT): Reservations required the consent of all other parties to be applicable. o New/Alternate Rules: ICJ's Reservation to the Genocide Convention Opinion (1950): A reservation is acceptable if it does not violate the basic object and purpose of the treaty, even if other states object. The treaty does not apply between a state that believes a reservation is against the object and purpose of the treaty and the reserving state. Only states that have accepted the reservation will be bound by it. o If State A makes a reservation and State B does not accept it but still wants State A as a party, the treaty will be enforced between A and B as if the reserved part is excluded. Violation of another party’s accepted reservation is a violation of the treaty only against the reserving state. Public International Law Niharika Palep [21 JGLS] 10 - Article 46 – Provisions of internal law regarding competence to conclude treaties – A state's consent to a treaty is not invalidated by internal law violations unless the violation is manifest and concerns a fundamental rule. - Article 47 – Specific restrictions on authority to express the consent of a State – A representative's consent is not invalidated by failing to observe specific restrictions unless these restrictions were notified to other negotiating states beforehand. - Article 48 – Error – A state can invalidate its consent if a treaty error concerns an essential fact or situation, unless the state contributed to the error or should have been aware of it. - Article 49 – Fraud – A state can invalidate its consent if it was induced to conclude a treaty by the fraudulent conduct of another state. - Article 50 – Corruption of a representative of a State – A state's consent is invalid if procured through the corruption of its representative by another negotiating state. Article 46 and 47 – Cameroon v Nigeria – regarding the validity of consent given by the Nigerian head of state to the Maroua Declaration, Nigeria contended that despite the head of state's signature and ratification of the treaty, constitutional laws did not authorize him to do so. The ICJ ruled that unless properly publicized, there was no evident limitation on the head of state's powers, and negotiating states like Cameroon were not legally obligated to be familiar with Nigeria's internal laws in the case. Article 48 - Temple Preah Vihear case – The ICJ ruled that only errors in the form of fact or situation during a treaty's conclusion could invalidate a state's consent to the treaty, provided they related to an essential basis of its consent. The ICJ rejected Thailand's claim of error in a map depicting the temple's location, arguing that Thailand should have known about any potential error due to the involvement of technical experts in examining the map, thus attributing responsibility to Thailand rather than Cambodia for any inaccuracies. Article 49 and 50 1) The German-Czechoslovak Nationality Treaty1938: Occupation of Sudetenland by Coercion 2) Agreement for the restoration of President Aristide's Government in a Treaty between USA and Haiti (Governors Island Agreement), while use of force was imminent from the US and other. 2) Absolute Grounds for Invalidity (Articles 51 – 53) - Renders the treaty devoid of legal effect between all parties. - Makes the treaty void ab initio, releasing all parties from their legal obligations under the treaty. - Article 51: Coercion of a Representative of a State – A State's consent to be bound by a treaty, if procured by coercion of its representative through acts or threats, is without any legal effect. - Article 52: Coercion of a State by the Threat or Use of Force – A treaty is void if its conclusion was procured by the threat or use of force, in violation of the principles of international law embodied in the Charter of the United Nations. - Article 53: Treaties Conflicting with a Peremptory Norm of General International Law (Jus Cogens) – A treaty is void if, at the time of its conclusion, it conflicts with a peremptory norm of general international law. A peremptory norm (jus cogens) is a norm accepted and recognized by the international community of States as a whole, from which no derogation is permitted and which can only be modified by a subsequent norm of general international law of the same character. Public International Law Niharika Palep [21 JGLS] 11 Human Right Committee GC 24 on Reservations Reasons for General Comment on Reservations: - The Committee identified significant issues with the number and nature of reservations made by states to the International Covenant on Civil and Political Rights (ICCPR). - Of the 127 State parties, 46 had entered 150 reservations, impacting the Covenant's obligations. - Reservations vary: some exclude specific rights, others ensure domestic legal provisions' supremacy, and some limit the Committee's competence. - Such reservations can undermine the Covenant’s implementation and weaken respect for State obligations.\While the ICCPR does not prohibit reservations, international law, particularly the Vienna Convention on the Law of Treaties (VCLT), guides their acceptability based on compatibility with the treaty's object and purpose. Substantive Provisions Protected from Reservations: - Reservations incompatible with peremptory norms (jus cogens) are unacceptable. - Human rights treaties benefit individuals within State jurisdictions, not just interstate obligations. - Provisions in the ICCPR reflecting customary international law or peremptory norms cannot be reserved. - Examples of non-reservable rights include prohibitions against slavery, torture, cruel treatment, arbitrary deprivation of life, arbitrary detention, and rights related to freedom of thought, conscience, religion, and fair trial. Object and Purpose Test for Human Rights Treaties: - The Committee considers if reservations to non-derogable provisions (those that cannot be suspended even in emergencies) align with the Covenant's object and purpose. - Certain rights remain non-derogable because their suspension is irrelevant or impossible, such as freedom of conscience. - Non-derogable rights often ensure the rule of law; examples include prohibitions on torture and arbitrary deprivation of life. - States must heavily justify reservations to non-derogable provisions to avoid violating the Covenant’s object and purpose. Reservations to the Optional Protocols: - Reservations to obligations in the Optional Protocols (which allow individual complaints to the Committee) do not negate the State’s substantive obligations under the ICCPR. - Such reservations cannot circumvent the Committee’s competence to review compliance with the ICCPR. - Reservations that preclude the Committee’s review under the Optional Protocol contradict its object and purpose. Special Character of Human Rights Treaties: - The VCLT governs reservations but is seen as inadequate for human rights treaties due to their unique nature. - Human rights treaties aim to protect individual rights, not merely exchange obligations between states. - State objections to reservations often lack legal impact on the treaty’s applicability between states. - The Committee questions the effect of such objections and traditional rules on human rights treaties. Legally Valid Reservations: - Reservations must be specific and transparent, clearly indicating which human rights obligations are not undertaken. - General reservations are not permissible; they must reference specific provisions of the Covenant and precisely define their scope. Public International Law Niharika Palep [21 JGLS] 12 Committee’s Mandate and Severability of Impermissible Reservations: - The Human Rights Committee has the authority to apply the object and purpose test to reservations. - If a reservation is impermissible, it is severable, meaning the treaty remains fully operative without the reservation. Discussion on VCLT’s Appropriateness for Human Rights Treaties: - The Committee critiques the VCLT’s applicability to human rights treaties, arguing traditional rules are inadequate due to the treaties' special nature and individual rights focus. - Cases like Kennedy v Trinidad & Tobago, Belilos v Switzerland, and the ICJ’s Reservation to the Genocide Convention Opinion (1950) support the view that human rights treaties require a distinct approach to reservations. Invalidity of Treaties and Grounds for Challenging: - Treaties include 'exit' provisions and default VCLT provisions allowing unilateral or collective termination of commitments and obligations. - These terms define the conditions under which states can withdraw from treaty obligations. Termination Art. 70(1)(a) – After termination, a treaty no longer generates any further legal effect, and the parties are released from any obligation further to perform the treaty. Art. 70(1)(b) – However, termination does not affect any rights, obligations or the legal situation of the parties created through the treaty prior to the termination. Art. 72 – Suspension of a treaty - After suspension, a treaty is not definitively put to an end; rather, the parties are released from any mutual obligations resulting from the treaty during the period of suspension. However, suspension does not affect the legal relations between the parties established by the treaty. Be it termination or suspension, the modalities of both are governed by A.54 to 59 VCLT. It can either be – 1) By operation of treaty i.e., termination (Art. 54) and suspension (Art. 57) 2) On other grounds (Articles 60 – 62) a. Material Breach b. Supervening impossibility of performance c. Fundamental change of circumstances a. Material Breach – Article 60 - If one party is in material breach of a treaty obligation, the other parties may terminate or at least suspend their obligations in relation to that state. - This stems from the principle inadimplenti non est adimplendum i.e., one has no need to respect their obligation if the counter party has not respected their own. - Namibia Advisory Opinion – one of the fundamental principles governing the int. relationship thus established is that a party which disowns or does not fulfil its own obligations cannot be recognised as retaining the rights which it claims to derive from the relationship. - Gabčíkovo-Nagymaros – the ICJ was of the view that only a “material breach” of the treaty itself by a State which is party to that treaty will entitle the other party to rely on it as ground for terminating the treaty. Public International Law Niharika Palep [21 JGLS] 15 North Sea Continental Shelf Cases – State practice, ‘including that of states whose interests are specially affected’, had to be ‘both extensive and virtually uniform in the sense of the provision invoked’. This was held to be indispensable to the formation of a new rule of CIL. It should be a settled practice that is carried out in such a way as to be evidence of a belief that practice is rendered obligatory by the existence of rule of law requiring it. Nicaragua v. USA - Small degree of inconsistency is not fatal to formation of custom This Court held that it was not necessary that the practice in question had to be ‘in absolutely rigorous conformity’ with the purported customary rule. The Court continued with saying that “In order to deduce the existence of customary rules, the Court deems it sufficient that the conduct of states should, in general, be consistent with such rules, and that instances of state conduct inconsistent with a given rule should generally have been treated as breaches of that rule, not as indications of the recognition of a new rule.” Despite the widespread condemnation of torture by states, some still engage in its practice while publicly denouncing it. Nevertheless, the collective condemnation contributes to the establishment of the prohibition against torture as a customary rule in international law. General practice: Judgements of national courts, legislation of the concerned state, claims advanced by the Country before foreign courts, statements made by the state, all will be proof of general practice as per the ICJ in Jurisdictional Immunities of the State (Germany v Italy). Opinio Juris Sive Necessitatis - Practice accepted by law – states engaged in practice must regard their practice as legally obligatory - The psychological element on part of the State as to its opinion on legal status of a rule. - An act in itself is insufficient to determine the existence of an int. custom and only if such an act (or abstention) is based on a State being conscious of a duty to act (or abstain), can we point towards the formation of a custom. - Essentially to support practice by an assertion or an acknowledgement of a legal right or obligation and not merely a belief - Opinio juris can be discerned from military manuals, diplomatic guidelines, pleadings before int. courts, correspondence from one State to another or a private action, position taken at UNGA meetings during resolutions etc. SS Lotus, France v. Turkey - The Court held that it is insufficient to show that States have, in practice, abstained from instituting criminal proceedings; for only if such abstention were based on their being conscious of having a duty to abstain would it be possible to speak of an int. custom. - Despite the fact that states may have a practice that is widespread, it is important to prove that they did so (the negative act of not prosecuting) because they (states) thought it was legally obligatory on them to do so - If the absence of prosecution by states was done merely out of practice and not out of the belief that it was a legal obligation – then opinio juris is not established What is the relevance of CIL? What are the reasons for its continuing vitality? CIL possesses more jurisprudential power than treaty law as it can bind all States. The reach of CIL can also extend to the States that have not (yet) ratified a treaty. When a new state is created, there is a deemed acceptance of the entire corpus of CIL by them. Generally, States also do not possess the unilateral right to withdraw from CIL. Sometimes customs may even form faster than treaties. Public International Law Niharika Palep [21 JGLS] 16 Example of formation of a custom In 1945, the U.S. President Truman made a unilateral proclamation with respect to the policy of the US w.r.t the Natural Resources of the Subsoil and Seabed of the Continental Shelf which declared U.S.’s national jurisdiction upon the continental shelf along U.S. coastline. Soon after, the continental shelf concept came to be recognised rapidly through emulation and acquiescence, mostly due to post-war economic needs and technological advancements. Other states started formulating similar claims to the adjacent continental shelf and other states, if affected by this proclamation of a right, had the option of either reacting either by objecting to the assertion or by refraining from objecting. Acquiescence – Prominent mode of emergence of a new rule of CIL Generally, a State cannot be expected to consent or object to every possible new instance of relevant practice. During the development of the CIL rule, the state needs to declare its disagreement. As per the ICJ in Gulf of Maine case (United States/Canada) held that acquiescence is equivalent to tacit recognition manifested by unilateral conduct which the other party may interpret as consent. Claim & Response (Prof. Myers McDougle): Continuous claim and response, whether express or implicit, initiate the formation of CIL as states either imitate the practice or acquiesce to it. Articulation v Act (Prof. D’Amato): CIL forms through the articulation of principles, either accompanying initial acts or found in treaties and resolutions, with consistent subsequent acts crystallizing these principles into binding legal customs. When can a new rule of CIL not bind a particular State? Usually, a new general rule of CIL binds all States. However, there are some exceptions which are: Persistent Objector - Principle 15 – If whilst a practice is developing into a rule of general law, a State persistently and openly dissents from the rule, it will not be bound by it - This allows a State to exempt itself from the application of a new CIL rule if it can be demonstrated that it had objected persistently, and explicitly, during the period when the norm was emerging. Anglo-Norwegian Fisheries Case (UK v Norway) - Although the 10-mile rule has been adopted by certain States, other States have adopted a different limit (thereby not giving it CIL status). - Even if it were as such, the 10-mile rule would appear to be inapplicable as against Norway inasmuch as she has always opposed any attempt to apply it to the Norwegian coat. - When effected state(s) object to the emergence of a new rule, this new rule will not become operational. However, if a small number of states object to a new rule, these states will remain immune to the implementation of these rules on them. Subsequent Objector - A State that has adhered to an original rule, but objects to proposed changes to that rule, cannot be bound by said rule. There are certain limitations on both the Persistent Objector and the Subsequent Objector principles. 1. CIL rules will be binding on new states and existing states that are newcomers to a particular activity (i.e., a new State cannot be a subsequent objector). 2. The rule does not apply to peremptory norm (jus cogens). Public International Law Niharika Palep [21 JGLS] 17 Regional customs: possible for a region or two states to be bound by custom that is peculiar to the region but does not bind states outside the region Right of Passage over Indian Territory (Portugal v India) ▪ held that it is difficult to see why the number of States between which a local custom may be established on the basis of long practice must be larger than two. ▪ The Court sees no reason why long continued practice between 2 States accepted by them as regulating their relations should not form basis of mutual rights and obligations between the two States. ▪ It must however be a constant, uniform practice having continued over a period unaffected by the change of regime – thus the Court can be satisfied that the practice was accepted as law by the Parties. Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion ICJ 1996 - The ICJ addressed the arguments regarding the customary legality of nuclear weapons. - Advocates for their illegality cited the non-use since 1945 as indicative of an opinio juris, while proponents argued that non-use is due to deterrence practices rather than legal obligations. - The ICJ noted the lack of consensus on whether non-use reflects opinio juris and recognizes that General - Assembly resolutions, despite expressing deep concern, do not conclusively establish a customary rule against nuclear weapons due to significant opposition and abstentions. - Resolution 1653 (1961) first proclaimed the illegality of nuclear weapons, but its impact is limited by the context of general customary law. - The persistent call for a nuclear ban reflects a significant desire for disarmament, yet the development of a customary prohibition is complicated by ongoing deterrence practices. Public International Law Niharika Palep [21 JGLS] 20 obligations can be from outlawing acts of aggression and genocide, from principles and rules concerning basic human rights such as protection from slavery and racism etc. Erga omnes obligations: These obligations in contemporary international law include: a) Outlawing acts of aggression and genocide. b) Upholding principles and rules concerning basic human rights, such as protection from slavery and racial discrimination. Some rights of protection are part of general international law (Reservations to the Convention on the Prevention and Punishment of the Crime of Genocide, Advisory Opinion). Other rights are conferred by international instruments with universal or quasi-universal character. East Timor Case The erga omnes character of a norm and the rule of consent to jurisdiction are two different things. Whatever the nature of obligations invoked, the ICJ cannot rule on the lawfulness of the conduct of a State when its judgement would imply an evaluation of the lawfulness of the conduct of another State which is not a party to the case. Where this is so, the Court cannot act, even if the right in question isa right erga omnes. Belgium v Senegal – Obligation to Prosecute or Extradite The Court held that Belgium, as a State party to the Convention against Torture, has standing to invoke the responsibility of Senegal for alleged breaches of its obligations u/Art. 6(2) and Art. 7(1) of the Convention. There is no need for the Court to pronounce on whether Belgium has a special interest with respect to Senegal’s compliance with provisions of the Convention as has the same is obligations erga omnes. Erga omnes partes obligations 1) Application of the Convention on the Prevention and Punishment of the Crime of Genocide (The Gambia v. Myanmar) 2) Application of the Convention on the Prevention and Punishment of the Crime of Genocide in the Gaza Strip (South Africa v. Israel Public International Law Niharika Palep [21 JGLS] 21 Week 5: International Legal Personality – I i. Subjects of International Law International Legal Person: persons and entities capable of possessing rights and duties on the international plane – includes the capacity to make treaties, and bring claims + enjoyment of certain rights, privileges and immunities o includes not just sovereign states but also individuals, organizations, national liberation/independence movements o IOs (UN, WTO, NATO), MNCs, NGO (Amnesty International), Individuals (a religious leader, a leader of a terrorist organization, a businessman), terrorist groups, a set of people having a bearing on international relations Legal personality: an entity who is capable of exercising international rights and obligations o under IL a limited number of subjects, mostly dominated by States o The possession of such ‘legal personality’ endows the legal subject with ‘legal capacity’ with respect to rights, powers, and obligations within that system Legal capacity: ability to appear before international courts/tribunals in order to enforce rights under international law o to be subject to obligations under IL + make binding international agreements + enjoy some or all immunities ii. States as Traditional International Legal Persons Traditional Positivist Doctrine Contemporary IL o IL governs relations between States, it is binding upon States o it normally imposes duties or confers rights upon States o States are the sole subjects of IL o Individuals are the ‘objects’ of IL o Jeremy Bentham – International law had only States as its subjects o States are primarily, but not exclusively the subjects of IL o Non-states can also possess rights, powers, and duties o Eg: IOs, regional organizations, MNCs and individuals o States and IOs (active subjects) o MNCs, individuals (passive subjects) iii. Statehood What is a State? As per Article 1 of the Montevideo Convention – a person of IL that possess – a. Permanent population - No minimum number of persons is required to full fill this criteria o Existence of permanent population does not relate to the nationality of the population o Nationality depends on Statehood, Statehood does not depend on nationality o The population need not inhabit the territory constantly b. Defined territory – Does not necessarily include precise delimitation of the boundaries of that territory – one cannot contemplate a state as a kind of disembodied spirit, there must be some portion of earth’s surface which its people inhabit o Even if there is a dispute about the exact demarcation of territory, as long as there is a consistent band of territory which is undeniably controlled by the government of the alleged State o Occupation of state does not mean it ceases to be a state – Kuwait remained a state after Iraqi occupation, even though the population and territory changed o No requirement for the contiguity of the territory of the State – it can be separated by land or water Public International Law Niharika Palep [21 JGLS] 22 c. Government - evidence of the establishment of an effective government, that is independent of any other authority and which enjoys legislative and administrative competence – should be in a position to uphold international legal duties and obligations – IL is agnostic to the form of internal governance d. Capacity to enter into relations – to engage in relations with other countries o depends on the reaction and political inclination of other states o unlike the first three criteria which are objective/factual in nature, this criteria relies on recognition Article 3 Montevideo Convention – An entity may have the capacity to enter foreign relations and treaties, however in case other states refuse, the entity in question is denied the opportunity to demonstrate this ability to enter into foreign relations and treaties o eg. Southern Rhodesia: unilateral independence in 1965, possessed three other elements, however other states refused to have any relation The state is commonly defined as a community which consists of a territory and population subject to an organized political authority” and “characterized by sovereignty – Opinion of the Yugoslav Arbitration Commission An entity is not a state unless it has competence, within its own constitutional system, to conduct international relational with other states, as well as the political, technical relations with other states, as well as the political, technical and financial capabilities to do so. An entity which has the capacity to conduct foreign capabilities does not cease to be a state because it voluntarily turns over to another sate some of or all of its foreign relations – US Restatement of (Third) ss 201 (e) o eg. Lichtenstein - Switzerland, EU member states that’ve transferred power EU When does the controversy of Statehood arise? When countries break-up, Secession movements (eg. Finland, Bangladesh, Kosovo – must show substantial autonomy – formal and real), Exercise of foreign control on affairs of state, States created by union, Statehood claims by federal parts of a recognized state, Claims by communities that have special status by virtue of treaty or CIL (HK and Macau) o Generally, when statehood is awarded, it is rarely pulled back despite the lack of strong government o The EC Arbitration Commission concluded that due to insufficient participation and representation in federal organs, Yugoslavia was undergoing dissolution as a federal state As a Continuing State, the international legal personality remains of the original State, no need to re-apply for membership in Int. Org., nor re-accede to treaties. Public debts would also continue. – Eg. Break-up of USSR, Partition of British India and Pakistan e. Additional criteria for statehood – US Secretary of State Baker (Foreign Minister) 1991 + the new Guidelines issued by Western European Foreign ministers in Europe A. Self-determination – Determining the future of the country peacefully and democratically B. Respect for all borders – changes only via peaceful means – uti possidetis C. Democracy, rule of law, elections D. Primacy to human rights, including minorities and ethnic national groups E. Respect for international law F. Commitment to disarmament and nuclear non-proliferation G. Commitment to arbitration regarding questions of succession Public International Law Niharika Palep [21 JGLS] 25 Weeks 7-8: Self-determination i. Self Determination Statutory-basis o UN Charter Art. 1(2) + Art. 55 + Art.73 o Res. 1514 (XV) – All people have the right to self-determination – right to freely determine, without external interference, their political status and freely pursue their economic, social and cultural development - The subjection of peoples to alien subjugation, domination and exploitation constitutes a denial of fundamental human rights, is contrary to the Charter of the United Nations and is an impediment to the promotion of world peace and co-operation. - Para 7 – caveat – A limitation to achieving self-determination is that all countries must strictly follow the United Nations Charter, the Universal Declaration of Human Rights, and related declarations. They must treat each other as equals, not interfere in each other's internal matters, and respect each nation's sovereignty and territorial boundaries. o Res. 2625 (XXV) – Every State has the duty to promote, through joint and separate action, realisation of the principle of equal rights and self-determination of people o General principles: 1. States must respect the political will and economic, social, and cultural rights of people, in accordance with the UN Charter. 2. States must promote friendship and cooperation among nations and work towards the swift end of colonialism based on the people's will. 3. States must refrain from actions that deprive people of their right to self-determination, freedom, and independence, and those fighting for these rights are entitled to support under the UN Charter. o Res. 1541, Res. 1803 o right of SD is based on the idea of freedom from subjugation – by the inclusion in ICCPR, Article 1 + ICESCR, Article 1, it has been elevated to the level of a claimable right Legal precedents o Namibia (S.W. Africa) Advisory Opinion, 1971, p 16, at p 31, para 52 + reiterated in Western Sahara Advisory Opinion, p 12, at p 31, para 54 to 59 – identical definition as Res.1514 o East Timor (Portugal v Australia), p 90, at p 102, para 29 – the right of peoples to self-determination has erga omnes character (rights or obligations are owed toward all) and is irreproachable – one of the essential principles of contemporary international law - The Court views the erga omnes nature of a norm (obligations owed to the international community) and the rule of consent to jurisdiction as distinct concepts. - Regardless of the type of obligations involved, the Court cannot judge a State's actions if doing so requires assessing the actions of another State that is not a party to the case. - Therefore, the Court cannot take action in such scenarios, even if the rights involved are erga omnes. o Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion, para 88 – erga omnes obligation – as enshrined in the UN Charter – the principle of SD is applicable to all territories – the ultimate object of the sacred trust was the self determination o R2SD as a jus cogens norm – one of the essential principles of contemporary international law which gives rise to the international community as a whole to permit and respect its exercise Public International Law Niharika Palep [21 JGLS] 26 o Re Secession of Quebec (1998) 161 DLR (4th) – Court held – the existence of R2SD is now so widely recognised in international conventions that the principle has acquired a status beyond “convention” and is considered a general principle of international law o Chagos Advisory Opinion, ICJ Rep., 2019, para 152 - The Court considers that, although resolution 1514 (XV) is formally a recommendation, it has a declaratory character with regard to the right to self- determination as a customary norm, in view of its content and the conditions of its adoption. peoples: a group with a common identity and a link to a specific territory who should be entitled to decide their political fate in a democratic fashion o subjective element: a commonly held belief, by all members of a group, that they constitute a unit and that they share a common history, language, culture, heritage, and political aspirations - examination of the extent to which individuals within the group self-consciously perceive themselves collectively as a distinct “peoples" - explicit expression of shared values and a common goal for its future. + if they can form a political entity, and demonstrate political cohesiveness o objective element: an assessment to examine whether the members share/possess the above- mentioned commonalities + have a claim to a particular delineated territory - identifying elements of a group, i.e. race, religion, language, history, culture. + territorial integrity of the area this group is claiming ii. Types of self-determination – Internal self-determination & External self-determination These two forms vary considerably and range from o full independence or secession (external SD) to o less extreme measures in a State (e.g. greater autonomy, respect for minority rights, political participation (internal SD)) 1. Internal self-determination: right of the people of a State to govern themselves without outside interference - Generally, considered less intrusive because it respects territorial integrity of existing states - Most prevalent modes: autonomy, protectorates, trusteeships, free association, provincial self- government - Eg: Aaland Islands, Quebec (Canada), Catalonia (Spain), Scotland (UK) o Protectorates: a dependent territory exercising local autonomy and some independence while remaining a territorial unit of a greater sovereign State - Eg: Guam, Mariana Islands, Puerto Rico, US Virgin Islands (dependent territories of the US) - Kosovo was a UN Protectorate since 1999 (only de jure since 2008 independence) o Free association: situations where peoples, through an expression of their own free will, choose to subject themselves to the sovereignty of another larger State - More common form of political self-expression for microstates which may lack capacity (economic, territorial) to exist independently - Eg: Cook Islands, Niue (associated with NZ), Nauru (national defence to Australia), Andorra (national defence to Spain and France) o Recent IL developments include Serbia's near-recognition of Kosovo, Amritpal Singh Sandhu's advocacy for Khalistan self-determination, and India removing security barriers outside the UK High Commission. Public International Law Niharika Palep [21 JGLS] 27 Belgrade-Pristina Dialogue: EU Proposal - Agreement on the path to normalisation between Kosovo and Serbia - Agreed on 18 March 2023 - Article 2: Both Parties will be guided by the aims and principles laid down in the United Nations Charter, especially those of the sovereign equality of all States, respect for their independence, autonomy and territorial integrity the right of self-determination, the protection of human rights, and non- discrimination. - Article 4: The Parties proceed on the assumption that neither of the two can represent the other in the international sphere or act on its behalf. Serbia will not object to Kosovo's membership in any international organisation. - supports internal self-determination by emphasizing that Kosovo and Serbia will respect each other's sovereignty and independence, and Serbia will not block Kosovo from joining international organizations, reinforcing Kosovo's right to govern itself and participate in global affairs 2. External self-determination: right of peoples to determine their own political status and to be free of alien domination, including formation of their own independent state - Difficult to assess legally – competing principles of territorial integrity and state sovereignty - Reluctance to recognize external R2SD outside the context of decolonization - Accrues in most extreme circumstances – Severe violation of human rights or internal right to self-determination has not been respected by the parent state - International community must provide assistance, however should not violate international law (sovereignty, and territorial integrity) - Eg: Aaland Islands (small island between Finland and Sweden) ‘last resort’ argument when parent State (Finland) lacks will or ability to provide effective guarantees iii. Secession of Quebec - Re Secession of Quebec case (1998) - Right to Self-determination (SD) is now a rule of Customary International Law and treaty law – given to ‘peoples’ rather than states or individuals - The principle of self-determination respects the territorial integrity of existing states. - International documents support self-determination but limit it to avoid threatening state boundaries and international stability. - Internal self-determination involves a people developing politically, economically, socially, and culturally within their existing state. - External self-determination, such as unilateral secession, is only for extreme cases under specific conditions. o also possible when under alien subjugation – Palestine, Namibia, perhaps Western Sahara (para 133) o rare external SD possible only when people are blocked from accessing internal SD – usually only as a last resort may they secede (para 134) - External self-determination can lead to the creation of a new state, association with an independent state, or other political status chosen by the people. - Freedom from Colonial Rule is established under rules of IL and recognized right that can be exercised in the form of external SD (para 132) iv. Approaches to the right to self-determination It was during the era of decolonization (60’s and 70’s) that the right to Self- determination gained traction as a tool to protect their political, economic, cultural sovereignty of newly independent countries. Public International Law Niharika Palep [21 JGLS] 30 - Generally, it drives States to behave in accordance with the law explained - States that ask for it, are expected to respect it Contentious Case ICJ Statute 34 – Legal disputes only between states - Only states may be parties in cases before the Court o Court can only adjudicate with the consent of the States – there must be ‘voluntary and indisputable’ acceptance of Court’s jurisdiction o Corfu Channel Preliminary Objections case – the Court held that the letter from the Albanian government fully accepts the recommendation of the UNSC to the effect that the dispute should be referred to the ICJ and therefore constitutes voluntary, indisputable acceptable of the ICJ’s jurisdiction Consent to jurisdiction - Consent is essential – legal jurisdiction of the ICJ for contentious cases - Establishment of consent of a state – ICJ Statute, Art 36(1) - The jurisdiction of the Court comprises all cases which the parties refer to it and all matters specially provided for in the Charter of the United Nations or in treaties and conventions in force i. Special Agreement/compromise - ICJ Statute, Art 36(1) – Special Agreement Jurisdiction of the Court comprises of all cases which the parties refer to it - such cases come before the Court by notification to the Registry of an agreement known as a special agreement and concluded by the parties specially for this purpose - usually arise after a dispute has arisen - e.g. North Sea Continental Shelf Case special agreement ii. Treaties and conventions/Compromissory clause - Article 36(1): Jurisdiction of the Court includes matters provided for in treaties + conventions in force. o Cases are brought before the Court through a written application initiating proceedings o Application must indicate the subject of the dispute and the parties involved (A.40, para. 1). o Should specify the provision granting the Court jurisdiction. - Article 37 (PCIJ): References to jurisdiction clauses from the Permanent Court of International Justice (PCIJ) apply to the ICJ. - Bilateral or multilateral treaties that include a compromissory clause permitting jurisdiction – before the dispute has arisen - e.g. The Treaty of the La Plata River and its Maritime Limits (Article 87) between Uruguay and Argentina allowed either party to submit disputes concerning the treaty's interpretation or application to the International Court of Justice, leading to the Pulp Mills on the River Uruguay case iii. Optional Clause Declarations o ICJ Statutes, Art 36(2, and 5) - provides that a State may recognize as compulsory, in relation to any other State accepting the same obligation, the jurisdiction of the Court in legal disputes concerning 1. The interpretation of a treaty 2. any question of international law 3. the existence of any fact which, if established, would constitute a breach of international obligation 4. the nature or extent of the reparation to be made for the breach of international obligation Public International Law Niharika Palep [21 JGLS] 31 - Declarations providing for broad scope with respect to jurisdiction will allow a country to invoke reciprocity – for eg. Norway’s rather broad and expansive scope inviting jurisdiction. Compulsory jurisdiction must be reciprocal – there is no compulsory jurisdiction over a dispute in which only one party has agreed to compulsory jurisdiction (reciprocity rule) - States recognizing the ICJ's compulsory jurisdiction can bring other states (that accepted the same obligation) before the Court – by filing an application with the Court - Obligation to Appear: States that have recognized compulsory jurisdiction must appear before the Court if proceedings are instituted against them by other such states. Norwegian Declaration French Declaration o Recognizes ICJ's compulsory jurisdiction without special agreement. o Based on reciprocity. o Valid for ten years from October 3, 1946 o Recognizes ICJ's compulsory jurisdiction without special agreement. o Based on reciprocity. o Applies to disputes arising after ratification, except those with agreed alternative peaceful settlement methods. o Excludes matters essentially within national jurisdiction as understood by the French government. o Valid for five years, continuing until notice of termination. Problems in the Norwegian Loans Case - The dispute centered on whether Norway had to make payments on international bonds in gold to French nationals. Norway viewed this issue as falling within its domestic jurisdiction, while France believed the ICJ had jurisdiction. - France relied on Norway's A.36(2) declaration, asserting that both states had accepted the ICJ's compulsory jurisdiction. - However, Norway invoked France’s reservation, which excluded matters essentially within national jurisdiction, and used the reciprocity requirement to contest the ICJ’s jurisdiction. Checklist to Establish ICJ Jurisdiction on Substantive Matter 1. Optional Clause Declaration: Have the states submitted an Optional Clause Declaration under Article 36(2) or 36(5)? 2. Scope of Declarations: ▪ Compare the scope of each state's declaration. ▪ Identify which declaration has a broader ambit to determine potential for invoking reciprocity. • Exclusions in Declarations: Check if either state has specifically excluded substantive matter X in its declaration – Eg. India's exclusion of matters within its domestic jurisdiction or boundary issues • Temporal Validity: Verify if the Optional Clause Declaration is currently active – if the declaration has been renewed or if a notice of termination has been submitted Nicaragua Case (Nicaragua v. USA) - The United States challenged the ICJ's jurisdiction, claiming it had withdrawn its consent. - The U.S. argued that Nicaragua never formally agreed to the ICJ's compulsory jurisdiction under Article 36(5). However, the ICJ ruled that Nicaragua had accepted compulsory jurisdiction through its ratification of the UN Charter and the ICJ Statute, which validated its previous 1929 declaration recognizing compulsory jurisdiction. Public International Law Niharika Palep [21 JGLS] 32 - The U.S. had issued an Optional Clause Declaration in 1946 and later amended it in 1984, excluding disputes with Central American states for two years to support regional dispute resolution efforts. - The ICJ emphasized that while declarations of acceptance of compulsory jurisdiction are unilateral and facultative, states must adhere to the principle of good faith and cannot amend their commitments at will. The ICJ refused to accept the U.S.'s 1984 modification that sought immediate effect, reaffirming that changes should follow the six-month notice rule as stipulated by the U.S. itself. - The court highlighted that the U.S. had entered into a binding obligation towards other states and that any amendments to the declaration should honour the original terms, including the six-month notice period for withdrawal. iv. Forum Porogatum/Tacit Consent (Rule 38.5) - If a State has not recognized the jurisdiction of the Court at the time when an application instituting proceedings is filed against it, that State has the possibility of accepting such jurisdiction subsequently to enable the Court to entertain the case - the Court thus has jurisdiction as of the date of acceptance in virtue of the rule of forum prorogatum - Forum prorogatum refers to an agreement between parties to submit a dispute to a particular court or tribunal, even if that court or tribunal would not ordinarily have jurisdiction over the matter. - Corfu Chanel Case: UK unilaterally applied to the ICJ for settlement of the dispute, followed by Albania’s acceptance of the ICJ Jurisdiction by means of letter - Republic of the Congo v. France case: Congo sought the ICJ’s jurisdiction based on the anticipated consent of France under Article 38, paragraph 5, of the Rules of Court. This 'naked attempt' had no initial jurisdictional basis but acted as an invitation to settle the dispute judicially, which, if accepted, would confer jurisdiction to the ICJ. v. ICJ Statute A.36(6):The Court itself decides any questions as to its jurisdiction - Provides that in the event of a dispute as to whether the Court has jurisdiction, the matter shall be settled by the decision of the Court - Kompetenz-kompetenz: a legal fiction granting courts the power to rule on their own jurisdiction The ICJ Statute, specifically Article 38(1), outlines the primary sources of international law. However, Article 38(2) provides an exception, allowing the Court to decide a case "ex aequo et bono" if both parties agree, enabling decisions based on fairness and equity rather than strictly on written law. Ex aequo et bono: "according to what is fair and good," allowing decisions to be made based on principles of fairness and equity rather than strict legal interpretation Other aspects (procedural and substantive) of cases before the ICJ 1. Preliminary Objections (PO): Prior to the consideration of the merits of the case, POs must be raised within three months after the applicant has delivered the memorial, and a decision on POs to jurisdiction does not impact the subsequent consideration of the merits. 2. Court is master of its jurisdiction, even if it’s a compromis/ special agreement (Burkina Faso v Niger) o “A special agreement allows the parties to define freely the limits of the jurisdiction. It cannot allow them to alter the limits of the Court’s judicial function: those limits, because they are defined by the Statute, are not at the disposal of the parties, even by agreement between them. Public International Law Niharika Palep [21 JGLS] 35 Week 10 – Use of Force & Law of Armed Conflict Law before 1945 - The use of force was not absolutely prohibited under IL. The threat of use of force was permitted. - The Covenant of the League of Nations did not establish an absolute prohibition against the use of force by states. The use of force was considered a legitimate and legal option under certain provisions, such as Article 12 of the League Covenant. - Article 12 – members agreed to submit disputes likely to lead to a rupture to arbitration, judicial settlement, or Council enquiry. They agreed not to resort to war until three months after the award by arbitrators, judicial decision, or Council report. The award or decision was to be made within a reasonable time, and the Council report within six months. - The Kellogg-Briand Pact, 1928 – renounced the use of force as an instrument of national policy. - After 1945, with the establishment of the UN Charter, there was a significant change in the law on the use of force. There was a general prohibition on the use of force or resorting to war. Article 2(4) of the UN Charter requires states to refrain from the threat or use of force against the territorial integrity or political independence of any state, or in a manner inconsistent with the purpose of the United Nations. This rule applies exclusively to states; actions by non-state actors are treated as criminal offenses. States are prohibited from using force "inconsistent with the purpose" of the UN Charter unless explicitly provided for within the Charter. The rule allows for certain exceptions that align with the Charter's purpose. Other efforts to outlaw the use of force include UNGA Resolution 2625, which outlines the first principle, and UNGA Resolution 3314, which adopted the definition of aggression that has been incorporated into the Rome Statute as Article 8 bis (2), defining an "act of aggression." Exceptions to the prohibition to the Use of Force Jus ad bellum – it sets the normative boundaries as to when a state may resort to use of force. Generally, the raison d’etre of IL is to abolish or (at least) restrict violence. Yet, there is always a resort to war, and it has to be considered legally permissible as an attribute of Statehood. This has historical evolved from the “just war theory” i.e., St. Augustine state wars are necessary to amend an evil. St. Augustine and St. Thomas Aquinas (c. 1200) gave 3 criteria for just war 1) Just authority – war should be waged by a legitimate authority. 2) Just cause – self-defence, resisting aggression etc. 3) Just intentions – the object of war is peace. War and the League of Nations [Art. 10-17] Art. 10 – We will respect and preserve against territorial integrity and existing political independence. Art. 12 – if there is a dispute, it must be taken either to arbitration or judicial pronouncement, and if there is no solution to the same, the countries must wait 3 months before they can use war as an option. Article 2(7) – the UN cannot intervene in domestic matters of any state – this does not affect the application of enforcement measures under Chapter VII Article 24 (1) – grants the Security Council primary responsibility for maintaining international peace and security, acting on behalf of UN members to ensure prompt and effective action Article 25 – The Members of the United Nations agree to accept and carry out the decisions of the Security Council in accordance with the present Charter Public International Law Niharika Palep [21 JGLS] 36 i. Chapter VII Mandate Chapter VII authorization is distinct from Chapter VI mandates, which focus on pacific or peaceful settlements of disputes. Under Chapter VI, state consent is required, typically for peacekeeping operations. o Examples include UNSC Resolution 47 (India and Pakistan) and Resolution 67 (Indonesia). Under Chapter VII, state consent is not required for the UN to take enforcement actions, due to states having ratified or acceded to the UN Charter. Article 39 – Defines the conditions under which the UNSC can intervene – The SC shall determine the existence of a) the existence of any threat to the peace, b) breach of the peace, c) or act of aggression decide what measures shall be taken in accordance with Articles 41 and 42, to maintain or restore international peace and security.” o Aggression – UNGA Resolution 3314: “Aggression is the use of armed force by a State against the sovereignty, territorial integrity or political independence of another State, or in any other manner inconsistent with the Charter of the United Nations, as set out in this Definition.” o Threat to the Peace – not explicitly defined in the UN Charter. The UNSC has considerable discretion in determining what constitutes a threat to peace. Historical context by Goodrich, Hambro, and Simons (1969) indicates a lack of consensus on the exact meaning of the terms in Article 39, leading to subjective political judgments. o UNSC's Discretion – has broad authority to determine what constitutes a “threat to the peace.” This determination can be highly subjective and politically influenced. ▪ For example, The UNSC could theoretically deem any situation, even as unusual as the existence of blue-eyed babies, as a “threat to the peace.” This discretion allows the UNSC to authorize economic sanctions or the use of force to address perceived threats. o Actions taken by the UNSC must aim to maintain/restore international peace and security - cannot take punitive measures unless they can be directly linked to maintaining international peace and security. o Examples of UNSC Action ▪ Resolution 827 established the International Criminal Tribunal for the former Yugoslavia (ICTY). ▪ Resolution 995 established the International Criminal Tribunal for Rwanda (ICTR). ▪ Both tribunals were created as measures to maintain peace and security by addressing severe breaches of international peace through accountability and justice. o UNSC Resolution 660 – Determines a breach of peace and security due to Iraq's invasion of Kuwait. ▪ Demands Iraq withdraw its forces immediately + unconditionally to positions as of 1 Aug 1990. ▪ Indicates the UNSC's awareness and control over the situation. ▪ Triggers Article 12 restrictions on the UNGA. Article 41 – Authorises Non-Forceful Measures such as: a) Interruption of economic relations. b) Interruption of rail, sea, air, postal, telegraphic, radio, and other communication means. c) Severance of diplomatic relations. UNSC Resolutions on Southern Rhodesia Public International Law Niharika Palep [21 JGLS] 37 o Resolution 217 (1965) – Determines that the unilateral declaration of independence by Southern Rhodesia's illegal authorities constitutes a threat to international peace and security. Calls on all states to refrain from providing arms, equipment, and military material to Southern Rhodesia and to break all economic relations, including an embargo on oil and petroleum products. o Resolution 253 (1968) – Reaffirms that the situation in Southern Rhodesia is a threat to international peace and security (Art 39 determination). Acts under Chapter VII, deciding that all UN member states shall prevent various forms of sanctions against Southern Rhodesia. Article 42 – Use of Force Permits the UNSC to authorize the use of force if the non-forceful measures under Article 41 are inadequate or have proved inadequate to maintain or restore international peace and security. o Allows actions by air, sea, or land forces as necessary to maintain or restore international peace and security – may include demonstrations, blockades, and other operations by air, sea, or land forces of UN member states. o Directs the UNSC to first consider non-forceful measures – then authorize the use of force if necessary. o UNSC Resolution 678 – Authorizes member states cooperating with Kuwait to use all necessary means to uphold and implement Resolution 660 and all subsequent relevant resolutions. ▪ Sets a deadline of 15 January 1991 for Iraq to fully implement the mentioned resolutions. ▪ Allows military force to fulfil the mandate of Res. 660 and restore international peace and security in the area. ▪ Limits the mandate to removing Iraqi forces from Kuwait, not authorizing an invasion of Iraq. ▪ Excludes some states from using force against Iraq. ▪ Provides a temporal opportunity for compliance, although international law does not necessitate a deadline. Under Chp.VII, the following procedure is followed: Step I – Determine if there exists a threat. Article 39 - The Security Council shall determine the existence of any threat to the peace, breach of the peace, or act of aggression and shall make recommendations, or decide what measures shall be taken in accordance with Articles 41 and 42, to maintain or restore international peace and security. Step II – Call upon Parties for compliance. Article 40 - In order to prevent an aggravation of the situation, the UNSC may, before making the recommendations or deciding upon the measures provided for in Article 39, call upon the parties concerned to comply with such provisional measures as it deems necessary or desirable. Such provisional measures shall be without prejudice to the rights, claims, or position of the parties concerned. The UNSC shall duly take account of failure to comply with such provisional measures. Step III – Determine if forcible or non-forcible measure required. ▪ Non-forcible – Article 41 - The UNSC may decide what measures not involving the use of armed force are to be employed to give effect to its decisions, and it may call upon the Members of the UN to apply such measures. These may include complete or partial interruption of economic relations and of rail, sea, air, postal, telegraphic, radio, and other means of communication, and the severance of diplomatic relations. ▪ Forcible – Article 42 – Should the UNSC consider that measures provided for in Article 41 would be inadequate or have proved to be inadequate, it may take such action by air, sea, or land forces as Public International Law Niharika Palep [21 JGLS] 40 - The use of force against NSAs in another sovereign state is contingent upon that state's inability or unwillingness to address the threat. Malcolm Shaw highlights the relative nature of "imminence" in pre-emptive self-defence, stressing the importance of credible evidence and non-forcible means to avert threats. He underscores the principles of proportionality and necessity, which demand responses corresponding to the threat's nature and scale, while also limiting actions to those necessary for threat elimination and considering non-military options. iii. Humanitarian Intervention - an exception to Article 2(4) of the UN Charter, allowing the use of force on humanitarian grounds when a state is unable or unwilling to protect its people from gross and systemic human rights violations. - It's controversial because it permits unilateral intervention, which can be abused. - NATO's intervention in Kosovo in 1999 is a notable example, justified on humanitarian grounds despite lacking explicit UN Security Council authorization. - Legal justifications for such interventions are often convoluted and subject to scrutiny. The International Commission on Kosovo deemed NATO's intervention "illegal but legitimate," highlighting the moral dilemma surrounding humanitarian intervention. Responsibility to Protect (R2P) Doctrine - R2P rejects the idea of unilateral humanitarian intervention, stating that the international community should act collectively under UN Security Council authorization. - R2P asserts that states have a duty to protect their citizens, but if they're unable or unwilling, the responsibility falls on the international community, with force as a last resort. - The criteria for the use of force in humanitarian intervention include evidence of extreme humanitarian distress, no practicable alternatives, necessity, proportionality, and strict limitation in time and scope. - Christopher Greenwood's criteria – clear evidence, necessity, and proportionality - R2P emerged in response to past failures to intervene effectively, aiming to establish clear guidelines for international action to prevent mass atrocities. Core elements of R2P 1) A state is responsible for protecting its people from mass human rights violations. 2) If the state is unable to protect its citizens by itself, the state should ask the international community for assistance. 3) If the state fails to protect its citizens and peaceful measures have failed, R2P assigns to the international community the responsibility to intervene with technical support, followed by military action as a last resort. “Threat or Use of Force” – Nuclear Weapons Advisory Weapons case - In the context of nuclear weapons, the ICJ ruled that the threat and use of force under Article 2(4) of the UN Charter are intertwined: if the use of force is deemed illegal, then the mere threat of such force is also unlawful. Therefore, any declaration of readiness to use force must align with the principles of the Charter, with no state suggesting that it would be lawful to threaten force if the contemplated use of force would violate international law. Public International Law Niharika Palep [21 JGLS] 41 Week 11 – State Responsibility General Principles - In IL, whenever the state commits a wrongful act some form of responsibility (state responsibility) is attributable to that state. - A breach of an int. obligation gives rise to a requirement for reparation - All rights of an international character involve international responsibility. Responsibility results in the duty to make reparation if the obligation in question is not met. - The rules of SR should be regarded as secondary rules. They encompass general principles that govern wrongful acts or omissions and the legal obligations arising from such acts. - These rules do not define substantive obligations. Instead, they serve as a framework within which substantive obligations operate. - Therefore, rules of a substantive nature may be applicable over and above these principles, providing specific obligations and duties that states must adhere to in various contexts. Primary rules of SR: 1. Failure to honor obligations of a treaty 2. Violation of customary law a. violating sovereignty b. damage to property of another state c. causing harm to diplomatic representatives of other state Where does the ILC derive its mandate from? The ILC derives its mandate from Art. 13(1)(a) of the UN Charter which states that the UNGA shall initiate studies and make recommendations for the purpose of promoting int. co-operation in the political field and encouraging the progressive development of IL & its codification. The ILC, in 2001, introduced the Articles on Responsibility of States for Intentionally Wrongful Acts [ARSIWA]. Rules can be both primary and secondary. Primary rules are all the substantive and procedural rules (embodied in treaties or customs) whose breach gives rise to responsibility while Secondary rules are those rules that govern the consequence of non-performance/breach of primary rules. The rules on state responsibility (embodied in ARSIWA) fall within the category of secondary rules. Article 1 of the Draft Articles on Responsibility of States: “Every internationally wrongful act of a State entails the international responsibility of that State.” – may consist in one or more actions or omissions or a combination of both Article 2 of the Draft Articles on Responsibility of States – Elements of 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. Acts giving rise to State Responsibility Breach of an international obligation (Art. 3, 12, 13) + Attribution (Art. 4-11) - Circumstances precluding wrongfulness (Art. 20-27) = Responsibility of a State (Art. 1) Conduct - Article 3: The characterization of an act of a State as internationally wrongful is governed by IL. - not influenced by whether the act is considered lawful under the state's internal law - Internal law cannot justify the lawfulness of an internationally wrongful act or omission. Public International Law Niharika Palep [21 JGLS] 42 - Article 2: An internationally wrongful act can be an act or omission by the state. - The wrongfulness of such acts (acts or omissions) is determined under international law, regardless of domestic or municipal law perspectives. Attribution - Conduct must be attributable to a state - Article 4: the actions of any state organ, regardless of its function, position, or level within the government, are considered acts of the state under international law. Additionally, an organ includes any person or entity recognized as such by the state's internal law. - A state is responsible for the conduct of its organs, even when they may be doing so in an ultra vires manner - Conduct of any organ of the state is attributable to the state itself – classification does not matter – ICJ in Special Rapporteur opinion wrt the Malay Judiciary - Extends to organs of WHATEVER kind/classification, exercising WHATEVER functions, and at WHATEVER level in hierarchy - While only certain agents may bind the State (ref: VCLT Art. 6-8), the conduct of any State official (however low-level) may be attributed to that State provided that it constitutes as IWA - Attribution to the state can be both objective and subjective in nature o Subjective: intent/knowledge – e.g., Art II of the Genocide Convention: “intent to destroy” o Objective: means that it is the strict acts of the State that counts. Liability of the state is strict. - Varies from situation to situation, closely linked to the object and purpose of the rules giving rise to primary responsibility - Wrongful act (or omission) must be linked with State and an obligation of the state under treaty or customary law - Omission: failing to take steps or actions when the state is required to do so – ICJ in the Diplomatic and Consular Staff case o Corfu Channel case – Can a State be held liable for an omission? – ICJ stated that Albania either knew or should have known about the presence of mines in its territorial waters and failed to inform other states. The Court concluded that Albania is internationally responsible for the explosions in its waters on October 22nd, 1946, due to its failure to warn nearby ships, resulting in damage and loss of life, and must therefore compensate the UK. - Principle Applied to Central or Federal Governments: o The ICJ in the LaGrand case established that even though domestic legal authority resides with the Governor of Arizona, he is still under an international legal obligation to adhere to the international commitments of the United States. o Federal units typically lack international legal personality, thus their actions are often attributed to the central government. - Treaty Provisions: may delineate the limited powers of the central government, as evidenced by Article 34 of certain treaties, which can be intriguing to explore. - Individual Responsibility: principle of attribution also applies to individuals who act under the colour of authority to abuse power, personal motives. i.e. these acts will be attributed to the state o Mallen case: excessive authority and abuse of powers by American police were observed – battery by a Texas Police officer against a Mexican Counsel – motivated by personal vendetta – such acts are attributed to the state Public International Law Niharika Palep [21 JGLS] 45 - The primary objective is to save human lives, emphasizing the immediate need regardless of the nationality of those at risk. - Unlike situations of force majeure, where actions may be considered involuntary due to external circumstances, acting under distress does not negate voluntariness, even though the options are limited by the perilous situation. v. Necessity – Article 25 - can be invoked only in cases of 'grave and imminent peril', where immediate action is necessary. - However, such action must not harm the interests of other states or the international community. - If a state has contributed to the situation leading to the necessity, it forfeits the right to invoke this defense. - Torrey Canyon incident – the UK bombed a ship in international waters to contain an oil spill after initial efforts failed. According to ILC, necessity, in this context, doesn't focus on individual lives but on the essential interests of the State or the international community. - There's a higher legal threshold for invoking this defense, making it rarely available for justifying non- performance of obligations or violations of existing treaties or customary law. - Rainbow Warrior case – Tribunal took the view that the defense of state necessity was ‘controversial’ - Gabčíkovo-Nagymaros Project – recognized necessity as a ground for precluding the wrongfulness of an act not in conformity with an international obligation, but only on an exceptional basis, requiring the cumulative satisfaction of conditions outlined in Article 25. Difference b/w self-defense & countermeasure – Self-defense is a forcible measure. Countermeasure is a non-forcible measure (must be in accordance w Art. 49-53 of ARSIWA). Article 54 – All the counter measures generally apply to Art. 42. Difference b/w distress & necessity – Necessity has a higher threshold i.e., grave, and imminent peril. Distress is used for protection of human life Invocation of Responsibility - can be invoked by entities with a specific right to do so, typically a State that has suffered injury. - Previously, only an "injured State" could invoke responsibility, as per the old jurisprudence of the ICJ in cases like Mavrommatis Palestine Concessions (Greece/UK) 1924. - However, this has been broadened to include "injured party," such as international organizations that have directly suffered harm, as recognized by the ICJ in Reparations Advisory Opinions. - further expanded to encompass "specially affected State" as outlined in Art. 42(b)(i). - Generally, responsibility is owed only to injured states – however – ICJ in Ethiopia v South Africa; Liberia v South Africa – action popularis – right to take legal action in vindication of a public interest. Public International Law Niharika Palep [21 JGLS] 46 - The principle of "obligations erga omnes" - Barcelona Traction case – rights and obligations owed to each State, violations of which grant any State the locus standi to invoke responsibility - Led to the codification of Art. 48 in the ARSIWA, which outlines the invocation of responsibility by a State other than the injured State, with subsections (1)(a) and (1)(b) specifying obligations erga omnes partes and obligations erga omnes respectively. Consequences of internationally wrongful acts o Cessation [Art. 30, ARSIWA] – To cease that act, if it is continuing, and to offer appropriate assurances and guarantees of non-repetition (if required). o Reparations [Art. 31, ARSIWA] – To make full reparation for the injury caused by an int.ly wrongful act, and injury includes any damage, whether material or moral, caused by the int.ly wrongful act of a State. 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 the act would not have been committed. o Forms of Reparation [Ch. II] ▪ Full restoration in kind (Restitution in integrum) – A.35 – e.g., return of unlawfully seized territory/object [Temple of Preah Vihear (Cambodia v Thailand)], release of prisoners [Tehran Hostages case], grant of consular access [Kulbhushan Jadhav case] ▪ Compensation - A.36 – compensation comes only insofar as restitution is not possible. ▪ Satisfaction – A.37 – insofar as it cannot be made good by restitution or compensation, the State affected may ask for satisfaction for injury caused by responsible State, which may include an acknowledgement of breach, expression of regret etc. ▪ Interest – A.38 – insofar Rainbow Warrior’s Case 1. On July 10, 1985, the French military security service (DGSE) conducted an undercover operation sinking the Dutch-registered Greenpeace ship Rainbow Warrior in Auckland Harbour. 2. The incident resulted in the death of Portuguese photographer Fernando Pereira. 3. The Greenpeace ship intended to disrupt French nuclear tests in French Polynesia. 4. Two French agents were convicted in New Zealand for the attack. 5. The UN Sec-Gen mediated the matter, leading to the detention of the agents in Polynesia for a minimum of three years. 6. One agent left Polynesia on health grounds, and France agreed to this; New Zealand protested. 7. The other agent, found to be pregnant, was returned to France by invoking distress/necessity before New Zealand's medical experts could verify the situation. Issues: Can France be held responsible for the acts of the two French secret forces members? Did NZ have any remedies? Court’s Decision Responsibility: NZ claimed France's international legal responsibility was engaged at every stage, from authorization to execution. The French President acknowledged the incident as a criminal attack, inexcusable for any reason. France highlighted Greenpeace's illegal actions but admitted the attack violated New Zealand's sovereignty and international law, entitling New Zealand to compensation. Reparations: New Zealand sought reparations including a formal apology, reimbursement of costs, and compensation for sovereignty violations, demanding no less than US$9 million. The Secretary-General ruled that France should provide an unqualified apology and pay US$7 million in compensation, possibly including pecuniary compensation for moral damages. Public International Law Niharika Palep [21 JGLS] 47 Week 12 – State Jurisdiction Jurisdiction – Definition and Importance - States are subjects of international law and thus as a subject of international law, a state has certain legal rights and duties – this includes certain sovereign rights - An aspect of a state’s sovereignty, an essential right of statehood. It is a matter of right under CIL for a state to prescribe (make), enforce (execute), and adjudicate laws in its sovereign territory. - The extent and limits of legal competence – of a State/entity/regulatory authority – to make, apply, and enforce legal rules – w.r.t. persons, property, and other matters - Exercise of jurisdiction reflects the classic exercise of state sovereignty, equality of states, and non- interference in domestic affairs - As per the classical Westphalian system (UN A.2.4 “or political independence of any state”), other states and IOs (A.2(7) of UN Charter) must respect the laws of a state within its jurisdiction - A.2(7) - The UN cannot intervene in matters that are essentially within a state's domestic jurisdiction or compel members to settle such matters under the Charter. Why is jurisdiction important under IL? Jurisdiction allows a state to express its sovereignty. - Two arms of sovereignty: o State is supreme internally (within its own territorial frontiers) o A State must not interfere in the domestic affairs of another State - It enables a state to demonstrate its complete independence in formulating domestic laws. - The principle of sovereignty protects certain state activities from international law scrutiny, referred to as the "domaine reserve" or exclusive state jurisdiction, as reinforced by Article 2(7). - However, certain domestic regulations, such as those pertaining to nationality or entry of non- nationals, may still carry international legal consequences. - As a restrictive device, jurisdiction has rules that limit the extent of a state's exercise of jurisdiction, based on CIL – delimits competencies between states, serving as the basic 'traffic rules' of the international legal order. Jurisdiction is typically tied to territory, but it's not always confined to it; states may claim jurisdiction over offenses occurring outside their borders, while certain circumstances, like diplomatic immunity, may restrict jurisdiction over offenses on their territory – determination of jurisdiction is complex with potential overlaps. Forms of Jurisdiction in International Law i. Jurisdiction to prescribe - All sovereign states have unlimited prescriptive jurisdiction – capacity to make, amend, or repeal legal rules – State’s constitutionally recognized organs (L/E/J) make binding laws regulating affairs in its territory - The appropriate municipal law-making body (such as the legislature or monarch etc.) is permitted to create, amend, or repeal laws covering any subject or any person, irrespective of the person’s nationality or location. - Generally, it is based on the territoriality of the crime, but not always. - The Lotus principle – the permissive rule – In these circumstances all that can be required of a State is that it should not overstep the limits which international law places upon its jurisdiction; within these limits, its title to exercise jurisdiction rests in its sovereignty. - A state is not permitted to exercise its power outside its territory, unless this is permitted by a rule of CIL or through a treaty, or some form of consent of the state. Public International Law Niharika Palep [21 JGLS] 50 - Cutting case – an American citizen was arrested in Mexico for libel against a Mexican national, with the alleged libelous act committed while the author was in the US. Mexico invoked the passive personality test for jurisdiction, but the US Government opposed this claim - US v. Yunis case – a Jordanian terrorist was arrested in international waters for hijacking a Jordanian-registered airliner with four Americans on board. The court recognized the passive personality test, which applies to offenses against a nation’s citizens abroad, a principle now generally accepted in customary international law for acts of terrorism. - The ICJ in the Arrest Warrant case (Democratic Republic of Congo v Belgium) concluded that passive personality jurisdiction, once controversial, is now reflected in various countries' legislation and meets relatively little opposition for certain offenses. - Concerns to Consider: 1. Application of a foreign State’s criminal law in a given territory raises sovereignty and jurisdictional issues. 2. From the perpetrator’s perspective, they cannot anticipate which State’s laws they will be subjected to, impacting their legal rights and expectations. - Aut dedere aut judicare, meaning "either extradite or prosecute," – often applies to terrorism and now torture – authorizing but not compelling states to exercise passive jurisdiction - The protective principle protects the State from acts perpetrated abroad which jeopardize its sovereignty or its right to political independence - The state has jurisdiction to prosecute aliens who commit acts outside of its territory which have a potentially adverse effect on its security or governmental functions, even though no criminal effect actually occurs within the state - allows a sovereign state to assert jurisdiction over a person whose conduct outside its boundaries threatens the states security or interferes with the operation of its government functions - US v. Keller – the defendant's motion to dismiss his indictment for marijuana-related charges was denied by the United States District Court in Puerto Rico, which held that his planned invasion of U.S. customs territory provided a sufficient basis for subject matter jurisdiction under the protective theory. Additionally, the court determined that the defendant's vessel was subject to the special maritime jurisdiction of the United States. The United States asserted jurisdiction based on the nationality of the victim (U.S. customs territory) rather than the location of the offense. iv. Universal jurisdiction - refers to the authority of a state to prosecute individuals for certain serious crimes, regardless of where the crime was committed, the nationality of the perpetrator or victim, or any other connection to the state. - Universal Jurisdiction waives imperfections on the issue of jurisdiction - Based solely on the nature of the crime, without regard to territorial boundaries or national affiliations, universal jurisdiction allows states to pursue legal action against individuals who have committed crimes such as piracy, crimes against humanity, war crimes, genocide, and torture. - Case of Captain William Kidd – where pirates were considered enemies of all states, leading to the recognition that all states had the right to prosecute pirates irrespective of territorial jurisdiction or national affiliations. - Serves to protect the international community or the international order itself by addressing crimes that pose a threat to global peace, security, and human rights. - Applies to a limited set of crimes recognized as particularly egregious and harmful to international interests, ensuring that perpetrators are held accountable regardless of where the crime occurred or the nationality of those involved. Public International Law Niharika Palep [21 JGLS] 51 - Who may prosecute using universal jurisdiction? ▪ Competent Judicial Body: Any state's ordinary judicial body ▪ Universal jurisdiction can be applied if the accused person is physically present before the judicial body – Accused of committing serious crimes u as specified in Principle 2(1) - Principle 2(1) – serious crimes under IL include: (1) piracy; (2) slavery; (3) war crimes; (4) crimes against peace; (5) crimes against humanity; (6) genocide; and (7) torture - Principle 2(2) – universal jurisdiction can extend beyond crimes listed in paragraph 1 - Application of universal jurisdiction to crimes listed in paragraph 1 doesn't limit its application to other crimes under international law. - Acts of terrorism targeting internationally significant individuals are likely candidates for inclusion - Treaty-based Jurisdiction: New crimes may be added through treaties or as CIL evolves - Article VI of the Convention on the Prevention and Punishment of the Crime of Genocide Individuals charged with genocide or other listed acts must be tried either in the state where the crime occurred or by an international tribunal if the involved countries agree to its jurisdiction. - US Genocide Accountability Act, 2007 – allows for the prosecution of persons who are brought in or found in the US - Rationale for Universal Jurisdiction o A state exercising universal jurisdiction acts on behalf of all states globally (acting as an agent) and is therefore permitted to indite and prosecute o States are permitted to indict and prosecute individuals for crimes of international concern. o AG v Adolf Eichmann: The State of Israel, in the Eichmann case, justified its jurisdiction based on the international nature and widespread impact of the crimes committed. o States can act as guardians of IL and enforce it by prosecuting individuals for crimes that threaten global stability. o Positive Approach: The existence of the State of Israel at the time of prosecution wasn't a barrier because it acted to uphold international law, demonstrating a proactive stance in rejecting jurisdictional challenges. o Certain acts are harmful to all nations – Legal safety net that provides global accountability and avoids safe havens, especially when states with closer legal links fail to do so. Example: pirates are considered hostis humanis generis – enemies of all mankind, therefore subject to protection of all nations o Pinochet case, 1999 - established that Pinochet could be extradited to Spain for committing torture during his time as the President of Chile, in spite of his domestic immunity. - Risks of Universal Jurisdiction o Political Friction: Universal jurisdiction can lead to tensions between sovereign states, especially if perceived as politically motivated. o Inadequate Safeguards: Insufficient implementation of due process norms, like seen in Bangladesh's International Crimes Tribunal, can undermine the legitimacy. o Examples of Political Problems: Belgium's 1993 Universal Jurisdiction Legislation initially lacked proper restrictions, enabling complaints against sitting heads of state and high-ranking officials like Colin Powell and George Bush. Amendments in 2003 were made to restrict jurisdiction based on residency/nationality of victim and empower prosecutors to dismiss groundless complaints or redirect them to more suitable jurisdictions. o Potential for Abuse: Universal jurisdiction may be misused for political purposes, leading to frivolous or unjustified legal actions against individuals in power. Public International Law Niharika Palep [21 JGLS] 52 Week 14 - Critiques of International Law Doctrinal and Institutional Developments: Antony Anghie argues that international law's evolution isn't merely a logical extension of sovereignty doctrine but is deeply influenced by colonial order issues. The civilizing mission and dynamics of difference are key factors shaping jurisprudential approaches. Inadequacy of Non-Western Scholarship: - Non-Western scholarship is marginalized due to the perception that the West is the sole source of international legal knowledge. - There's a presumed belief in the universality of international law, ignoring regional differences such as human rights in Asia versus Europe. - Limited geography: Dominance of certain places (like Geneva, Hague) in international legal practice excludes representation from regions like Africa and Latin America. - Location Bias: Major hubs of international law, such as NYC and Geneva, are situated in the Global North, while significant courts in the Global South, like those in Arusha, Tanzania, receive little recognition, leading to the sidelining of decisions from African courts. - Imbalance in practice: OECD countries dominate international legal practice, leaving non-OECD countries underrepresented. Underrepresentation in Case Law and Literature: - Authorities in Public International Law (PIL) textbooks are predominantly white males, ignoring events like slavery and citations from South Asian scholars, thus exhibiting bias toward the Global North. - African institutions/case laws are often not cited in international literature, perpetuating the idea of Western superiority. - Non-Western courts are often seen as examples of what not to do, rather than sources of innovative legal practices. - African legal systems are perceived as behind and inexperienced, hindering their recognition in international legal discourse. - Critiques of Indian/Asian philosophy as rooted in religion are deemed racist, especially when PIL principles themselves are influenced by Christianity. TWAIL – “Third World Approaches to International Law" ▪ a critical theory of international law that emerged as a response to the perceived biases and inadequacies in traditional approaches to studying and practicing international law ▪ examines the ways in which IL has historically served to perpetuate inequalities between the Global North and the Global South, particularly in the context of colonialism, imperialism, and post- colonial struggles ▪ seeks to challenge dominant narratives and structures within international law, advocating for a more equitable and inclusive approach that reflects the perspectives and interests of marginalized communities in the Third World ▪ Global North refers to economically developed regions, predominantly in the Northern Hemisphere, characterized by industrialization, wealth, and political influence.