Appunti International Law - CEILS Unitn 2022/2023 - Elena Fasoli, Appunti di Diritto Internazionale

Scarica Appunti International Law - CEILS Unitn 2022/2023 - Elena Fasoli e più Appunti in PDF di Diritto Internazionale solo su Docsity! PUBLIC INTERNATIONAL LAW Chiara Garioni - a.y. 2022/2023 Sources of International Law Article 38 - Statute of the International Court of Justice 1. The Court, whose function is to decide in accordance with international law such disputes as are submitted to it, shall apply: ● international conventions, whether general or particular, establishing rules expressly recognized by the contesting states; ● international custom, as evidence of a general practice accepted as law; ● the general principles of law recognized by civilized nations; 2. subject to the provisions of Article 59, judicial decisions and the teachings of the most highly qualified publicists of the various nations, as subsidiary means for the determination of rules of law. Article 38 of the Statute of the International Court of Justice lists the main sources of International Law and it is considered to be the authoritative source in international law. Official sources: ● Treaties between states; ● Customary international law; ● General principles of law; Subsidiary sources: ● Decisions of international courts, not national; ● Eminent teachings of the most relevant international law publishers. The sources, therefore, are: international conventions, agreements, treaties and customs. There’s no hierarchy between these, at least generally. There’s a discussion regarding the Ius Cogens (rules erga omnes), which can be seen as more relevant and create space for a sort of hierarchy, as it is not replaceable. Art. 26 of the Vienna Convention states that the principle of pacta sund servanda is fundamental, as every treaty is binding for each and every party of it and it must be followed in good faith. We need, however, to remember that the Vienna Convention deals only with written agreements. The subject of International Law are states and increasingly international organizations (intergovernmental). International Law is made by observing the behavior and conduct of states. Treaties: validity, invalidity, termination, suspension Treaties are the most important source of international law, as it is the practical way through which states interact. In international law, courts cover a different role from the one they cover in national law, as there’s no central legislation therefore the way law is enforced is not centralized. In fact, everything is decentralized. Courts are based on content and are created on the basis of treaties. In order to subject themselves to said courts, states need to express their consent, therefore the court is established and created within the treaty. There can be additional agreements including the issues discussed by the courts and including the consent of the states. The rules on the law of treaties (secondary rules that basically prescribe how treaties are made, interpreted, going to be invalidated, withdrawn from) are the default rules, customary. Vienna Convention on the Law of Treaties (1969) It is the treaty containing rules on how to deal with treaties. It was negotiated, but most of it was drafted by the International Law Commission of the United Nations, composed by independent experts. The commission prepared the draft articles and proposed them to the assembly in order for it to later negotiate with states. The Convention was in fact the result of these negotiations. It entered into force in 1980 and applies to all the treaties established from 1980 on. Especially after 2010, the International Law Commission has come back to some sources of law of the treaties that were not clear enough, provisions on the application of treaties and other matters that had not been sufficiently discussed within the Vienna Convention at first. Article 2 of the Convention gives the authoritative definition of what constitutes a Treaty. Article 2 - Vienna Convention on the Law of Treaties (a) “treaty” means an international agreement concluded between States in written form and governed by international law, whether embodied in a single instrument or in two or more related instruments and whatever its particular designation; The article excludes anything unwritten or based on domestic law (such as contracts) and does not consider international organizations (which rely on customary law and on the Vienna Convention on Treaties between states and international organizations). An example of this exclusion is the Anglo Iranian Oil case, in which the International Court of Justice declared the agreement between the parties just a contract with hybrid clauses, as a treaty cannot be between individuals (private investors, in this case) and states. The Vienna convention does not say how we can ascertain the existence of an international treaty. We can find a Treaty despite its particular designation and name (e.g. convention, charter, contract, memorandum, press release etc.). It depends on the nature of the act or transaction to which it gives expression. We have to look at the intention of the parties to create something binding at international law level, through which they gain duties and rights. We need to look at the actual terms of the act and to the particular circumstances to which it was drawn. Article 3 - Vienna Convention on the Law of Treaties The fact that the present Convention does not apply to international agreements concluded between States and other subjects of international law or between such other subjects of international law, or to international agreements not in written form, shall not affect: (a) the legal force of such agreements; (b) the application to them of any of the rules set forth in the present Convention to which they would be subject under international law independently of the Convention; (c) the application of the Convention to the relations of States as between themselves under international agreements to which other subjects of international law are also parties. States can negotiate between each other with rules of domestic law, but those do not constitute international treaties. 1 This issue does not include binding customary international law. There are supplementary means of interpretation as well, used to confirm or clarify the interpretation more in depth and they’re dealt with in Article 32. Article 32 - Vienna Convention on the Law of Treaties Recourse may be had to supplementary means of interpretation, including the preparatory work of the treaty and the circumstances of its conclusion, in order to confirm the meaning resulting from the application of article 31, or to determine the meaning when the interpretation according to article 31: (a) leaves the meaning ambiguous or obscure; or (b) leads to a result which is manifestly absurd or unreasonable. The Convention only applies to treaties concluded after its entry into force, but these articles apply to treaties prior to 1980 as well. Preparatory works are the notes of documentations of negotiations and they have to portray the intention of the parties and the situation at the time, having a supplementary role. Reservations A “Reservation” is a unilateral statement, however phrased or named, made by a State, when signing, ratifying, accepting, approving or acceding to a treaty, whereby it purports to exclude or to modify the legal effect of certain provisions of the treaty in their application to that State; An interpretative reservation If an interpretative declaration purports to clarify the interpretation of a treaty, it is an interpretative declaration, while if it is conditional, it is actually a reservation. Looking as the Belilos v. Switzerland case, the issues at stake were: 1. Whether the declaration was a mere interpretative declaration or not have the effect of a reservation; 2. Is the Court’s competent to determine the validity of a reservation. Art. 19 deals with the formulation of reservations. Article 19 - Vienna Convention on the Law of Treaties A State may, when signing, ratifying, accepting, approving or acceding to a treaty, formulate a reservation unless: (a) the reservation is prohibited by the treaty; (b) the treaty provides that only specified reservations, which do not include the reservation in question, may be made; or (c) in cases not failing under subparagraphs (a) and (b), the reservation is incompatible with the object and purpose of the treaty. Up until the 60s, the condition of acceptance of a treaty was unanimity, but a problem would usually arise, as some states would refuse to be a part of it. Allowing reservation, the objective of the treaty would be seen as undermined. The International Court of Justice states that a balance between the integrity of the treaty and universality was to be found, therefore they legislated that reservations had to respect the integrity of the treaty. Acceptance and Rejection of reservations Acceptance and rejection are substantially unilateral acts. 4 Acceptance makes the reservation-proposing state party to the treaty and at least one is required for this to happen; when 12 months pass after the notification of the act, it counts in fact as acceptance; Then a bilateral relation is created between the proposing state and the accepting one. Article 20, p. 4, sub. a - Vienna Convention on the Law of Treaties (a) acceptance by another contracting State of a reservation constitutes the reserving State a party to the treaty in relation to that other State if or when the treaty is in force for those States; Objection: states can object for whatever reason they want. Relationship between the reserving state and the objecting one: ● Art. 20 par. b : an objection by another contracting State to a reservation does not preclude the entry into force of the treaty as between the objecting and reserving States unless a contrary intention is definitely expressed by the objecting State; The objective state has the discretion to say that the treaty does not apply to their relationship; ● art. 21 par. 3: When a State objecting to a reservation has not opposed the entry into force of the treaty between itself and the reserving State, the provisions to which the reservation relates do not apply as between the two States to the extent of the reservation. Art. 19 creates a permissibility requirement, if it is not satisfied, art. 20-21 cannot be applied. Legal effect when there’s an impermissible reservation: void, no legal effect. ● If the reservation got consent, the state is bound without the effect of the reservation (decision of human rights committee); ● If the reservation got consent, the state is not bound by the treaty in its entirety. 1998 Bellillo v Switzerland: provision invalid, but it’s beyond doubt that Switzerland is bound by the convention without the benefit of the statement. 2011 International Law Commission found a middleground which is to look at the intention of the state making the reservation. guide to practice on reservation. Guideline 4.5.3: the intention is established looking at all the empirical data you have. Each state can decide whether it is bound or not by the treaty. Without prejudice to the decision of an international court. Guideline 3.24. Grounds for invalidity and invalidation The grounds of which you can invalidate/suspend a treaty are exclusive. There are also different grounds for invalidation (a state is entitled to invoke a particular ground to then invalid the treaty). Invalidation of consent to be bound (something went wrong with the way I expressed consent): ● Article 46 is about provisions of internal law regarding competence to conclude treaties; Article 46 - Vienna Convention on the Law of Treaties Provisions of internal law regarding competence to conclude treaties 1. A State may not invoke the fact that its consent to be bound by a treaty has been expressed in violation of a provision of its internal law regarding competence to conclude treaties as invalidating its consent unless that violation was manifest and concerned a rule of its internal law of fundamental importance. 2. A violation is manifest if it would be objectively evident to any State conducting itself in the matter in accordance with normal practice and in good faith. 5 CASE: Cameroon v. Nigeria 2002 - International Court of Justice Nigeria claimed that an agreement signed by its head of state, but it should have gone through the military council (fundamental rule, violated); The violation was not manifest in international law and it would mean that other states would have to follow the domestic law of the other side. ● Articles from 45 to 50; ● Articles 51-52 on coercion; ● Article 53 on treaties conflicting with a peremptory norm of general international law (“jus cogens”) ; Article 53 - Vienna Convention on the Law of Treaties A treaty is void if, at the time of its conclusion, it conflicts with a peremptory norm of general international law. For the purposes of the present Convention, a peremptory norm of general international law is a norm accepted and recognized by the international community of States as a whole as a norm from which no derogation is permitted and which can be modified only by a subsequent norm of general international law having the same character. If a treaty goes against jus cogens, it is void. Termination or suspension ● art. 60 : Termination or suspension of the operation of a treaty as a consequence of its breach. Article 60 - Vienna Convention on the Law of Treaties 1. A material breach of a bilateral treaty by one of the parties entitles the other to invoke the breach as a ground for terminating the treaty or suspending its operation in whole or in part. 2. A material breach of a multilateral treaty by one of the parties entitles: (a) the other parties by unanimous agreement to suspend the operation of the treaty in whole or in part or to terminate it either: (i) in the relations between themselves and the defaulting State; or (ii) as between all the parties; (b) a party specially affected by the breach to invoke it as a ground for suspending the operation of the treaty in whole or in part in the relations between itself and the defaulting State; (c) any party other than the defaulting State to invoke the breach as a ground for suspending the operation of the treaty in whole or in part with respect to itself if the treaty is of such a character that a material breach of its provisions by one party radically changes the position of every party with respect to the further performance of its obligations under the treaty. 3. A material breach of a treaty, for the purposes of this article, consists in: (a) a repudiation of the treaty not sanctioned by the present Convention; or (b) the violation of a provision essential to the accomplishment of the object or purpose of the treaty. 4. The foregoing paragraphs are without prejudice to any provision in the treaty applicable in the event of a breach. 5. Paragraphs 1 to 3 do not apply to provisions relating to the protection of the human person contained in treaties of a humanitarian character, in particular to provisions prohibiting any form of reprisals against persons protected by such treaties. Specially affected state if the breach involves conduct that crosses its boundaries. Specially affected states can invoke material breach to suspend the operation between the two states. 6 approves this Protocol or accedes thereto after the conditions set out in paragraph 1 above for entry into force have been fulfilled, this Protocol shall enter into force on the ninetieth day following the date of deposit of its instrument of ratification, acceptance, approval or accession. 4. For the purposes of this Article, any instrument deposited by a regional economic integration organization shall not be counted as additional to those deposited by States members of the organization. Article ‘Bush kills global warming treaty’ - the Guardian, 29 March 2001 The position of the US was clear as there was an official declaration stating they were not willing to be bound by the Kyoto protocol. The US developed such a view in a way that might be seen as contradictory, but it actually isn’t, as states change their administration over time and have different attitudes towards certain issues. It is a normal thing to have changes within the states. At the very beginning there was no strict opposition to the Kyoto protocol (in fact they signed it). Consent had to be demonstrated with the adoption of internal law, which shows the intention of the states to be an actual party to the treaty. The decision is expressed with the signature, but it is finalized with internal actions. What does the signature actually stand for, then? Good faith always plays a key role, as it is a principle within international relations which requires states not to defeat the object and purpose of a treaty, especially if you have presented your signature and showed your intention. Other states might expect for you to act upon your previous decisions. We should not consider liability, as it is not a breach of anything, but the level of good faith of state, trust and reputation are fundamental; social sigma works at the level of good faith. Other states might not trust you anymore as you’re seen as inconsistent. The signature phase is important as a moment where you can convince other states of the importance of the treaty and provisions. The way the formation of the treaty was made, it has the intention to make the process long enough to allow states to change their mind. States can withdraw their signature. States are masters of their own faith. The way the international society is formed, is kind of anarchic as there’s no higher authority judging, unless they give consent to it. Internal issues, actions and dynamics are not relevant to the outside (as stated in the Vienna Convention as well). When the organ of a state breaches international law, the overall country is considered to be responsible. The fundamental principle is good faith, present in different areas of international law. It has to do with the behavior of states. The moment of signature of a treaty is fundamental as the state representative presents the will of the state to be bound by the treaty. All the other states expect the state to ratify the treaty (solemn process). However, the non-fulfillment and non-ratification of the treaty are not legally enforceable, because there was a position of good faith where all the states rely on the fact that you’ll act upon your signature, bus since we’re only at the beginning of the process, no state could theoretically bring the non-fulfillment before a court (differently from national law). Kyoto Protocol 1997 It entered into force in 2005, when the states had only signed it. It is normal to have a moment of signature before the ratification process and the entry into force. It is also normal for multilateral treaties to have a number of ratifications preceding the entry into force of the said treaty. You want to have certainty on the fact that the key players are willing to follow the treaty. Signature can be withdrawn if the state changes its mind, due to a change in administration. You can do such a thing, according to state practice. It is important that the other participant states are aware of this change of mind (Germany tried to force the US to go back to the decision and it couldn’t bring them before the International Court of Justice). 9 Formally speaking, the US could not withdraw from the agreement, as it was not even a party to the treaty. Paris agreement 2015 From 2009 they began to see if they had to replace the Kyoto protocol. There was an extremely debated discussion among states about the options. As an outcome, the Paris agreement was adopted in 2018 and it is part of the UNFCCC (United Nations Framework Convention on Climate Change). The issue in this case is different: the process is not as signature level anymore as states are far from that phase. Therefore the withdrawal analysed is not the one of the signature, but of the treaty itself. The possibility of withdrawal from the treaty already entered into force was due to the change in administration in the US, as the Trump administration has always stated its intention to withdraw from the Paris agreement. It is not easy to withdraw from treaties. The treaty entered into force on the 4th november 2016. It was quite early and the earlier you see the entry into force, the broader the consensus around it is. The agreement of the treaty was so debeated that at that point it was seen as the only way to replace the Kyoto protocol. The provision dealing with the withdrawal from the Paris agreement is contained in art. 28. Article 28 - Paris Agreement 1. At any time after three years from the date on which this Agreement has entered into force for a Party, that Party may withdraw from this Agreement by giving written notification to the Depositary. 2. Any such withdrawal shall take effect upon expiry of one year from the date of receipt by the Depositary of the notification of withdrawal, or on such later date as may be specified in the notification of withdrawal. 3. Any Party that withdraws from the Convention shall be considered as also having withdrawn from this Agreement. On the 4th of August 2017 the Trump administration wanted to withdraw but it was too early according to the provision. Statements on the will to get out of the agreement were made and were delivered to the secretary general of the UN as soon as it was possible to do so. The US could not withdraw from the agreement yet. The United States filed its intent to withdraw at the earliest possible date, on November 4, 2019. After the one-year period, on November 4, 2020, the U.S. formally withdrew from the Agreement, on the day following the 2020 U.S. presidential election but rejoined the agreement as soon as President Biden took office. Re-joinment is dealt with in article 21. Article 21 - Paris Agreement 1. This Agreement shall enter into force on the thirtieth day after the date on which at least 55 Parties to the Convention accounting in total for at least an estimated 55 per cent of the total global greenhouse gas emissions have deposited their instruments of ratification, acceptance, approval or accession. 2. Solely for the limited purpose of paragraph 1 of this Article, "total global greenhouse gas emissions" means the most up-to-date amount communicated on or before the date of adoption of this Agreement by the Parties to the Convention. 3. For each State or regional economic integration organization that ratifies, accepts or approves this Agreement or accedes thereto after the conditions set out in paragraph 1 of this Article for entry into force have been fulfilled, this Agreement shall enter into force on the thirtieth day after the date of deposit by such State or regional economic integration organization of its instrument of ratification, acceptance, 10 approval or accession. 4. For the purposes of paragraph 1 of this Article, any instrument deposited by a regional economic integration organization shall not be counted as additional to those deposited by its member States. It is the provision stating the entry into force of the treaty, just as a brand new state. The instrument to do so is called ‘instrument of acceptance’. It was deposited to the UN secretary general on the 20th of January 2021, through an executive order of the US administration. The US is effectively part of the Paris agreement from the 19th of February 2021 (30 days). From that moment on, the US is fully back on track with the obligations imposed by the treaty. Customary International Law Customary international law is made by drafts and other officially non binding sources. Many times drafts don’t become conventions because it’s hard for states to agree. Sometimes they also become the basis for hard law, but soft law is important as well. Usually binding and not binding texts are not that different. In 2018 there was a draft conclusion on the identification of customary international law through commentaries. It was very welcomed by the international community, since it helps to better understand the intricacies of this legal source. The names of these sources varies depending on the willingness of the states to comply (e.g. ‘drafts’ have hope to become binding) Art. 13 UN Charter: The General Assembly has the task to begin the codification of customary international law, including also provisions of its progressive development. Article 13 - Charter of the United Nation 1. The General Assembly shall initiate studies and make recommendations for the purpose of: (a) promoting international cooperation in the political field [separate study] and encouraging the progressive development of international law and its codification; (b) promoting international co-operation in the economic, social, cultural, educational, and health fields, and assisting in the realization of human rights and fundamental freedoms for all without distinction as to race, sex, language, or religion. 2. The further responsibilities, functions, and powers of the General Assembly with respect to matters mentioned in paragraph 1 (b) above are set forth in Chapters IX and X. CASE: Paquete Habana 1900 - International Court of Justice To explore the methodology of applying customary international law ● The US seize two Cuban fishing vessels during the Spanish-American war, seeing them as enemy ships (despite the crew not even knowing war had broken out ● The owners claim the US had no right, even in wartime ● The US Supreme Court finds fishing vessels to be exempt from seizure in wartime, relying on ○ English royal decree from XV Century ○ Similar decrees from France, US etc ○ A number of treaties between various countries ● It therefore concludes the seizure to be unlawful and demands reparations to be paid. 11 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. Recognition of international customary law The decisions of courts and tribunals have relevance for the sake of recognition of international customary law as they establish the existence of a certain custom. When a judgment is rendered, the decision itself is an element both of practice and opinio iuris. there’s a dual function. Judges are looking for the rules and sometimes they’re also in search of something else in order to apply the rule to the case to resolve it. Looking at the terminology of the International Courts of Justice, “regard may be had, as appropriate, of decision of national courts concerning the existence and content of customary rules” as subsidiary means for the determination of the rules of customary international law. Particular custom A rule of customary law can also be regional, it is applied only to a limited number of states, in their relationship. It can bind only a few as two states and the two states must have accepted the practice as law among themselves. Look at the International Court of Justice, the dispute regarding the navigational and related rights (Costa rica v. Nicaragua) 2009: This case is relevant because it talks about the custom established potentially between these two states. The issue was essentially the existence of a practice dating back to 1540 which was allowing the habitants of the Costa rican back of the San Juan river just for subsistence purposes. At some point the case was brought to the International Court of Justice and the question was if the practice could be seen as customary international law (position of costa rica), granting a legal right or not (nicaragua). Practice was acknowledge by both parties, but they were looking for opinio iuris in order to establish customary international law. Tolerance by Nicaragua was seen on one end as opinio iuris, on the other hand, Nicaragua said that it did not want to establish a legal right, not a recognition of law. It was a solution of mere tolerance in the eyes of Nicaragua. One state has relied on tolerance for many years, in fact the reasoning of the International Court of Justice was that “The failure of Nicaragua to deny the existence of a right arising from the practice which had continued to be disturbed and unquestioned over a very long period, is particularly significant”. The Court concluded Nicaragua must respect, as a customary right, subsistence fishing by the inhabitants of the Costa Rican bank conducted from that bank. This little opposition amounts to a breach of good faith. The custom was in the end established as customary right. Time A short period of time is not an impediment to the formation of a new rule, but it cannot be too short. There’s no such thing as “instant custom”. Paragraph 73 of Continental shelf case: ”even without the passage of any considerable period of time, a very widespread and representative participation in the Geneva Convention on the continental shelf might suffice of itself, provided it concluded that of States whose interests were specifically affected”. Example of a currently emerging customary rule: Sea level rise and baselines ● ILC Study Group on Seal Level rise (i) Based on the above, it is early to draw, at this stage, a definitive conclusion on the emergence of a particular or regional customary rule (or even of a general customary rule)» of international law regarding the preservation of baselines and of outer limits of maritime zones measured from the 14 baselines. Prima facie, based on the available data as set forth above, the application of the requirements provided by the Commission's conclusions on identification of customary international law (2018) in conclusions 4 to 8 (and 16) for the material clement of the custom, it can be concluded that - at least for the Pacific and South-East Asia regions - there is State practice (supported by practice of international organizations), " which: includes both physical and verbal acts,"» as well as inaction; has the form of diplomatic acts and correspondence, conduct in connection with resolutions adopted by an international organization or at an intergovernmental conference, conduct in connection with treaties, executive conduct, including operational conduct "on the ground". and legislative and administrative acts; and is widespread and representative among the States of these regions, as well as consistent. It is more and more frequent. Nevertheless, the existence of the opinio juris is not yet that evident, although the general reliance of the conduct of the respective States in their practice (as mentioned) on the grounds of legal stability and security is an indication in that sense. In order for a definitive conclusion to be possible, more submissions by Member States to the Commission in response to the request included in chapter III of its 2019 annual report are needed. There is practice, which is regional, supported by practice of international organization; It has to be objective, representative, consistent. We also need to have an analysis of te existence of opinio iuris, which is trickier, as it is not that evident yet. States even in their practice, want to maintain stability and predictability of their maritime zone. Even though states are losing territory, they want to maintain stability. Legal fiction: The baseline is frozen. In order for a definitive conclusion to be possible, more submissions from states to the commission are needed. States might align, realizing that rules contained in the law of the sea convention are not applicable anymore because of climate change. These three areas of analysis are also applicable to statehood (are states still such even though they loose territories). Persistent objector Conclusion 15 - Draft conclusion of identification of customary international law The time factor is relevant, as a reasonable amount of time must pass. An acceptable objection is one which is established during the formation process. You cannot decide to object a rule, when it is already applied, formed and matured. This happens because of good faith. If a state at the very beginning of the process of formation of a new customary rule, expresses its opposition to that rule, once the rule has come into being, that rule is not opposable to it. You need to follow rules in order to express tour opposition in a licit way. The expression of opposition must be clear and unambiguous. If it was expressed only domestically, it would not be considered unambiguous, as it is not clear to the outside. It needs to be clear to the international community. The formation and the participation of states in it, is a guarantee, as it means that the state is willing to follow that rule. States decide weather or not a rule has been breached in their relations. In that case at first there’s a self-assessment in front of a judge, later there’s a response with the process included in article 60 of the Vienna Convention. 15 Relationship of compatibility between sources of international law CASE: International Court of Justice North Sea Continental Shelf Case 1969 The dispute was related to the delimitation of the continental shelf between Germany, on the one hand, and Denmark and the Netherlands, on the other, before the International Court of Justice. The applicable law at the time was a stratification of treaties and conventions among which there was the Geneva Convention. The relevant provision was article 6. There was a problem of delimitation of the continental shelf (part of land which extends up until 12 nautical miles). The easy case is when you have a clear baseline, you use the equidistance method, upon which you’re creating the boarder of states. When it comes to the three states at issue, the coast has a convex form, therefore the case is harder to solve. Essentially you pull the lines inwards in a way which is at disadvantage for the state in the middle. The Federal Republic never ratified the convention, while Denmark and the Netherlands had ratified it as well, therefore they were active parties. The 1958 the Geneva Convention entered into force in 1964 and received 39 ratifications at the lime of the analysis by the Court ● The Federal Republic only signed the Convention but never rafified it so it did not become a Party ● According fo Denmark and the Netherlands, the Federal Republic, with is behaviour in public statements and proclamations, has assumed anyway the obligation or accepted art. 6. Donmark and the Netherlands say that they have relied on this attitude. The International Court of Justice stated that › it is not lighily to be presumed that a State which has not ratified the Convention, has somehow become bound by it anyway. ● Art. 6 allows for reservations; it means that is was not fully-fledged. ● In the past the Federal Republic has never accepted (with conducts or declarations) this rule so that now il could not deny its applicability without contradicting itself; ● Art. 6 Is not opposable to the Federal Republic and if does no correspond to customary law. Three scenarios were described in the judgement of the International Court of Justice: 1. Declaratory effect: the treaty provision is declaratory of a pre-existing custom. Codification convention is adopted at a point in time where the custom is already mature and it has consensus among states. 2. Crystallization: the treaty provision crystallises a custom in the process of formation; The treaty was pushing for the maturity of the custom. It was thanks to the treaty that the custom finalised its process of formation. 3. Norm-creation: the treaty provision creates a new customs. General principles of law They’re very vague as a category. Principles of Good faith and Equity are two of the most broadly used. They’re certainly used by international courts and tribunals when there are gaps in law as completing means and usually not used in isolation. ● Article 38 International Court of Justice Statute: International Court of Justice Can use general principles of law (recognized by developed countries) ○ Problem of division between developing/developed countries. ● These principles are common to the legal systems of the world; ● They’re used by courts with other main legal basis. 16 adequate compensation, because otherwise the other state would act in a reciprocal way. From property rights it developed to human rights). External sovereignty Independent states have external sovereignty as well: they can make their own foreign policy choices. There are limits to external sovereignty (ex: being recognised as a state means that you have not to use force in international relations according to the 2(4) UN Charter or being bound in some different way). Criteria for statehood The 1933 Montevideo Convention (reflecting customary international law) was a regional convention and a starting point for a discussion on the elements of Statehood. It is still considered the first point of reference when it comes to the consideration of the main points for a State to be considered as such. According to this convention, a state has to fulfill four elements: 1. Permanent population It is ruled by the government in charge and can be comprised of different ethnicities and minorities. The minimum size of population is not actually prescribed. The principle of self determination of the people became very important for the recognition as a State. A clear example is the de-colonisation. States can asses the existence of other states, as they have to recognize you within the community. There’s international cooperation, there’s trust and there are mutual relationships. Also international organisations have to recognise states. As always there’s no higher authority, no certifier, so the way a state is seen is key. It is an area of factual effectiveness should operate: legally if you have these elements you should be a State - recognition would have a bearing only on the political dimension. They have to come up with a criterion to assess the existence of a state. This is another area where effectiveness plays a key role. When you can prove those requirements. 2. Defined territory The territory has to have settled borders, even though there could be uncertainty (e.g. territorial disputes like the North Continental Shelf case or small disappearing islands), but it does not prejudice the integrity of the state. The minimum size of the land is not prescribed and it encompasses the landmass, internal waters, territorial sea and the airspace. 3. States have to be independent and the government has to be effective and stable If the State is not effective, the government does not have stable power over the population and the public order. Sometimes it is a very stretched concept as pragmatism, effectiveness and legitimacy are fundamental aspects. There has to be some sort of balance between pragmatism but it cannot be stretched to the extent that you recognize as a state something that has been established unlawfully. Some states can feel not ready to recognise de facto sates, which are actually not de iure. That a government is effective means that “a State has to be at least able to maintain public order and minimum substantial coexistence between those governed” (Tinoco arbitration in 1924: Tinoco was a leader of a revolutionary party which was governing in the Tinoco arbitration in effective terms Tinoco could have the factual capacity of governing, meaning a congress legislating and judges adjudicating). 19 Nevertheless the state has to be independent from other States: statehood does not cease to exist because of foreign occupation (in the past it did), civil war, insurgence or disappearance of a territory. 4. The government has the capacity to enter into relations with other governments It is a very problematic matter which also deals with recognition. Process of formation (factual or legal) of States and conquest (legal) succession of States Usually a new state is not created from nothing, but from a process of transformation. For example: ● by dismemberment, dissolution (e.g. former Yugoslavia, former Soviet Union, former Czechoslovakia); ● by succession (e.g. Kosovo or South Sudan); ● by decolonisation (e.g. from 60s many African States from British rule). “ looking back in anger” is an expression which includes the fact that new states benefited from the tabula rasa, luckily; ● by merge (North Yemen and South Yemen in 1990) or incorporation (East Germany incorporated in West Germany in 1990); ● by division (British government adopted Indian Independence Act in 1947 to divide Indian from Pakistan). When you have succession of states, the biggest problem you have to deal with is the applicability of treaty rules to the new entity. It is a problem regarding only treaties, not customs for example, as it involves the consent of the previous-existing states (signature, ratification etc.) The work of the codification of ILC connected to the The Vienna Convention on Succession of States in Respect of Treaties was very controversial, as it is also highly political as a matter. These rules have to be looked at as a point of reference, they are not definitive rules even though they’re binding as a Convention. When it comes to the ratification, it has been done by a low number of states. Independence and Global administrative law: is there an entity beyond the States? Cassese has a very national law approach. States have a lot of networks: States establish independent creatures with their own rules and the possibility to create laws. Non-compliance committees adopting recommendation still need states to send recommendation to them. States still may have their power back; it looks like international bodies have a lot of independence and they’re obscure, but still the states are the masters of their functioning. At the end of the day their life depend on state’s sovereignty. These are still states: ● States financially insolvent (Greece); ● States in exile (islands States loosing their territory); ● Puppet states (Manchukuo, Transnistria and North Cyprus). Secession: two opposing scenarios Problems happens when there’s no consent of the previous state for secession. South Sudan Kosovo ● After two civil wars South Sudan (SS) seceded from Sudan on 9 July 2011 after a referendum in early 2011; ● 11 July 2011 SS was admitted to the UN; ● It was recognized by 80 States, including Sudan itself. This was quickly followed by all major powers (China, USA, Russia); ● A South Sudanese statehood was desirable. ● Kosovo declared independence from Serbia in 2008; ● In 2011 K was recognized by 76 States (not including major powers such as China and Russia and especially Serbia); ● International Court of Justice advisory opinion in 2010: declaration did not violate 20 rules of international law but did not pronounce on the statehood of Kosovo; ● Path still long: other elements of practice and opinio iuris have to be waited for. Recognition Recognition is not a further requirements for the acquisition of internal legal personality. It is a unilateral act in international law. Not every unilateral act should be recognised as holding legal effect. Legally speaking, we should not characterise states on the basis of their power. There are legal effects and political assessments which lead to certain political effects. E.g. Taiwan is not regognised by China and is not a member of the UN because of this opposition Recognition had a double face: it could be interpreted as a constitutive element or just a declarative factor. It’s more important from a political point of view than the legal one. The legal effect of an act of recognition: You cannot change your mind on the recognition of a certain state (needs to be reliable and stable), based on the good faith principle. Process of recognition: ● Establishing an introduction, that confirms that you are recognising that entity as a new state in the international arena; ● Starting diplomatic relations, meaning that you’re using international law to keep the channel open between the two. Implicitly you are still referring to the state. Recognition essentially operated for the majority of legal doctrine on the political level. There are many ways to shown explicitly or implicitly that you are recognising a State. Recognition is not only something that has to do with international relationship or politics, it can be important in the state responsibility field. The State might want to recognise a situation of fact, or confirm the legality of the process of formation of a state, which is why the observer of the intention of the recognising state has to investigate very well. Since there’s atypicality, this act might also have the form of acquaintance, tacit behaviour. It might be orally expressed, or in written form. If it just recognised internally, it does not have the same weight. The recognition of a State brings legal obligations to the State recognising the other. There are two theories: 1. Declaratory theory of recognition: Article 3 - Montevideo Convention "The political existence of the state is independent of recognition by the other states”. It stands in conflict with the (old) constitutive theory of statehood: a state exists only insofar as it is recognised by other states. If declarations of recognition are not necessarily an element to have statehood, then a declaration is a vehicle of international effectiveness. The more it is recognised, the more it is seen considered and recognised to enter into relationship with others. It can consolidate international legal personality. 2. Constitutive theory of recognition: a state is considered as such only if it’s recognised. In the moment in which you recognise another entity as a State, there is the legal presumption of the permanence of the recognition, the presumption and the expectation that you will keep recognising it as a state. 21 ● 1963 Organisation of African Unity. The role of international organisations is to promote cooperation, developing the international law. They’re created by states in order to exercise a task or function that states are not able to perform themselves. International Organisations as legal subjects separate from Member States when it comes to conclusion of treaties or official missions by staff abroad. Intergovernmental cooperation ● sovereign states; ● consensus or unanimity as a rule; ● decisions are applicable in the domestic legal system through national implementing acts; ● the organisation does not rise above Member States but remains between its members; ● It is more about cooperation, rather than integration. Characteristics of International Organisations ● Governed by public international law If governed by domestic law, the organisation is called non-governmental organisation (e.g. Greenpeace, Amnesty International etc.). ● Fluidity of categories, however as a minimum: ○ created between states; ○ on the basis of a treaty; ○ with a distinct will: the international organisation possesses at least one organ which has a will distinct from the will of its member states otherwise is is a mere union or association of states without independent international legal personality and organs, and created on the basis of non-binding political agendas. From associations to International Organisations: e.g. Conference on security and cooperation in europe (csce) in Helsinki in 1975 for the first time. There was a progressive institutionalisation over time with the creation of organs and led to the creation of the Organisation of Security and Cooperation in Europe (OSCE) in 1994. It is an organisation even if it has soft law as a basis. ● Functions: economic; peace and security ○ World Trade Organisation; ○ North Atlantic Treaty Organisation. ● Membership: universal or regional ○ NATO; ○ EU; ○ UN; ○ Council of Europe. ● Intergovernmental or supranational; ● Political vs technical ○ UN vs World Trade Organisation. Specialised agencies as international organisations Also non-fully fledged recognised states can be part of the agencies (e.g. Kosovo). ● Of the UN: World Health Organisation (WHO; International Labour Organisation (ILO); International Maritime Organisation (IMO); Food and Agriculture Organisation (FAO); United Nations Educational, 24 Scientific and Cultural Organization (UNESCO); International Civil Aviation Organisation (ICAO); International Monetary Fund (IMF). ● Not of the UN: International Agency for Atomic Energy (IAEA); World Trade Organisation (WTO). Tension between two opposite poles You have to establish your distinct will, but sometimes there’s such a variety of that that it is not always a distinct will (e.g. unanimity means that every agreeing state agrees, therefore the goal is not distinct). The distinct will starting point is also the rationale when it comes to the principle of functionality. There’s tension between the implied powers doctrine and the principle that international organisations and their organs can only act on the basis of powers conferred to it (principle of attribution). The principle of attribution respects sovereign interest, as states can keep control. Sometimes organisations get too much power and states do not like it anymore, therefore they exit. Sometimes organisations use implied powers, the more of them you’re highlighting, the more distincted will you’re highlighting. The organisation is more independent than what it looked at first. It is important to talk about implied powers, because they’re fundamental to allow flexibility and the further development of the organisations and their goal. Things change with time, therefore situations develop and the implied powers doctrine helps international organisations to adapt. However, doing this you’re implying something for the general aim of the organisation but it might seem like the attribution of powers is not respected. Example: ERTA principle of EU Law We have to interpret treaty making power of the EU as being substitute to the states, as in certain aspects EU law is governing the issue. The interest of the international community has to face the interest of the sovereignty, which means that the international organisation has to face the will and interest of Member States. Law of international organisations - Three dynamics 1. Relationship between the international organisations and the member states (theory of functionalism): powers of the international organisation, financing it; 2. “Internal” relations: relations between organs of the International Organisation; relations between the international organisation and its staff; 3. Relationship between the International Organisation and the outside world: treaty making power of the international organisation(e.g. treaty making power).; responsibility is an issue as well (e.g. peacekeepers breach humanitarian laws, who’s responsible?) There’s the 1986 Vienna Convention on the law of treaties between states and international organisations or between international organisations, is not in force as not ratified enough. This means that states do not want to accept the codification of such a matter, that would tie them to the organisation in an official and codified way. They would have to act accordingly to the Convention. Distinctions of international institutions ● Classical international organisations (governed by international law): subsidiary organs created by them; When it comes to multilateral treaties (e.g. UN), they have their own institutional framework established within them. These treaties do not just talk about material provisions, but there’s an institutional establishment (e.g. Mops/Cops); ● Union or association of states; 25 ● Cops (conference of the parties)/Mops(meeting of the parties) and secretaries established within treaties: they aspire to be international organisations but tehy’re not yet. They’re subsidiary bodies established within multilateral treaties, made of experts. The autonomy of international organisations intensifies when: ● The Organisation operates through bodies made up by “individuals sitting in their personal capacity”; ● When the organs of the organisations are allowed to adopt binding acts, especially if adopted through a majority vote; ● The the organisations have their free own financial resources not paid my the member states; ● The International organisation has a proper legal order; ● The international organisation also includes a body that represents the people of the member states. International organisations law ● The 1986 Convention on the Law of Treaties between International Organisations and International Organisations and States - not yet in force; ● International Law Commission codification on the responsibility of international organisations for internationally wrongful acts: 2011 Draft Articles. International legal personality of the organisation There are many different theories when it comes to the existence of an international legal personality of the international organisation. Will theory It is based on the will of the founding states; An international organisation has international legal personality when such personality is wanted by the states (contained in the founding treaty). The theory in itself is problematic, because the treaty does not really include the idea of international legal personality. Article 104 - UN Charter The Organization shall enjoy in the territory of each of its Members such legal capacity as may be necessary for the exercise of its functions and the fulfillment of its purposes. It is important to see the difference between international and domestic legal personality. The article does not even mention international legal personality, it just mention legal personality broadly. It might refer to domestic legal personality and it is extremely goal-oriented. The international legal personality becomes something that exists at the level of relationship of the organization, other organizations or different states. The focus is not the private law and contractual capacity of the organization (domestic), but it is the treaty relationship between the organization and another party (international). Recognition theory Then maybe international legal personality comes from recognition as it plays an important role also in legal effects. If the majority of states recognises the legal personality of the organisation, even though it is not explicit in the treaty, it can be recognised as having such a personality. When the organization has the minimum criteria to be recognised as such, the international legal personality should follow. Even in this case, though, this theory does not really comply with the idea that states are the power-retaining identities in treaties. The issue of reparation for injuries deals with international legal personality. 26 a fellow mate realised that they could have had consular assistance. Article 36 establishes an obligation of notification (…if he so requests, the competent authorities of the receiving State shall, without delay, inform the consular post of the sending State if, within its consular district, a national of that State is arrested or committed to prison or to custody…). 24 hours before the execution date, Germany decided to sue the USA before the International Court of Justice. They asked to stop the execution of the death sentence and the International Court of Justice issued an order. But, the order of the International Court of Justice was not fulfilled and the two brothers were executed anyway. Looking at paragraph 77 and taking into account different points of view, we can understand if the right is granted to the state or the individuals. The majority of legal doctrines agree that individuals are not subjects of international law, but they can still be protagonists. The LaGrand case is fundamental because it was one of the first times the idea of an individual right being granted. The USA was against this idea, because the Vienna Convention was dealing with relations between states, not among individuals. The important expression is the one at the beginning, where the provision is stated to help the consular function, to facilitate the task undertaken by state organs. After all, even in cases of Human Rights protection, the provisions are formulated to address states as having synallagmatic relationships, rather than individuals. The International Court of Justice in some way accepted the idea that individual rights are created as well and it was the first time that a reference to individual rights was made by an international court. We could say that certainly individuals are prominent, but Klabbers says that it is more important to create these international legal rules for individuals rather than discussing if individuals themselves hold certain rights or not. Non Governmental Organisations They cooperate internationally and cross boundaries, but the applicable law is domestic. In this scenario they’re not to be considered international organisations. They have a crucial role in the development of international law. First of all, the discussion on NGOs goes hand in hand with globalisation, but their role is also institutionalized. Art 71 UN Charter also mentions NGOs ì, it formalises and codifies the importance of NGOs. When conventions are negotiated, NGOs have an important expert advisory role in multilateral situations (e.g. multilateral environmental agreements). Amicus Curiae: a document reporting an advisory opinion. It is sent to the tribunal and reported. Holy See It is a subject of international law, which has the right of legation and celebrates concordats with States. If you look at the Lateran Treaty, Italy and the Holy See has diplomatic relations established, as well as it does with other states (e.g. apostolic nuntio: acts as an ambassador). International Committee of the Red Cross It is an interesting example, as it is under Swiss law, but historically it has been seen as a subject of international law, as having relations with different states and organisations. It has treaty-making power. 29 Other entities: Multinational enterprises Companies had been given the power to sue states under bilateral investment treaties and therefore they could also be seen as holding a limited international legal personality. A mention to Global Law At some point, essentially from the area of administrative law, at the level of transnational relationships, the adoption of international standards (e.g. ISO standards), the idea of a law above states developed. Transnational law, according to its founders is at the same time national, international and transnational in carachter. It is a new approach to law, a new body of law independent from any other type of law, composed of different regulatory regimes (e.g. networks of NGOs, non-state actors, organisations setting up standards). It is out of the states’ reach. The consent of state does not matter anymore. Example: Basel committee on banking supervision. One of the last european environmental law society meeting was indicating this new approach and the title was embracing the global idea. The relevance of consent of states nowadays was discussed as now everything operates at a higher level. In fact global organisation are not completely independent, the state is still the master of its own faith. Settlement of international disputes Law determination and application in interstate relations and instate relations The issue now is he way international courts and tribunals deal with disputes within the international law community. We first have to look at the UN Charter, specifically at chapter 6. At the international law level, we need to first establish the existence of a legal dispute. Legal dispute: a disagreement based on a claim by a state that another state has breached binding international law and therefore an obligation (interstate relation). The interesting thing about legal disputes in international law is that you need to find the opposing point of view of the other state. On many levels, legal disputes are also political; it is to be considered only political when the state does not refer to a breach of international law and therefore the claim is not grounded on international law. Chapter 6 of the UN Charter is called pacific settlement of disputes. We need to distinguish between diplomatic means of interstate dispute settlement and judicial or arbitral means for interstate disputes. Diplomatic means of settlement of international disputes Article 33 - UN Charter 1. The parties to any dispute, the continuance of which is likely to endanger the maintenance of international peace and security, shall, first of all, seek a solution by negotiation, enquiry, mediation, conciliation, arbitration, judicial settlement, resort to regional agencies or arrangements, or other peaceful means of their own choice. 2. The Security Council shall, when it deems necessary, call upon the parties to settle their dispute by such means. Article 37.1 - UN Charter 30 1. Should the parties to a dispute of the nature referred to in Article 33 fail to settle it by the means indicated in that Article, they shall refer it to the Security Council. The obligation to solve the disputes is there only if they endanger international security and you have to do so in a peaceful way. Since the beginning of the functioning of the UN, there has been the willingness of the UN organs to make chapter 6 better. The Security Council has two main means of actions: force and the complementary role contained in chapter 6. When the issue starts to be dealt with with the provisions contained in chapter 7, it means that the situation has already escalated. The overall aim is to not get there and try to solve the dispute with peaceful means. 1. Negotiation: Exchange of communication, performed correctly when both states formulate separate statements regarding the issue and are able to find a compromise in good faith. If the delegation left the conversation out of the blue, without creating space for compromise, it would be seen as a behaviour not in good faith. From the judgment of the continental shelf, the International Court of Justice states that parties under the obligation to enter into negotiation with the view to arriving at an agreement, they’re under the obligation so to conduct themselves that the negotiations are meaningful which would not be the case when one of them is too stubborn to look for a compromise. The element of good faith changes what is to be considered effectively a negotiation and what is not. 2. Good offices: The expression "good offices" is used to denote a procedure whereby a third party (individual) or State either on its own initiative or upon request seeks through diplomatic means to bring the Parties to the disputes to a conference table to resume direct negotiations or to agree on a method of pacific settlement with the view to bringing an end to the existing conflict. They just put the two parties in communication, without playing an actual role in the content of the discussion. "Good offices" implies a more discreet action, limited to initiating direct negotiations between the parties concerned without active participation. 3. Mediation: Differently from Good offices, the mediator generally takes a more active part in the discussion and is often expected to suggest some solutions to the problem. The third party also tries to mediate and take part into the mediation. Iran vs USA for the hostage crisis, the issue was settled only with the help of the algerian government. 4. Commission of enquiry: (e.g. The Human Rights council mandated the establishment of a commission of enquiry of the facts in the territory of Ukraine). It is a commission of experts with personal capacity that clarify factual points or look for certain technical aspects of a certain situation. The aim is to clarity facts to be used in future legal proceedings. It is a way to collect evidence. States do not usually accept the acts of such a commission as it is key to international disputes as collection of evidence. The outcomes of this commission are not binding, as they’re not judges, but only experts, however the higher the authority establishing the commission is, the higher the relevance of the outcome and the more states will be down to follow the outcomes of the commission. 5. Conciliation commission: It is a commission which proposes solutions to the issue addressed. it is the one more resembling to a situation of an arbitrary committee, but in this case the outcome is not binding for the parties. 31 If we look at the functioning of the ECHR, the functioning is different from the International Court of Justice. The ECHR has at least an extra additional organ to refer to, which is the committee of ministers. The Committee oversees the application of the judgment and checks the compliance by the state, taking all the possible measures for it. WTO system WTO system is self-contained: many times rules within the organization are based on treaties. Also trade counter measures are possible, as built-in. International organisation in which the rules for dispute settlement have been created within the system. A final report is redacted at the end of the proceeding and it goes back to the political organ (state representatives). In case of non-compliance there are counter measures. CASE: Gambia vs Myanmar The existence of a dispute between the two parties was established by the International Court of Justice, establishing the preliminary objection of Myanmar. They established that Myanmar had to be aware of the issue by disagreeing through statements. They breached the genocide convention and the importance of the rules breached is huge, therefore they should have been aware of the issue. The issue regarding Gambia was whether it was effected by this serious breach by Myamnmar or not and whether they had grounds to bring the issue before the International Court of Justice. It doesn’t matter because it is an erga omnes partes provision, therefore every contracting party to the convention has the possibility to invoke state responsibility. Responsibility of States for internationally wrongful acts; circumstances precluding wrongfulness injured States(s) and different types of international obligations Pathological phase: It’s the phase dealing with the legal consequences of breach of acts. It is super important because it discusses violation, but it is a general topic, meaning that specific areas might have their own system of legal consequences deriving from the breach. The responsibility for internationally wrongful acts has been discussed for many years, it is super challenging to codify, as of course states do not want to be bounded. In 2001 there was a codification, after 40 years of discussion. It deals with general rules (unlike WTO and EU rules, which have their own system of reaction). Distinction of Rules (primary and secondary) The distinction was established by professor Ago ● Primary rules: these rules can be customary or conventional. They comprise rules establishing obligations of states (e.g. rules of Law of the Sea, in relation to use ad bellum, rules establishing conducts); ● Secondary rules: these rules define the consequences of the breach of primary rules. International Law Convention Draft Articles on State Responsibility Sate responsibility deals with secondary rules. 34 History leading to the articles ● In 1949 the ILC selected the topic of State responsibility as one of its first 14 topics - selected from 22 suggested by Hersch Lauterpacht in a review for the ILC Secretariat - under its mandate to promote the progressive development and codification of international law. ● Work commenced in 1956 under the first Special Rapporteur, F.V. Garcia Amador. In the next 40 years he was succeeded as Special Rapporteur by Roberto Ago (1963-1980), Willem Riphagen (1980-1986), Gaetano Arangio-Ruiz (1987-1995) and, finally, by James Crawford from 1997 to 2001. ● The Special Rapporteurs produced 32 reports and the ILC provisionally adopted 35 Articles making up Part One (origin of State responsibility) between 1969 and 1980, and 5 Articles from Part Two (content, forms and degrees of international responsibility) between 1980 and 1986. ● Between 1992 and 1996, the ILC Drafting Committee worked on the rest of Part Two and Part Three (settlement of disputes), making it possible for the ILC to adopt a text with commentaries in 1996 which it aimed to finalise by the end of 2001. Between 1997 and March 2001, James Crawford produced 4 reports on the Articles and the Drafting Committee completed a provisional second reading of the Draft Articles, taking into account Government comments, State practice and jurisprudence. ● The work on State responsibility was finally completed in August 2001 when the ILC, after some forty years of work, adopted the Draft Articles on their second reading. The Articles were then submitted to the Sixth Committee of the General Assembly. The General Assembly subsequently adopted Resolution 56/83 (12 December 2001). Even the structural aspect of article has changed throughout time. The special rapporteur is the one in charge of leading the codification process within the international law commission. They also prepared in parallel with the reports, the report of the special rapporteur to which they give their own directions and propose new direction on the matter. Professor Ago was amongst the ones proposing to insert clauses on “state crimes” (former art. 19 dealing with international crimes of state, but it was deleted by states), but on the second reading it was deleted. Professor Crawford played a major role for the adoption of the articles as it was under his mandate as Special Rapporteur, the work on state responsibility was adopted. The texts adopted through the output of the ILC were sent to the general assembly which took notes of the articles adopted on second reading through a resolution. It was then recommended to the attention of governments. Liability vs. Responsibility Liability: state obligation to compensate for damage caused by its acts regardless the existence of an international wrongful act. In liability there’s no breach of any international rule, but it only deals with the reparation of the damages inflicted. Set of rules adopted in 2006 by the ILC on the Allocation of Loss on the case of Transboundary Harm arising out of Hazardous Activities ("Draft Principles or Transboundary Harm"). The issue has been developed into specialised regimes (with primary rules) of strict liability that include international funds to cover expenses (e.g. damages from oil pollution, marine environment, space activity). Material damage is a necessary element. State responsibility: it deals with issues regarding the breach of international rules. Articles on Responsibility of States for Internationally Wrongful Acts Article 59 - Articles on Responsibility of States for Internationally Wrongful Acts These articles are without prejudice to the Charter of the United Nations. 35 Article 1 - Articles on Responsibility of States for Internationally Wrongful Acts Every internationally wrongful act of a State entails the international responsibility of that State. Whenever there’s a wrongful act, legal consequences are triggered. The act can be an act, an omission or the fact that the state has not taken all the possible measures to avoid a certain thing to happen (e.g. hostage case). Article 3 - Articles on Responsibility of States for Internationally Wrongful Acts The characterization of an act of a State as internationally wrongful is governed by international law. Such characterization is not affected by the characterization of the same act as lawful by internal law. The act has to be regognised as wrongful under international law, not domestical. Article 2 - Articles on Responsibility of States for Internationally Wrongful Acts There is an internationally wrongful act of a State when conduct consisting of an action or omission: (a) is attributable to the State under international law; and (b) constitutes a breach of an international obligation of the State. In order to assess the breach of international obligations (the assessment is made by: judges of International Court of Justice, other states) two elements must be regognised: 1. Objective element: Violation of a rule binding for the state/breach of an international obligation (in force) ● Damage: material injury is not an essential element of wrongful acts; it might be an essential element sometimes, but it might depend on the article breached (e.g. aircraft flying in another’s airspace without consent is an international wrongful act, even when there’s no material damage. In this case the reparation the state would ask for is probably focus domre on the moral issue, other than monetary reparation, in order to reaffirm the importance of the rule as well); ● Fault (negligence or intention): it is not an essential element of wrongful acts. It depents on the content of primary rules and on the obligations deriving therefrom. ○ intention: e.g. convention against genocide requires a strong intention to destroy a certain group of people. In the Gambia vs. Myanmar they were so kneen on the preservation of evidence in order to keep track of the evidence, to prove the intentional character of the genocide ; ○ negligence: e.g. In the area of internatonal eviromental law, rules are established in a way were you have to show you have not been negligent. If the state adopts and implements rules to prevent certain enviromental impact to happen, this shows the effort in order not to breach the due diligence aspect of the rules. This happens with the no-harm rule. It is not about the result, it is more about the effort put in by the state. 2. Subjective element: Act has to be attributed to the state under international law. Attributable wrongful acts: 1) A wrongful behavior is committed by a state organ or agent (art. 4 ILC) - acts ultra vires are also attributable; 2) Conduct of individuals, or groups of individuals acting under the direction, control or instructions of the State (art. 8 ILC): ICJ judgment Nicaragua vs. U.S.; 3) Conduct of individuals to be considered as an act of the state if and to the extent that the state acknowledges and adopts the conduct in question as its own (art. 11 ILC) In the U.S. vs Iran case: In phase 1 of the case, some muslim students took as hostage members of the american embassy and by doing so Iran was found responsible for not having 36 What can third states ask when invoking responsibility? (e.g. Gambia vs. Myanmar) ● Termination of the act; ● Guarantees of non-repetition; ● The performance of the reputation in the interest of the injured state. Can the third state also take countermeasures? The matter is so controversial that the provision was not even formulated in countermeasures terms. The chapter does not preclude the right of any state non-direclty injured to invoke a state’s right to act with lawful countermeasures in order to put an end to the unlawful situation. There can be consequences to be considered unfriendly but with no countermeasure (retortion). The issue is still open to the practice and development of international law. Use of force and Sell-defence: humanitarian intervention: resolutions of the UN Security Council The prohibition of use of force in the UN Charter Ius Contra Bellum: Rules against war. They’re the rules upon which the UN Charter is built on, signed in San Francisco in 1945. These are the most important rules in international law but they are a limited number of rules. The most important one is article 2(4). Article 2(4) Article 2(4) - Charter of the United Nation All members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the Purposes of the United Nations. In 1945, this article was a revolutionary unprecedented type of provision. It is considered to be the equivalent for states as first criminal court that prohibited murder among human beings. It took two world wars to reach consensus from the international community at the time. Assuming that this provision has had a sufficient compliance we could say that it has saved millions of lives by preventing rising conflicts. States have an obligation not to not use the threat or the use of force itself. This is considered to be new as this was the first ever prohibition to use force. The subjects of the sentence are all members, that is to say the member of UN so States. States are both the authors and the beneficiary of this provision. It is what states do towards other states that is prohibited. The word ‘states’ was not used because treaties have binding power only on members and not all states in the world. On the other hand, when the word ‘states’ is used it means towards all states. This provision does not undermine the right of a state to maintain law and order within its border (does not prohibits civil wars). Analysis of the provision The provision can be divided into two parts: 1. The first part is the one where states are limited; 39 2. The second one can be used to weaken the first one by provig that territorial integrity and political independece are safe, but you reason with other parameters beneficial for the state, other than endangering. This prohibition does not prohibit intervention by member states to to solve any internal conflict. The term “force” means the quintessential type of force, so the one involving violence and weapons. Nonetheless, this definition includes economic coercion, threatening declaration etc. It means that this provision does not refer to violence only. When a provision isn’t clear, Article 31, 32 and 33 of the Vienna Convention on the Law of Treaties helps with the criteria of interpretation of treaties: We have to look at the meaning of the words, at the context and at the object and purpose of the treaty (in this case the aim of the charter is to prohibit use of force in order to prevent the raising of another World War). The idea that article 2(4) was prohibiting only some uses of force, was used by Belgium in its short proceedings before the International Court of Justice, regarding the use of force in Jugoslavia. They said they only wanted to protect Albanians in Kosovo. Small states wanted to add the second part of the provision in order not to allow use of force in any case. Breach of territorial integrity: to enter the territory of a state without its consent (e.g. NATO bombed serbia); Political independece: Right of a state and its people to choose its political system. The breach is the action to force a government to take a decision it would have not otherwise taken. Uganda vs. Israel (rescue operation) The Rescue Operation (also called “Operation Entebbe”) was a counter-terrorist hostage-rescue mission carried out by commandos of the Isreale Defence Forces (IDF) at Entebbe Airport, in Uganda. The Ugandan government, led by the President Idi Amin was not cooperative and sent military forces to stone the plane, killing the palestinian group. This would be a stituation prohibited by Article 2(4) of the United Nations Charter, unless general practice accepted as law tolerates this type of operation. Any use of force which is non-consensual and beyond the borders of a state falls under the scope of the provision. What does not fall under the provision is a use of force within the borders or a use of force that is consensual by legitimate government where the intervention takes place. Democratic Republic of Congo vs. Uganda (embassy) When it comes to the attack of embassies in a state, it is technically a case of use of force in international relations, as if the attack was directed towards citizens themselves, but the International Court of ustice does not agree. In fact the International Court of Justice has not treated these cases or similar cases as violation of the article, for example the Hostage case 1980 between Iran occupying the US embassy. Uganda made the counterclaim stating that Congo was responsible for the maltreatment of uganda dipomatic staff in the embassy. These cases would be textbook example of the use of violence on democratic institutions. but the International Court of Justice did not refer those cases to Article 2(4), but to the breach of rules on diplomatic immunity (breach of 1961 Vienna Convention). The reason why transboundary cases of use of force have been treated as issues of diplomatic immunity and not as violations of international law, is the fact that the action would justify a reaction of the same type. Is Article 2(4) General practice accepted as law? The provision has been in force for a long time, but it did not completely work. 40 In Nicaragua judgment, the International Court of Justice claimed that the provision reflects customary international law, but nowadays practice got worse. The majority of the judges of the International Court of Justice said that there’s general practice, beside the history of the last seventy years, because the actions taken by the states have been justified by exceptions. States justify their action against other countries, therefore even though they act differently, they do not recognise the use of force as a lawful and acceptable way to settle disputes. Taking Russia as an example, it relied on one of the only two exceptions of article 2(4): Self-defence. The other exception accepted is the use of force after an authorization from the security council. By relying on these exception, a state actually recognises the power of the article, which is still strong. The idea behind this provision was to provide the international community with a superior institution (security council) that could act as a policeman, in order for the states not to act against the actions of the others. Franck said that the article has been killed by many actions, because it can be easily overturned. Exceptions to the prohibition of the threat and use of force Self-defence Self-defense has been used as a justification for many uses of force, after 1945, in order to use that as a mean to “protect” their national identity (e.g. Russia). In case the state in question is the victim of an armed attack. Article 51 - U.N. Charter Nothing in the present Charter shall impair the inherent right of individual or collective self-defence if an armed attack occurs against a Member of the United Nations, until the Security Council has taken measures necessary to maintain international peace and security. The article reflects customary international law, apart from the duty to report to the Security Council (Nicaragua Judgement). Self-defence is a right, it is not a duty, unless otherwise provided (e.g. NATO alliance). The key word is “armed attack”, it is the trigger of the exception. States havin inherent right of self-defense, means that it has always existed; all states, as being such, have the intrinsic right to self-defence. The right cannot be excercised at all times, as there are specific beginnings and ends, specified in the article (armed attack → initial moment , until the Security Council is taking efficient measures in order to help with the situation occurring in that state → final moment). In Article 51 there’s no mention to use of force, as the expression is replaced by “armed attack”. There are examples of uses of force that do not qualify as armed attacks (e.g. to finance certain dangerous group etc.) and some of them are to be considered just means of intervention (e.g. supply of weapons). All armed attacks are uses of force. In the case of Nicaragua, the International Court of Justice had to establish whether or not the matter was a use of force or an armed attack, by using the general assembly’s definition of aggression, adopted in order not to help states understand when they can invoke Article 51, but to help the Security Council to understand when it can exercise the powers contained in Chapter 7. An armed attack is to be considered as such whenever occurring in any territorial property of the state, whether it being on land, sea or airspace. It is still controversial whether it is to be considered an armed attack when a state position (e.g. ships) abroad. CASE: Oil Platform ICJ , USA vs. Iran 41