International law - Appunti Fasoli, Appunti di Diritto Internazionale

Scarica International law - Appunti Fasoli e più Appunti in PDF di Diritto Internazionale solo su Docsity! INTERNATIONAL LAW 21/09 The law of treaties The actors of int’l law are states and increasingly also international organizations (made by states). Int’l law is made y observing the acts, conduct and reaction of states, so through the behaviour of states. -There are 3 main sources of int’l law. Art 38 ICJ lists them. It states which are the applicable law the court can apply in cases over which it has jurisdiction. • treaties btw states • Customary int’l law • General principles of law -The other 2 imp elements are subsidiary means for determining rules of law: • decisions of int’l courts • Teachings of the most eminent publicists These are simply assessing the behaviour of states and can tell you at a given point in time what the law is. Treaties are the most important source of int’l law. There are treaties covering any primary possible field. A fundamental aspect of the rule of law are courts that enforce law. In int’l law there is no central jurisdiction and enforcement, everything is decentralised because int’l law is made by the interaction between states. Courts in int’l law are established by treaties through consent. In order for a state to submit to an int’l court it needs to give its consent. Where do we find the rules on treaties that prescribe how treaties are made, interpreted, invalidated, withdrawn from? We can find them in the Vienna Conventions on the Law of Treaties It is a treaty that tell us how to deal with treaties. There are default rules as customary law that apply to all states and some of them are codified in the Vienna Convention, but since it is a treaty states need to consent to it. Before the VCLT, the UN’s international law commission, a subsidiary body of the UN General Assembly entrusted with the codification of int’l law and progressive development, it is made up of independent experts that compose guidelines. They prepared the draft art of the law of treaties and proposed it to the General Assembly to negotiate a treaty on the law of treaties. VCLT entered into force in 1980. It is based on customary law and not all states are part of it. The int’l law commission has come back to sources of int’l law and especially to some parts of int’l law of treaties that were not so clear. Vienna Convention on the Law of Treaties Art 2(a) - definition of treaty “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; We want it to be binding in the eyes of int’l law so it must be governed by int’l law. The title (designation) of the document is not relevant to decide if it is an international document or not. Ex: The ICJ in North Continental Shelf cases (1978) 1 Paragraph 96 stated that the nature of the act and the transaction of the act is what matters. The court also explained that what we need to do is to look at the actual terms and to the particular circumstances in which the agreement was drown up. Ex: Qatar - Bahrain dispute of 1990s over territory. The court has found that we need to look whether the actual terms of the treaty establishe rights and obligation for states, so you need to look at the instrument and consider how it was drown up Art 3 - scope of application It applies only to treaties between states Who represents the State? States are fictions but are subject to int’l law. A person has to represent the state. Art 7 - state representation 1. A person is considered as representing a State for the purpose of adopting or authenticating the text of a treaty or for the purpose of expressing the consent of the State to be bound by a treaty if: (a) he produces appropriate full powers (art 2c); or (b) it appears from the practice of the States concerned or from other circumstances that their intention was to consider that person as representing the State for such purposes and to dispense with full powers. 2. In virtue of their functions and without having to produce full powers, the following are considered as representing their State: (a) Heads of State, Heads of Government and Ministers for Foreign Affairs, for the purpose of performing all acts relating to the conclusion of a treaty; —> full capacity (b) heads of diplomatic missions, for the purpose of adopting the text of a treaty between the accrediting State and the State to which they are accredited; —> limited capacity (c) representatives accredited by States to an international conference or to an international organization or one of its organs, for the purpose of adopting the text of a treaty in that conference, organization or organ. —> limited capacity Art 2c “full powers” means a document emanating from the competent authority of a State designating a person or persons to represent the State for negotiating, adopting or authenticating the text of a treaty, for expressing the consent of the State to be bound by a treaty, or for accomplishing any other act with respect to a treaty; How are treaties made procedurally? How do state consent? Article 12 - Consent to be bound by a treaty expressed by signature 1. The consent of a State to be bound by a treaty is expressed by the signature of its representative when: (a) the treaty provides that signature shall have that effect; (b) it is otherwise established that the negotiating States were agreed that signature should have that effect; or (c) the intention of the State to give that effect to the signature appears from the full powers of its representative or was expressed during the negotiation. Treaties can be kept secret. Ex US - Pakistan When does a treaty become binding? A treaty is binding only when it enters into force. Art 18 A State is obliged to refrain from acts which would defeat the object and purpose of a treaty when: (a) it has signed the treaty or has exchanged instruments constituting the treaty subject to ratification, acceptance or approval, until it shall have made its intention clear not to become a party to the treaty; or 2 arise. What we need here is that the subsequent practice of some states establishes the agreement of all parties to the treaty. For example, it can happen that in a meeting of a technical committee or ministerial conference some states point out how they interpret the treaty and other states remain silent, they don't either oppose not accept. In this case, that silence will be considered as a silent acceptance to the interpretation of the treaty. (c) the rules have to be applicable in the relationship between all parties, therefore it is very difficult to have other treaties as a mean of interpretation of another multilateral treaty. The more parties there are the more difficult it is to take into account other treaties. General rules of international customary law are applicable in the relation of the parties. This oblige the interpreter to take into account the rules of int’l law considering relevance and applicability. object and purpose Object is the structure created by the treaty and purpose are the aims, what you want to accomplish through the structure. The Vienna Convention does not say how to identify object and purpose. In 2011 the international convention made an effort to try identify them. You basically interpret the treaty in accordance with good faith, in accordance to the ordinary meaning, the context, taking into account also the supplementary means and you will find the open purposes. The case law of the ECJ has found the open purposes in the title of the treaty, in the preamble and by reading all the provisions together with the preparatory works. Art 32 things that are not taken into account in Art.31(3(b)) can fall under Art.32 as supplementary tools for the interpretation in order to either confirm the meaning or to guide the interpretation to this supplementary rules if it is not clear enough. States have created institutional (international?) bodies on the basis of treaties that are composed of independent experts and are not international organisations. Ex ICCPR, the convention against torture. States assigned a mandate to these commissions to oversee the compliance of states with those treaties. There is a huge battle between states parties and these bodies. The bodies claim at least to be supplementary means of interpretation. The commission was against these supplementary means of interpretation and said that whenever a body likes this makes a pronouncement, parties’ silence cannot be considered as acceptance Reservation Art 2(d) “reservation” means a unilateral statement, however phrased or named, made by a State, when signing, ratifying, accepting, approving or acceding to a treaty, whereby it purports to exclude or to modify the legal effect of certain provisions of the treaty in their application to that State; A reservation relates to the importance of consenting. The idea behind is allowing to understand how many states consent to the treaty. In order to identify the purpose of that statement, you need to interpret it. States will make unilateral statement declaration when they conclude the treaty. The difference between interpretative declaration and reservation is that: an interpretative declaration is used to interpret the treaty, to clarify it. If it is conditional, that is no longer an interpretative declaration, but a reservation. A reservation is much more complex, you can have a variety of different reservation. It is possible that an interpretative declaration is a reservation when it is a conditional interpretative declaration. If the consent to be bound depends on that statement exclusively, then the statement is a reservation. 5 The most famous decision in this decision is Belilos v Switzerland in 1988 (paragraph 49), case of the ECHR. Art 19 - Formulation of reservations 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. (b) The treaty may prohibit reservation or allow reservations only regarding specific articles. (c) It was developed by the ICJ. At the moment, in the 40es, the law said that all parties had to accept a reservation in order to be valid (unanimity). The ICJ afterwards clarified that something else had to be introduced since they needed to have much states as possible signing for example the genocide convention. The court said that it is possible to make reservations when they are not regulated by the treaty only if they do not contradict the object and purpose of the treaty. You can only make it by the time you express your consent to be bound, afterwards, it cannot be made, it would be a violation of your obligations under the treaty. If the treaty prohibits reservations you cannot make reservations, including when they are called interpretative declarations. Secondly, you can only make them when you have specified provisions on which can be made. You need to identify the object and purpose of the treaties in order to understand whether a declaration is permitted or not, compatible or not. 27/09 The regime that governs reservation • acceptance and objection The regime until the 60s was unanimity, the problem was it was unlikely that the state making the reservation became a party in the treaty because unanimity was required. In treaties you want as many states as possible to joint. But at the same time we cannot allow any reservation because it would undermine the integrity of the treaty. The ICJ in the Genocide Advisor said we need to strike a balance between universality and the integrity of the treaty. It adopted that reservations have to be compatible with the object and purpose of the treaty. The Vienna Convention reflects this situation. Acceptance and objection are generally unilateral acts, they can be done by remaining silent. With one acceptance only, it makes the reservation part of the treaty, objection cannot have that effect.  Acceptance: When you make a reservation to become part of the treaty you need at least 1 state to consent and remain silent for 12 months is tacit consent. There is the bilateral effect of the reservation on the accepting party. Art 20 (4a) 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; 6 Art 21 (1) A reservation established with regard to another party in accordance with articles 19, 20 and 23: (a) modifies for the reserving State in its relations with that other party the provisions of the treaty to which the reservation relates to the extent of the reservation; and (b) modifies those provisions to the same extent for that other party in its relations with the reserving State.  Objection: States can object to a reservation for any reason. Objection does ot have the same effect of acceptance, you need at least 1 acceptance to become a party in the treaty. The objecting state has 2 options: Art 20 (4b) 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; Art 21 (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. Meaning (?) We have 2 types of reservations: one that excludes some provisions, another that modifies the effect of some provision. We have the problem of impermissibility Art 19(c) in cases not failing under subparagraphs (a) and (b), the reservation is incompatible with the object and purpose of the treaty. Art 19 creates a separate permissibility criterion, if you do not meet the criterion of art 19, art 20 and 21 are not applicable. Art 20 and 21 apply only to permissible reservations. The legal effect of an impermissible reservation is voidability. What happens if a state has expressed to be bound and has attached an impermissible reservation? What happens with consent? -The Human Right Committee in 2014 is that consent to be bound remains regardless the invalidity of the reservation In 1998 in the Bellillo v Switzerland the court said in paragraph 60 of the judgement said that Switzerland made an invalid reservation which is to be considered invalid. But Switzerland is bound by the convention irrespective of the validity of that impermissible statement. -The other option is to annul the whole consent. -2011 the Iron Seal said to look at the intention of the state that makes the reservation. This is a middle ground between the other 2 approaches. To identify this intention look at guideline 4.5.3 Who can decide whether a reservation is impermissible? In principle when a treaty does not provide a close for dispute settlement through adjudication, the default would be contracting states, each contracting state would be terming if that state is a party without reservation or not. If there is a dispute settlement close, a court would determine it and that determination would be binding. 7 28/09 pptx sources of international law S2 duration and termination of taties • External grounds - material breach of the treaty - supervening impossibility of performance - fundamental change of circumstances Ex Gabcikovo-Naaymaros Project case —> material breach of the treaty art 60 S3 Gabcikovo-Naaymaros Case • Hungary suspends the works at Nagymaros (May 1989) and then it abandons the works in October 1989. • Czechoslovakia puts in place Variant C (November 1991). • On 19 May 1992 Hungary transmits a Note Verbale to terminate the treaty with effects taking place from 25 May 1992 - invoking: supervening impossibility of performance: fundamental change of circumstances: material breach of the Treaty. • Variant C of Slovakia effectively diverted the waters of the Danube only in October 1992. 2 states Chekoslovakia and Hungary in 1977 entered into a bilateral treaty to set up a system of lox in relation to the Donau river. To improve navigability, to prevent floating etc Both states started to build the systems and manage the work. But then there were a lot of criticism especially in Hungary regarding of the environmental impact of the project. In May 1989 Hungary decided to suspend the works at Nagymaros and afterwards it decided to abandon the works, even though there was a treaty in place. Chekoslovakia said it was going to find out another way to carry out the plan. It started to divert the waters of the river. Hungary wanted to terminate officially the treaty in 1992 through a notice. The ICJ rendered its opinion. S5 International Court of Justice • Material breach: the notification of termination was premature because at that time Czechoslovakia had not diverted the waters yet • Ecological necessity: Hungary did not establish that the environmental uncertainties amounted to "penis" to the environment or that they were imminent • Fundamental change of circumstances: the new developments in the state of environmental knowledge were not completely unpredictable or totally unforeseen and also the dissolution of Czechoslovakia did not after the obligations under the 77 treaty • Supervening impossibility of performance: the Object indispensable for the execution of the treaty" (the legal regime set up by the 1977 treaty) was not "permanently disappeared or "destroyed". Art 61 about permanent disappearance or destruction of an object indispensable for the execution of the treaty In the context of this case it was interpreted that an object could be also understood as a regime. In this case the regime created by the treaty was still there so art 61 could not be invoked. 10 The common element of these provisions is the high threshold, these are difficult to be invoked by states. Treaty law is related to state responsibility law. Both governments are breaching the treaty. (Intersecting wrongs) Hungary was not entitled to suspend and subsequently abandon (terminate) the project. At the same time, Czechoslovakia was not entitled to put in operation variant C because it was disproportionate as a response to the previous breach. Result: the termination of the 1977 treaty by Hungary could not have legal effect: “intersecting wrongs" needing overall settlement The ICJ asked the parties to come up with a solution to compensate each other. States asked the ICJ the form of reparation but the ICJ does not decide the quantum of compensation except in special cases. This case is important with regard to termination of treaties and also to counter measures and the proportionality of these counter measures. S2 • internal grounds: - treaty has an explicit duration - sunset clauses - unilateral withdrawal with period of notice e.g. Canada with Kyoto Protocol or USA with Paris Agreement A treaty can have an expiring date Sometimes even if the treaty has an expiring date parties may decide to have “sunset clauses” to prolongate the duration of the treaty to protect the parties ex in bilateral investment treaties. They allow for some protection even after the expiring date. Ex Indonesia - Netherlands 2007: even if Singapore unilaterally terminated the treaty the other state’s company may sue Indonesia to have the effect of the treaty protected for some following years to ensure protection to the companies. For the sake of protecting companies investing in a foreign country they made possible for these companies to sue a state directly. Unilateral withdrawal from the treaty: treaties might allow for the withdrawal setting a period of notice whereby the state communicates the intention to withdraw from the treaty. In the Vienna Convention section 3 art 56 allows state to introduce clauses in a treaty to be able to get out of it. Ex US with Paris Agreement All states that want to be part of the treaty need to present their instrument of ratification. The instrument of ratification is the piece of law adopted domestically that you are presenting as a state. Provision of Kyoto protocol regarding the entry into force. 29/09 Entry into force is the moment from which the treaty becomes binding at international level. It enters into force when the consent given through signature and the mean of ratification. Usually the presentation of the instrument of ratification is made to the depositary of the treaty, the parties decide who is the depositary of the treaty. In multilateral treaties there are certain clauses that facilitate the entry into force, they don’t have to wait for all the states to present their instrument of ratification to entry into force. The Vienna Convention requires a minimum of 16 instruments of ratification deposited to enter into force. Exercise treaty law: (Moodle) 11 Exercise 1 • Kyoto protocol It is part of the framework convention on climate change of the UN. S6 Art 25 - entry into force 1. This Protocol shall enter into force on the ninetieth day after the date on which not less than 55 Parties to the Convention, incorporating Parties included in Annex I which accounted in total for at least 55 per cent of the total carbon dioxide emissions for 1990 of the Parties included in Annex I, have deposited their instruments of ratification, acceptance, approval or accession. 2. For the purposes of this Article, “the total carbon dioxide emissions for 1990 of the Parties included in Annex I” means the amount communicated on or before the date of adoption of this Protocol by the Parties included in Annex I in their first national communications submitted in accordance with Article 12 of the Convention. 3. For each State or regional economic integration organization that ratifies, accepts or 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. It requires 55 parties that represent at least 55% of carbon emissions to enter into force. Art 24 - signature The US made an official declaration that it does not want to be bound by the Kyoto protocol. State’s administrations change continuously and their ideas may differ. Al Gore administration signed the protocol but Bush administration did not want to be bound by it. But the signature had to be followed by the instrument ratification for the US to really become a party of the Kyoto protocol, so the US never actually became party to the Kyoto protocol. Internal dynamics are not relevant to 3rd countries. If an organ of a state breaches int’l law, ex the mayor of a city, the overall country is considered responsible because internal dynamics are not relevant, the state is considered as a unit. When you sign a treaty, what’s the effect? Good faith always plays a role, it is a principle within the international relations not to go against the object and purpose of a treaty, so if you sign a treaty you are expected to be intentioned to become a party and be consistent with it. It is not a matter of liability or breaching rule or state’s responsibility because until you actually become a party you are nor bound to any rule. Good faith is important because if a state is not seen as reliable and consistent it may create problems regarding relations with other states, reputation and reliability are very relevant to the relationships between states at international level. The phase of the signature might be important also as a middle moment in which you convince other states of the importance of the treaty. The way treaties are designed, is meant to create different phases to allow states to get out before becoming an actual party. States can withdraw the signature and can withdraw from the treaty. 12 • Reports and Draft Articles prepared by the International Law Commission • Resolutions of the General Assembly • Final declarations of international diplomatic conferences • Adopted multilateral treaties prior their entry into force The principle behind soft law instruments is good faith ILC Draft Conclusions on identification of customary international law is a codifications of customary international law, they put the customary norms in writing and hope states would follow them. Sometimes it s not just a matter of putting the rules in writing, but also a matter of inserting them in those texts that do not fully correspond to customary international law but they might become so. This is called progressive development of international law 05/10 S9 Diff btw codification and progressive development: Progressive development: is contained in art 13 UN Charter Codification means putting in writing for example a custom. The ILC under the mandate of art 13 of the UN Charter could insert in the text some provisions that do not represent an existing customary law, but that according to the ILC could become one in practise. Gambia v. Myanmar Genocide against a minority group. A state suing another state in front of the ICJ for the breach of a ius cogens rule. In 2001 the ILC put forward a provision stating that other states could not invoke the responsibility of another state in the case of a breach of erga homnes obligations. It was clearly a provision of progressive development. (Art 48 of the Draft articles of states’ responsibility of the ICJ) ILC Draft Conclusions on identification of customary international law 2018 It contains the list of indications in relation to the methods, steps to identify when it emerges, when it is established and the result of a customary international law. The work of the ILC is just the beginning, because these soft law documents have to be commented upon by states. It happens at the level of the 6th committee/legal committee of the General Assembly composed by states representatives. The moment in which ILC members (experts) are elected, they do not represent the state of nationality anymore. The members of the 6th committee are no experts, they are just states representatives with he task to comment and discuss the document, so they represent the position of their state. The document is commented on 1st reading and 2nd reading. There is 1st round of comments by state’s delegations, then the ILC as to take them into consideration and present a second version of text to the 6th committee that will have a 2nd reading. In the 2nd reading, the text is adopted by the 6th committee and sent to the General Assembly and the GA takes notes on the text and sent it to the states. Contradictions and breach of those rules are part of such rules. States need international law even if they breach it. When they breach it they confirm it. Customary international law is really difficult to identify. The role of the interpreter is fundamental. Who needs to identify the existence of customary international law? • ILC • International courts • Operators at domestic level Art 10 IC: customary international law enters automatically in the domestic system (monistic approach) 15 But someone internally needs to identify what customary international law rules are. Even the administrative branches need to know the rules in place of customary int’l law. We need 2 elements to identify customary international law: • a general practise (diuturnitas) - consistently repeated over time • Accepted as law (opinio iuris) - consciousness by state organs that the practise conforms to a legally binding rule (or of what ought to be a rule) S10 They are both needed because: • Practice without opinio is just a non-binding usage • Opinio without practice is just an aspiration that something should be lawn S11 what is state practise? • Diplomatic practice: public statements, notes verbale of protest, voting attitude of states in relation to GA resolutions • Legislative practice • Administrative practice • Judicial practise • Operational conducts taken by the police, customs officers or the coast guard • Conclusion of international agreements (conventional practice) may, provide significant elements of practice for the purpose of identification of custom. 1 and 6 are more at international level 2, 3, 4 and 5 are at domestic level Usually you cannot invoke a breach of domestic law to invalidate a treaty. Domestic law is not relevant for international law because we want stability of international law. For 3rd states is only important whether the other state is bound by the international law or not, so how the consent to be bound is given by the state is not relevant. Stability, predictability, reliability and reputation are the key in international relations. S12 Assessing state’s practice - The interpreter has to look at all the available practice of a State - The practice has to be assessed as a whole and not in isolation All the practise of a state have to be considered as a whole and it includes many contradictions. Therefore the identification of state’s practise is not always easy because it is a combination of many elements. S13 general practise • Sufficiently widespread and representative: involving especially those States concerned with the alleged rule Ex. Switzerland in relation to the 12 nautical miles of the territorial sea To identify customs you look at the behaviour of states that are potentially affected by this rule. The 12 miles rule was also incorporeal in the Law of the Sea Convention • Consistent: do we need total consistence? Are inconsistencies not allowed? Par. 186 ICJ case Nicaragua v USA (see next slide) • Time element: short period of time is not an impediment to the formation of a new rule but not too short – there is no instant custom 06/10 General practise: you need to search for elements of practise proving that the behaviour of states is sufficient to prove compliance with that rule 16 Ex Switzerland 12 miles of the territorial sea as extension of a state’s territory. This rule was codified also in the law of the sea convention. There must be consistent practise on the part of the state. Ex Nicaragua v US case It is important because it gives the idea of consistency of practise in order to establish an existing customary int’l rule. There is paragraph 186 S14 paragraph 186: 186. It is not to be expected that in the practice of States the application of the rules in question should have been perfect, in the sense that States should have refrained, with complete consistency, from the use of force or from intervention in each other's internal affairs. The Court does not consider that for a rule to be established as customary, the corresponding practice must be in absolutely rigorous conformity with the rule. 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. If a State acts in a way prima facie incompatible with a recognized rule, but defends its conduct by appealing to exceptions or justifications contained within the rule itself, then whether or not the State's conduct is in fact justifiable on that basis, the significance of that attitude is to confirm rather than to weaken the rule. When there are inconsistencies of practise, breaches, sometimes states invoke customary international law for example self defence as a justification for the breach of international law rules. The breach is at the same time a confirmation of the international tule. They established the customary nature of a treaty provision, of art 2 paragraph 4 of the UN Charter. Art 2(4) 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. S15 what is opinio iuris ? It can be inferred from the same pieces of state practice Ex. a parliamentary debate over the adoption of a certain statute may indicate that it has been adopted to conform (or to promote) a certain international custom Opinio iuris is general practise accepted as law. It is the analysis of what states think should be accepted as law. - Sometimes it is from the very document that you infer the opinio iuris. (Domestic level) - The most obvious example where you express the opinio iuris in an international scenario are negotiations, voting in non binding documents, UN resolutions and GA. (international level) Estoppel/acquiescence  silence = acceptance It is created for certainty and stability in international law, so that we know the position of states even when they don’t speak. If you don’t react in a certain period of time, it means you have accepted. There is no higher authority so there us the need for certainty. This is an important element in the formation of international customary law. Here we are using a presumption for the sake of stability of international relations. Silence in int’l law has been interpreted in this way but we’re not sure that from this silence a state wanted to accept. The real intention of a state could have been a different one. In international law expressing your opinion is key if you want to oppose. S16 Prohibition of the use of force in treaty law and in customary law 17 • Para 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 included that of States whose interests were specially affected.” S Example of a currently emerging customary rule: > Sea level rise and baselines —> ILC Study Group on Seal level rise (1) 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 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)20 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), 2" 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?7 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. Customs may change and be replaced by another custom and opinio iuris. A study group was created, dealing with sea level rise and its legal consequences in int’l law for example on the disappearance of state’s islands. It also deals with maritime delimitations. The law of the sea is one of the oldest branches of int’l law. Every costal state has a maritime delimitation of 12 coast miles. These entitlement empower the costal state to exercise some powers over the territorial sea as if it was its land. This study group tried to come up to possible legal solutions to this problem. Some states will disappear and other will loose territory partially. Are the provisions contained in the Law of the Sea Convention establishing the maritime zone correspond to customary international law changing? 12/10 Currently in the law of the sea convention there is a rule to calculate the coast line. Shall we still consider still that as the customary rule considering the climate change? It is too early to consider a change in this rule and to witness the emergence of a new custom. In Pacific and South-East Asia regions there is a peculiar emerging rule respected as practise but it is not as widespread as to establish opinio iuris. Legal stability, security and certainty are the key for states to maintain their entitlement. 3 areas of analysis: • adjusting the maritime area • Statehood, faith of states • Human displacement 20 S Persistent objector • Here the ”time factor” is relevant • 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. • The expression of opposition MUST be clear, unambiguous • Question: if the opposition is only voiced internally does it count as “opposition”? Ex Costa Rica v Nicaragua There is not such thing as an instant custom, a reasonable amount of time has to pass to establish a customary rule. At the same time an objection to a custom must be made within a reasonable time before the custom is established as a rule. Timing is key. The objection has to come from the very beginning of the process of formation of a rule. And the objection has to be unambiguous. Is an objection made only at domestic level valid? The rule is being created internationally, so the objection has to be made internationally in good faith so you make sure that all states know your position. The rule is not applicable to a persistent objector state as long as it maintains persistently its position. In int’l law there is the absence of an authority enforcing the rules. With consent there are judges and organizations but before that there is the level of the moral sanctions and self-participation that make states more inclined to follow the rules. It is easier to follow a rule if you agree with it States use self-assessment to decide if there any state breached a rule and consequently decide which counter-measures to employ. S Relationship of compatibility between sources of international law ICJ North Sea Continental Shelf Case 1969 • Dispute related to the delimitation of the continental shelf between Germany, on the one hand, and Denmark and the Netherlands, on the other, before the ICJ. • Does Art. 6 of 1958 Geneva Convention on the Continental Shelf constitute a mandatory customary rule and, therefore, applies also to the federal Republic? The dispute arose between the Federal republic of Germany on the one side and Denmark and Netherlands on the other side. The case was about the maritime delimitation of the continental shelf between these states. The applicable law in the case was a list of treaties and convention that eventually created the law of the sea convention. Among that list there was the Geneva Convention on the Continental Shelf, which was the applicable law in the case. The relevant provision of this convention was art 6. Article 6 1. Where the same continental shelf is adjacent to the territories of two or more States whose coasts are opposite each other, the boundary of the continental shelf appertaining to such States shall be determined by agreement between them. In the absence of agreement, and unless another boundary line is justified by special circumstances, the boundary is the median line, every point of which is equidistant from the nearest points of the baselines from which the breadth of the territorial sea of each State is measured. 2. Where the same continental shelf is adjacent to the territories of two adjacent States, the boundary of the continental shelf shall be determined by agreement between them. In the absence of agreement, and unless another boundary line is justified by special circumstances, the boundary shall be determined by application of the principe of equidistance from the nearest points of the baselines from which the breadth of the territorial sea of each State is measured. 21 3. In delimiting the boundaries of the continental shelf, any lines which are drawn in accordance with the principles set out in paragraphs 1 and 2 of this article should be defined with reference to charts and geographical features as they exist at a particular date, and reference should be made to fixed permanent identifiable points on the land. The continental shelf is the part of land that extends below the water to 600 n.m. From the coast line. This is called the method of equidistant method to calculate the area of the continental shelf The method is not favourable for state B if the conformation of the territory is not straight S equidistance • The method has usually many advantages. when there is no agreement, nor special circumstances • is it, just for that reason, a rule of law for all the States in the case, even if sometimes it can conduct to unreasonable results? • is it, just for that reason, a rule of law for all the States in the case, even if sometimes it can conduct to unreasonable results? S Art. 6 of the Geneva Convention and customary law (paras 25-36 of the judgment) > 1958 Geneva Convention entered into force in 1964 and received 39 ratifications at the time of the analysis by the Court • The federal Republic only signed the Convention but never ratified it so it did not become a Party • According to Denmark and the Netherlands, the Federal Republic, with its behaviour in public statements and proclamations, has assumed anyway the obligation or accepted art. 6. Denmark and the Netherlands say that they have relied on this attitude. > The ICJ: • it is not lightly to be presumed that a State which has not ratified the Convention, has somehow become bound by it anyway. • Art. 6 allows for reservations » 'In the past the Federal Republic has never accepted (with conducts or declarations) this rule so that now it could not deny its applicability without contradicting itself • Art. 6 Is not opposable to the Federal Republic and it does not correspond to customary law The problem was that Germany never ratified the Geneva convention, whereas Netherlands and Denmark were party to the convention. The court had to established if the principle of equidistance contained in art 6 of the Geneva convention did not corresponded also to a rule of customary international law The ICJ had to assess various elements: -Absence of ratification -Presumption to the correspondence of a rule to custom -Art 6 allowance for reservations. It means that the consensus to that article was not so widespread probably S conclusion The ICJ describes 3 scenarios in the judgement to arrive to the conclusion that art 6 is not opposable to Germany because it does not correspond to a rule of customary international law. S Relationship of compatibility btw custom and treaty law 3 scenarios: • The treaty provision is declaratory of a pre-existing custom • The treaty provision crystallizes a custom in the process of forming • The treaty provision creates a new custom 22 It is easier to see a synallagmatic rationship when it comes to bilateral treaties. This type of obligations is classic, it is traditional and governing the beginning the history of international relations, it reflects reciprocity which is another major principles applicable from ancient times. At the beginning, all rules of international law were grounded on this principle of reciprocity. The example made about diplomats is clearly about reciprocity: you treat my diplomats as if they they are diplomats of your state and I, as a state, will do the same with your diplomats. Art.42 is the article which describes the pathological phase of the breach of the rules and it is referring to the injured states. Is this article a convention? No, it is still part of soft law because we are talking about resposibilities of state, it is a treaky political issue. It is normal to see such document not being transformed in something bidning. However, when they are soft law instruments, they threten less states that are more inclined to follow them and to progressively establish a custom of international law. Article 42 - Invocation of responsibility by an injured State A State is entitled as an injured State to invoke the responsibility of another State if the obligation breached is owed to: (a) that State individually; or (b) a group of States including that State, or the international community as a whole, and the breach of the obligation: (i) specially affects that State; or (ii) is of such a character as radically to change the position of all the other States to which the obligation is owed with respect to the further performance of the obligation. There was a development in the type of rules and in the type of relatioship established by these rules, especially after the horrors of WWII, there was a drammatic change in structure of obligations, we may observe a new interest to see certain rules establishing certain types of obligations being respected. Integral reciprocity --> Art.60 Vienna Convention d. 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. The rational of the VC and of the DAASR is the same. The only difference is that the Vienna convention only refers to treaties. When you have a multilateral treaty such as the Antartic Treaty, we talk about integral treaties when (from the wording of the Vienna Convention) one state breaches it, it changes everything for everybody. This happens because all other states were staying within the multilateral system provided that everybody was fulfilling the provisions. If there is a breach of the text by one party it changes the position of the other states to stay within the treaty also in the future. • Integral treaties Integrality--> each state party to the treaty, will be an injured state. This means that if state A breaches the antartic treaty because the point is "I will respect it as long as each state respects it". The type of system is an integral one. New types of values, of rules and interests have developed starting from the end of WWII and after the establishment of certain international law organizations; all the progressive institutionalization of international law with the establishment of the international law organizations. New rules establishing new 25 types of obligations. Among these new type of obligations we put erga omnes and erga omnes partes obligations created by Ius cogens rules. A rule of Ius cogens usually establishes erga omnes obligations. This scenario * foto* is part of erga omnes partes obligations. We use erga omnes partes when it is a treaty, an obligation stemming from a treaty and we use erga omnes when it is a type of obligation stemming from custom, customary international law. "Partes" remembers the parties to the treaty. In the first scenario, I am and i stay in provided that everybody is in and respects it. In the second scenario, erga omnes partes obligations also corresponding to erga omnes obligations (customary international law); the breach of the obligation (such as the one that prohibits genocide), it is something that is contained in the convention (genocide convention in this case) and also corresponds to the evolution of customary international law having the same content. There is a difference between integral treaties and erga omnes obligations: the first scenario is part of erga omnes obligations. The problem is in terms of structure: I stay in the treaty provided that everybody is in and respects the rules of such treaty. When a breach is made, we do have a directly interested state, ex. state E, but when it comes to the breach, such as of prohibition of genocide, the states of the international community though that, by looking at the customary nature of the rule, all the other parties of this convention, when the fundamental rule is breached by one state toward its own population (as in the case of genocide), all the other states have a legal interest in the respect of such a rule. This special legal interest triggering special legal consequences has been developed also by the ECJ in the Barcelona traction case 1970. States B,C,D,E,F,G,H will be legally interested, concerned, not directly effected or concerned in seeing such a rule respected. If this does not happen a potential invocation of responsibility by those states might also happen. In MULTILATERAL TREATIES erga omnes partes obligations, a state can invoke the responsibility of the breach even if the state in point is not directly interested or injured. Ex: Gambia v Myamar A state is entitled to invoke the responsibility of another state which means that also an injured state if it does not want to sue the breaching state, it is entitled not to do so. Gambia was entitled to invoke the responsibility of Myanmar because: p. 126 DARS Art.48 (a) > Gambia was entitled and exercised its entitlement Entitlement is what characterises all states but the difference is which type of damage did they suffer, wether they are directly affected states or not, wehter they are intrested in seing some key rules of international law and depending on this we can distinghuish the yellow and the orange situation. Pharagraphs 39 and 40 of the application of the convention of genocide in Gambia V Myamar. Paragraph 39/40 refers to the entitlement of Gambia and the type of obligation. Paragrapg 39: 39. As to the facts, The Gambia argues that it is, by any measure, the “real applicant” in these proceedings and this is evidenced by the letters accompanying its Application, which make clear that the proceedings were instituted only on behalf of the Republic of The Gambia. The Gambia affirms that it expressed its concerns in a variety of international fora. It refers, in particular, to the statement of the President of The Gambia, Mr. Adama Barrow, before the United Nations General Assembly on 25 September 2018, in which he declared that The Gambia had undertaken, as the upcoming chair of the next OIC Summit, “to champion an accountability mechanism that would ensure that perpetrators of the terrible crimes against the Rohingya Muslims are brought to book”. The Gambia also refers to the speech of the Vice-President of The 26 Gambia, Ms Isatou Touray, before the United Nations General Assembly on 26 September 2019, in which she announced The Gambia’s intention “to lead concerted efforts to take the Rohingya issue to the International Court of Justice”. Because of the character of the provisions contained in the genocide convention, Gambia has an interest that Myanmar respects it because it is an erga omnes partes to the situation. Paragraph 40: 40. Moreover, The Gambia affirms that it raised the matter bilaterally in a Note Verbale sent to the Permanent Mission of Myanmar to the United Nations on 11 October 2019, which made clear that The Gambia, as a State party to the Genocide Convention, was in dispute with Myanmar concerning the latter’s obligations under the Convention and requested Myanmar to take all necessary actions to comply with those obligations. 18/10 Pptx subjects of international law - chapter 4 Being a subject of international means to have international legal personality, so you are the adressed of international rules or uìyou are entitled to use those rules. From international law you derive a right to act or not in a certain way. S L. Oppenheim in 1912 "Since the law of nations is based on the common consent of individual States, and not of individual human beings, States solely and exclusively are the subjects of international law" According to the traditional view of international law states are the main players. Throughout time other actors came into place. States established other entities, such as international organizations. States gave them a certain area of action, so they have a functional personality. Some of them are intergovernmental organizations. There is also the emerging role of non-state actors, for instance individuals. With time individuals progressively gained rights through international rules and were subject to obligations internationally. S subjects • states • International organizations —> although with limitations • Individuals (?) • NGOs (?) Another big evolution and change of the rules was also the role of companies, multinationals at int’l law level. NGOs generally speaking cannot be international law actors but there are many grey areas. S States' sovereignty • Independent States have internal sovereignty: - Jurisdiction to prescribe - Jurisdiction to adjudicate - Jurisdiction to enforce • Independent States have external sovereignty: they can make their own foreign policy choice Art 2(1) UN Charter “The Organization and its Members, in pursuit of the Purposes stated in Article 1, shall act in accordance with the following Principles. 1. The Organization is based on the principle of the sovereign equality of all its Members." 27 - Effectiveness: the minimum is to be able to maintain public order and minimum substantial coexistence between those governed (Tinoco arbitration 1924) - It has to be independent from other States Nevertheless, statehood does not cease to exist because of foreign occupation (in the past iddid!), civil war, insurgence or disappearance of territory The statehood in itself does not cease to exist because there was a foreign occupation. This is how the rules have developed throughout time. In the past, it was fully established that foreign occupation meant the invasor state was taking full control of the state being invaded, the statehood ended with foreign occupation. Things changed after the ius cogens were established in the aftermath of WWII. S Processes of formation (factual or legal) of States and consequent (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 secession (e.g. Kosovo or South Sudan) - by decolonisation (e.g. from 60s many African States from British rule) - 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 India from Pakistan) The problem that you have with succession is what are the binding rules of the new formed state internationally. You have the problem with treaties, because you must understand who is still bound by them. On the other had customs apply to all states. International law rules attempt to codify customary rules, but the application of the rules contained in conventions may be hard if it has been ratified only by few states. S Secession: two opposing fates • 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). • ICJ advisory opinion in 2010: declaration did not violate rules of international law but did not pronounce on the statehood of Kosovo. • Path still long. The ICJ advisory opinion was highly criticized because it did not say if Kosovo established its statehood or not. The recognition by Sudan of South Sudan is a key element for the recognition of South Sudan’s statehood. S still states > States financially insolvent (e.g., Greece) > States in exile • small island States losing their territory ◦ Sea level rise study group > "Puppet" States 30 - Manchukuo, Transnistria, North Cyprus 1941-1945 there was the occupation of Manchuria by Japan. This was considered a puppet state because it was used for economic, financial and political purposes. The ECHR in relation to North Cyprus said it was a puppet state controlled by Turkey so it was not actually a state. In 1991 Transnistria declared independence but the control by Russia was established by the judgement of the ECHR. S recognition • Is recognition a further requirement for the acquisition of international legal personality? It is not included in the Montevideo Convention on the criteria for statehood E.g., Taiwan is not recognized by China. Taiwan is not member of the UN because of China's opposition. Is Taiwan not a State? S the role of recognition • Declaratory vs. constitutive theory of statehood: > Art. 3 of the Montevideo Convention states that “The political existence of the state is independent of recognition by the other states.” This is known as the declarative theory of statehood. It stands in conflict with the (old) constitutive theory of statehood: a state exists only insofar as it is recognized by other states. • Recognition as a vehicle of international effectiveness - when there is a significant (no specific threshold, though) number of recognitions, this would consolidate the (already existing) legal personality. Recognition is a unilateral act in international law. Do all unilateral acts produce legal effect? Not al unilateral acts have legal effects, it depends on the eyes of the other states. Self assessment and assessment made by states are relevant to produce legal effects. If you recognise a state today, you cannot change your mind in the future because you would contradict effect. A legal effect of unilateral acts is that when you do an act of recognition you cannot retrieve it Ex nuclear test case A promise is also a unilateral act. The ICJ trusted the French government assuring that they will stop nuclear tests. The formality of the unilateral act is the eyes of the observer. The other state assesses if the unilateral act of recognition is a valid one. There are 2 opposing view regarding recognition of statehood (art 3): • declaratory theory • Constitutive theory Declaratory theory is the youngest one, but recognition helps the process of formation. Recognition is not a mandatory element for statehood but it is becoming more important. It would consolidate the statehood. It is a vehicle of international effectiveness. S In other words .. • A newly formed State is likely to lose the capacity of effectively meet the three requirements without a sufficient widespread political recognition by other States • At the same time, the declaratory (instead of constitutive) relevance of recognition allows for the fact that the authorities of States that do not recognize another, still give effect to the latter's acts, such as, for example, birth, marriage, or divorce certificates There is just a de facto recognition of the state, not a legal recognition. 31 20/10 The idea of punishment is not present in international law anymore. Ex promise of France to stop nuclear tests Observer (ECHR) evaluates, assesses a certain conduct of a certain state, it is not establishing the criteria, they just say at the intention and behaviour of the state (France) and decide if it is to be considered a promise producing legal effects or not. Ex Continental shelf case The ICJ said they had to be careful and not presume that just because Germany did not ratify the Geneva convention, it did not recognise art 6. S The role of recognition Recognition is a unilateral act. Max Plant entry in unilateral act - moodle Recognition is a declaration, it could be a statement, it has a connotation of a unilateral act which can take different shapes. Recognition is not a criteria to establish statehood but another state might give a legal position about a state being just established and state if it recognise it or not; this has legal effects because the state cannot change its mind after because it has to do with the state’s reliability based on the good faith principle. Recognition might also have the form of acquiescence or silent acceptance. If you do not say anything, you are presumed to agree with the new state being established. It might be orally expressed provided that it is clear and confirmed throughout time and made internationally. Recognition consolidates and facilitate the process of formation of a state. The non-recognition also has a legal effect, for example the non-recognition of the annexation of Ukrainian territory into Russia. Intention is a key element for states to establish recognition. S more requirements • EU Guidelines on Recognition of New States in Eastern Europe and the Soviet Union adopted in 1991: - Complying with "international practice" - Not the result of aggression - Refrain from use of force - Respect territorial integrity - Respect human rights - Protect national minorities - Have constituted themselves "on a democratic basis" Add new requirements at the Montevideo Convention in 1991. It was seen as an hegemonic attempt by the European Community to exclude certain states internationally. They adopted the EU Guidelines on Recognition of New States in Eastern Europe and the Soviet Union. States have to respect the rules of human rights. It was a regional attempt to push for new criteria in the form of guidelines. These criteria are an indication for the establishment of the identity of a new state and they reflect the change in value in international society. S EU Guidelines on Recognition ofNew States • Wrong to consider this Declaration as an element of practice and opinio juris purporting to introduce a new customary requirement for the acquisition of legal personality • It is a political guidance document It is a political guidance document, it is not creating customary rules. 32 S international cooperation: characteristics INTERGOVERNMENTAL COOPERATION  CFSP (art. 24 TEU) reciprocity • sovereign states • consensus or unanimity as a rule • decisions are applicable in the domestic legal system through national implementing acis • The organization does not rise above MSs but remains belween ils members • More about cooperation SUPRANATIONAL COOPERATION (EU) -> TFEU mutual trust • new organization with legal personality - the organizalion slands above its mss • states are members • the council adopts decisions throughqmv •own competences • institutions and instruments • decision making procedures •direct lhects (vertical and horizontal] in mss • more about integration Historical context: The history of relationships at international law level changed at some point because of the entry of new subjects into the international law scenario. This phenomenon started to appear during the 19th century and probably it happened because states started to be more stable among their relationships and they were willing to cooperate with each other. >Example: Vienna congress, re-design Europe > River commissions were also established --> It was a commission that aimed to regulate shared national resources for navigation, pollution purposes etc. If states wanted to cooperate, another relevant topic for states that wanted to cooperate was that of cooperating in the transport and communication areas. > Example: The universal postal system arose in 1974 High politics: when states deal with security at international level Low politics: when states cooperated in transport, communication etc. However, there was a problem in the system of the league of nation. They were not able to prevent IIWW and secondly, it was too easy to withdraw from this system. > The league of nations had an article about withdrawal. Another high politic organization was the Atlantic Charter of 1933 that led to the San Francisco Charter that was the basis for the formation of the UN. During the 50es a process of integration began, this process brought to the creation of the EU. > much more intrusive 1951: Establishment of the coal and steal community ECSC. Council of Europe is not an institution of the EU, it is a fully flagged international organization composed by 47 Member states (also Turkey). The council of Europe is the international organization within which the European convention of human rights and the court of human rights was established. In parallel we have the NATO treaty in 1949 about military interventions. Major regional international organizations also arose: > Organization of American states in 1948 35 > 1963 out of the colonization emerged the Organization of African Unity > Arab League in 1945 We have a problem to distinguish between international organizations. There are many ways to cooperate internationally: We will study essentially the intergovernmental cooperation. The only way to cooperate supranational is the EU. The EU is also an international organization but a very peculiar one. Supranational cooperation’s aim is to integrate the national systems to establish a common market. It is composed by MSs and gives rise to various institutions. It gives much more power to the entities and gives them power to act. Only the EU has exclusive competencies (not other IO). Qualified majority voting applies. It is very intrusive, even the secondary legislation may have direct effect (directives, regulations). All these features are unique, it is not common in intergovernmental cooperation that institutions are given so much power because states want to retain their power. The founding instrument of this way to cooperate comes from a provision contained in a treaty. The normal way to cooperate at international level is the intergovernmental cooperation. Usually in int’l law don’t allow entities above them, so to cooperate they established IO. S International organisations: from coexistence to cooperation • The role of IOs in promoting the development of international law • Created by States in order to exercise a task or function that States are unable or unwilling to perform themselves. • IOs as legal subjects separate from Member States when it comes to conclusion of treaties or official missions by staff abroad S Trying to define IOs - I • Governed by public international law • If governed by domestic law the organisation is called non-governmental organisations (Greenpeace, Amnesty International) If it is governed by international law it is an international organization (IO) If it is governed by domestic law it is a non-governmental organization (NGO) NGOs cooperate and participate internationally but the applicable law is domestic law. They are not international organizations technically speaking. Usually, they are registered under one country but they operate internationally, supranationally. They contribute to the development of international law by participating in international law meetings (UN level for example) they do have an influence international law, they do play a major role for international law but they do not cover international law. S Trying to define IOs - lI > Fluidity of categories, however as a minimum: - created between States - on the basis of a treaty - with a "distinct will": • the lOs possesses at least one organ which has a will distinct from the will of its MSs otherwise it 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 (e.g., G8, G20) IO are governed by int’l law and created by states through funding treaties. The other element needed to highlight the existence of IO is that the entity needs to have at least one organ with distinct will from the will of the MSs, the extreme example is the EU where institutions have supremacy over MSs. Being actors in 36 int’l law means having both obligations and right. We see the distinct will in the establishment of organs of IO, at least one organs must have a will distinct from the will of the MSs. When we have these minimum elements we speak about the establishment of an IIO. S From associations to lOs • EXAMPLE: Conference on Security and Cooperation in Europe (CSCE) held in Helsinki in 1975 for the first time • Progressive institutionalisation from the 1990s with creation of ad hoc organs and in 1994 creation of the Organisation for Security and Cooperation in Europe (OSCE) - Even though it does not have a treaty legal basis but only soft law documents Sometimes it might happen that something that was initially created as a conference to collaborate and cooperate, became an IO through a progressive institutionalisation. S Classifying IOs • Functions: economic; peace and security - WTO - North Atlantic Treaty Organisation (NATO) • Membership: universal or regional - NATO - EU - UN - Council of Europe • Intergovernmental or supranational • Political v technical - UN v WTO We can classify IOs according to their function. The EU is a member of the WTO. The UN has a universal membership - Council of Europe has a regional membership It’s difficult to distinguish between political and technical, this distinction is not used anymore S Specialized agencies as IOs • Of the UN:  World Health Organisation (WHO;  International Labour Organisation (ILO);  International Maritime Organisation (IMO);  Food and Agriculture Organisation (FAO);  United Nations Educational, 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) ICAO gives non-binding rules on aircraft Not all of them allow only states as members, some allow also non fully fledged recognised states as members. For example Kosovo is a member of IMF. WTO includes also non-states such as the EU and Hong Kong 26/10 S tension - two opposite poles • Implied powers doctrine V principle that the IO and its organs can only act on the basis of powers conferred on it (principle of attribution) 37 legal personality through the funding treaty. Ex art 104 of UN Charter Sometimes they are not clear in the text because they only refer to legal personality. But there is a different between international and domestic legal personality. The domestic legal personality is for example private law and civil law. 27/10 S Art. 104 UN Charter "The Organisation 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 fulfilment of its purpose" This article doesn’t mention international legal personality directly. It is function oriented. The international legal personality becomes something that exists at the level of relationship with other IOS or states. But from this article you retrieve more a domestic perspective rather than an international one. S TEU and TFEU • Art. 47TEU: "The EU shall have legal personality" • Art. 335 TFEU: "in each of the MSs, the Union shall enjoy the most extensive legal capacity accorded to legal persons under their laws" Also here there is no clear reference to an international legal personality. • will theory The international legal personality of the entity is given by the will of the funding states through for example the treaty. It is not really explaining where the int’l legal personality comes from • theory of recognition Maybe the int’l legal personality comes from recognition. When a lot of states are recognising an IO, it acquires international legal personality. But also this theory does not respect much the functionalism theory, if you put only the recognition element it does not comply with the idea that the it is a creature of the funding states. • the theory that personality has to follow the same pattern of the personality of the state When you have the minimum criteria for the establishment of an IO, the int’l legal personality follows. But it does not explain where it come from either • presumptive personality The ICJ wanted to introduce this presumptive personality, but there is no clear provision establishing it. ICJ advisory opinion 1949 S Reparation for injuries • A legal problem arose in 1948: a UN official was killed in the course of operations in Palestine. • The newly formed United Nations had appointed Count Bernadotte as the mediator in the first Israeli- Arab conflict, with Israel fighting for independence. With his first partition plan, Bernadotte angered many extremist forces within Israel. He came to be seen as an enemy of Israel, and was assassinated in Jerusalem at point blank range by the Jewish group LEHI The UN sent a mediator to intervene in the conflict Israel-Palestine. Bernadette was killed during the mission. The legal question behind was if it was possible for the UN to sue the state of Israel for what happened to its mediator carrying out his function? 40 Classically speaking the home county of Bernadotte, Sweden, could have also sued Israel. This is called diplomatic protection, it is an institution through which a state can undertake legal actions against a state to protect its nationals. Traditionally the individuals were not subjects of international law, they are subject of their state of nationality so only the state could sue another state. State’s responsibility encompasses both claims in front of a judge and claims made in a diplomatic way. The General Assembly asked the ICJ if IOs, in this case the UN, could be allowed to claim reparation from the state of Israel for the killing of Bernadotte S ICJ advisory opinion 1949 The Court held that: 'fifty States, representing the vast majority of the members of the international community, had the power, in conformity with international law, to bring into being an entity possessing objective international legal personality, and not merely personality recognized by them alone, together with capacity to bring claims' This opinion established the presumptive international legal personality of the UN. “fifty States, representing the vast majority of the members of the international community, had the power” —> reflects the will theory “bring into being an entity possessing objective international legal personality” —> presumptive personality theory “not merely personality recognized by them alone” —> recognition theory You can see all the theories in this passage, but it has been interpreted in a way in which it gives presumption of int’l legal personality on the basis that you are exercising it S ICJ advisory opinion 1949 • The concept of functional personality: (...) the Organization was intended to exercise and enjoy, and is in fact exercising and enjoying, functions and rights which can only be explained on the basis of the possession of a large measure of international personality and the capacity to operate upon an international plane. […] It must be acknowledged that its Members, by entrusting certain functions to it, with the attendant duties and responsibilities, have clothed it with the competence required to enable those functions to be effectively discharged. Accordingly, the Court has come to the conclusion that the Organization is an international person. That is not the same thing as saying that it is a State, which it certainly is not, or that its legal personality and rights and duties are the same as those of a State. (…) […] Under international law, the Organization must be deemed to have these powers which, though not expressly provided in the Charter, are conferred upon it by necessary implication as being essential to the performance of its duties. (...) The international legal personality of an IO is different than the one of states, because the exercise of the functions of an IO is much more limited because it derives from the conferral of power by states. The powers conferred upon the IO are only the ones needed to carry out its functions. S ICJ advisory opinion 1949 'Having regard to its purposes and functions already referred to, the Organization may find it necessary, and it has found it necessary, to entrust its agents with important missions to be performed in disturbed parts of the world. [...]. The obligations entered into by States to enable the agents of the Organization to perform their duties are undertaken not in the interest of the agents, but in that of the Organization. When it claims redress for a breach of these obligations, the organization is invoking its own right, the right that the obligations due to it should be respected. […)' This speaks in terms of diplomatic protection, it is the state or IO asking for the reparation and its own rights. In this case the person who suffered the damage was at the same time an agent of the organization 41 so the IO can ask for damage in its own right. Israel breached both international law and the rights of the IO. Damages are for both the redress for the organization/state (diplomatic protection), which is a public recognition of guilt (satisfaction) and redress for the individual/agent and in this case it involves a reparation in favour for example of the family in the form of monetary compensation. There is this double level of reparation which encompasses moral, material monetary damage for the agent and public recognition and apology in front of the international community for the organization or state. Diplomatic protection is different from diplomatic immunity. • diplomatic immunity comes from the rule that states cannot be brought in front of domestic judges of another state because it would be in breach of the principle of state’s sovereignty. • Ambassadors are given diplomatic protection in the host state, this is something related to the activity of an agent abroad. Nowadays the individual does not need the state or IO to protect him because it has become a subject of international law so the individual can sue directly the state. 02/11 S In conclusion • The ICJ attributed to the UN international legal personality of a kind that falls short of the “fully fledged” attached to States • IOs have legal personality proportional to the rights and duties strictly related to their statutory functions on a case-by-case basis. IOs have legal personality according to their function. So IOs international legal personality is limited and narrower than the international legal personality attached to states. • other subjects of international law  Individuals  NGOs  Holy See  International committee of the Red Cross  Multilateral enterprises Are there other subjects and actors operating at international level? Throughout time new actors came in and are on their way to become subjects of international law. S Role of the individual • Up until recent times, there was no role for the individuals in the creation, enforcement of international law • The rules of international law dealing with individuals were addressing States – Treatment of aliens – Diplomatic protection Traditionally speaking individuals were considered as subjects of states and states could intervene and defend them internationally, this is called diplomatic protection. It is an interstate claim. There are some procedural requirements of diplomatic protection for the respect of the other state. For example the individual first has to exhaust domestic means of protection, after that the state might decide to start a claim and sue the other state in front of an international adjudications. There is a minimum standard to treat aliens in your territory because of the reciprocity principle. If a state sue another and receives compensation it is the state that decides whether to give the money to the individual or not. Throughout time things started to change because of the change in values. 42 • In 1984 two German nationals living in the United States, the brothers Karl and Walter LaGrand, were both convicted of murder. • At no time were the LaGrand brothers informed by the competent US authorities of their rights under Art. 36 (1) (b) → Vienna Convention on Consular Relations (1963) (‘VCCR’) to communicate with their consular post. Nor had Germany’s consular post been informed of the arrest, conviction, and sentencing of two of their nationals. At no point in these two sets of proceedings had the LaGrand brothers raised the issue of the lack of consular assistance, or that they had the right to be so informed ‘without delay’ (Art. 36 (1) (b) VCCR). This case is relevant for the role of individual and for the types of reparation that a state might ask when a wrongful act is established internationally. It was the example of diplomatic protection through a court of law indeed the case is called Germany v US. There are 2 brothers, German nationals, living in the US convicted for murder and sentenced to death by a first instance court of Arizona and tried to appeal to the Supreme Court of Arizona but lost. They realised that they could have had a consular assistance from their country of nationality, so Germany. There is the Vienna convention on consular relations 1963, Germany and USA were both parties to the convention. Article 36 1(b) - Communication and contact with nationals of the sending State 1.With a view to facilitating the exercise of consular functions relating to nationals of the sending State: (b) 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 pending trial or is detained in any other manner. Any communication addressed to the consular post by the person arrested, in prison, custody or detention shall be forwarded by the said authorities without delay. The said authorities shall inform the person concerned without delay of his rights under this subparagraph; There is an obligation of notification by the receiving state to the sending statae. At the time of the case it was not clear whether the order was compulsory or not. The brothers were executed and Germany sued the US because the rights of the German nationals were not protected enough. All the interpretation of the ICJ revolves around this provision. Germany asked the promise of non- repetition for reparation. 03/11 S Article 36 VCCR - Communication and contact with nationals of the sending State • 1.With a view to facilitating the exercise of consular functions relating to nationals of the sending State: – (a) consular officers shall be free to communicate with nationals of the sending State and to have access to them. Nationals of the sending State shall have the same freedom with respect to communication with and access to consular officers of the sending State; – (b) 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 pending trial or is detained in any other manner. Any communication addressed to the consular post by the person arrested, in prison, custody or detention shall be forwarded by the said authorities without delay. The said authorities shall inform the person concerned without delay of his rights under this subparagraph; Is this right giving to individuals a certain importance or is it referred only to states? The majority of legal doctrines claim that individuals are not fully fledged subjects of international law. It is the first case in which individuals’ rights came up in paragraph 77. 45 The position of the USS was that the rights established by the convention were only owed to the states parties to the convention paragraph 76. It is a minimum right of protection of human rights that comes out in international law. Human rights law deals with the protection of the private sphere, the right to life, equality before the law, freedom of expression, the right to work, social security, and education.. It however does not create individual human rights. The role of individuals arises in international law when the rule is addressing the individual directly so the individual has to respect certain obligations. S ICJ’ finding • The Court recognized that the VCCR not only provided for the rights of States with regard to consular relations but also, that its Art. 36 (1) (b) ‘creates individual rights, which, by virtue of Article I of the Optional Protocol, may be invoked in this Court by the national State of the detained person’. • The Court based this finding solely on the text of the provisions set out in Art. 36 VCCR and found that ‘the clarity of these provisions, viewed in their context, admits of no doubt’. • Having made this determination, the Court did not deem it necessary to examine whether those rights were, as argued by Germany, also part of the international standard of due process and therefore to be treated as → human rights. S Klabber’s position • Individual is central to international law • Whether or not it is also a “subject” of international law “seems a bit beside the point” • It is more important to create decent international legal rules for individuals S NGOs - I • Traditionally NGOs exercised their influence through domestic politics • Globalization has seen the emergence of an international public opinion, whose representation is mainly conducted by NGOs They are influential in international law. The role of NGOs in international law is also institutionalised ex art 71 Charter of the UN. NGOs are not subjects of international law. S NGOs - II • Specific role in the elaboration of multilateral conventions (Geneva Conventions) • Art. 71 UN Charter provides for the participation of NGOs in the meetings of Economic and Social Council (ECOSOC). They enjoy consultative status, which may be general, special or ad hoc • Amici curiae in international adjudication When conventions are discussed and adopted, in many situations NGOs play an expert role for advising governments and technical bodies in these multilateral agreements. Their role is not legally binding but as observers they play anyway a crucial role. Amici curiae: ICJ and ECHR may accept amicus curiae. The rationale is someone external from the judgement giving an advice or expert opinion. This is important for the development of int’l law and this one’s under the consultative, expert role that organizations can give to tribunals. S NGOs - III • The importance of NGOs’ lobbying activities: the so-called “‘corridors’ diplomacy” • The negotiation of the Rome Statute • Problems related to the proliferation of NGOs Holy See (Vatican City) 46 Another entity is the Holy See it has a status of for example observer but historically speaking it has seen as a subject of international law. They have representations and diplomatic exchanges. The key role is the historical recognition of the Holy See by states as an international law subject. International committee of the Red Cross It is something set in Switzerland but it has been having relòationships with other states and entities and therefore have been seen as having a prominent relevance as subjects of international law. It has treaty making power. Multinational enterprises Companies have been given the role of potentially suing states in front of the tribunal established under the bilateral investment treaty (BIT). This is a reflexion of international legal personality. • global law It starts from 2009 with a few scholars. In Italy the leading figure is professor Sabino Cassese. At some point, essentially from administrative law, they saw something was happening at the level of transnational relationships, such as informal networks, the adoption of certain international standards ex ISO, these are soft law instruments. Global law is happening beyond states and tried to describe this phenomenon arising from administrative law. Global law / transnational law is something national, international, supranational and transnational in character at the same time. Global law is called a movement, a body of law, it is out of the control of states, independent from other bodies of law and composed by regulatory regimes such as non/state actors, organizations, NGOs etc. Ex the base committee of banking supervision was set up. At some point there was also a big discussion about this mechanism and new actors outside states. Conference: changes in int’l law making: actors processes and impact. States contributed in the creation and execution of this global entity but they became not relevant to global law. From the point of view of int’l law, global law is still part of international law. Int’l law would be more effective if the instruments of global law worked within it. So global law is an instrument of international law and not the other way around. Global law expert committees are actually not that independent from states. They seem so independent because their function is somehow obscure but if states wanted to dismantle them they could do so. It is just an appearance of independence, states are still the masters of the law. 47 A commission of enquiry is usually a commission of experts that clarify factual points or look for some technical aspects of a certain situation. The aim is to for example find evidence and clarify facts to be used in future legal proceedings. Tribunals might also want to use the outcomes of commission of inquiry. Of course states are not happy with commissions of inquiry and do not want to recognise the outcome, sometimes they do not even allow the commission of enquiry to enter the state. The outcomes of commission of enquiry are not biding, however the higher authority establishing the commission of enquiry is relevant to determine the importance of the outcome. The more authoritative is the institution establishing the commission, the more authoritative is the outcome of the commission. The commission of inquiry only clarifies certain facts but t does not enter into the legality. The conciliation commission is the one dealing also with the legality of the facts, but the outcome is also not binding. S Commission of inquiry > Resolution A/HRC/RES/49/1 • Resolution adopted by the Human Rights Council on 4 March 2022 • Independent International Commission of Inquiry on Ukraine • Three human rights experts, to be appointed by the President of the Human Rights Council - To collect, consolidate and analyse evidence of such violations and abuses ... In view of any future legal proceedings - To document and verify relevant information and evidence, including through field engagement, and to cooperate with judicial and other entities - To Identity, where possible, those individuals and entitles responsible for violations or abuses of human rights or violations of international humanitarian law, or other related crimes, in Ukraine S Independent International Fact-Finding Mission on Myanmar • In March 2017, the United Nations Human Rights Council (A/HCR/42/50) established the Independent International Fact-Finding Mission on Myanmar (IIFFMM) to establish the facts and circumstances of the alleged human rights violations by military and security forces, and abuses, in Myanmar. • The mandate of the IIFFMM ended in September 2019. It is referred to the Gambia v Myanmar case. At the beginning, when they established the existence of a legal dispute between the 2 they also established the Independent International Fact-Finding Mission on Myanmar. S Intervention of the SC • The SC could also autonomously tell the parties (recommendations) to use certain procedures: Art. 33.2 UN Charter • Art. 37.1 UN Charter: if the parties to a dispute which is likely to endanger the maintenance of international peace and security are not able to settle it with the means at their choice, they shall refer it to the SC (not used much) • The SC could itself perform conciliation entering into the merits of the dispute and recommend the terms of settlement of the dispute as it may consider appropriate: art. 37.2 UN Charter (non-binding) Art 33.2 “The Security Council shall, when it deems necessary, call upon the parties to settle their dispute by such means.” There is a role of non binding recommendation of the SC. S Arbitral or judicial mean of dispute settlement • Three options: 1. State v. State 2. private actor v. State —> company v state 50 3. international community v. private individual —> international criminal responsibility of a private individual 1 and 2 are states’ responsibility 3 concerns international criminal responsibility, for example accusation of genocide against the head of state S Arbitral or judicial means of dispute settlement > In general, lack of compulsory mechanisms of law-determination unless there is: • general agreement of arbitration or judicial settlement for future disputes • arbitral or judicial clause contained in a treaty - Article IX of the Genocide Convention: "Disputes between the Contracting Parties relating to the interpretation, application or fulfilment of the present Convention, including those relating to the responsibility of a State for genocide or for any of the other acts enumerated in article Ill, shall be submitted to the International Court of Justice at the request of any of the parties to the dispute." International adjudications works on the consent of states. There isn’t a compulsory mechanism of law determination unless they are given consent to do so. In domestic legal systems there is a compulsory mechanism of law determination. Internationally you need either a general agreement of arbitration or judicial settlement for future disputes or an arbitral or judicial clause contained in a treaty. The first option only refers to future disputes settlement, the second option is different because in the final articles of multilateral treaties usually you have an arbitration or judicial clause, for example art 9 of the genocide convention. This article was used in Gambia v Myanmar. 9/11 Arbitral or judicial means of dispute settlement In general, lack of compulsory mechanisms of law-determination unless there is:  general agreement of arbitration or judicial settlement for future disputes  arbitral or judicial clause contained in a treaty > Article IX of the Genocide Convention: “Disputes between the Contracting Parties relating to the interpretation, application or fulfilment of the present Convention, including those relating to the responsibility of a State for genocide or for any of the other acts enumerated in article III, shall be submitted to the International Court of Justice at the request of any of the parties to the dispute.” Nothing works at the international level without the consent of the states, especially in dispute settlement. When it comes to dispute settlement, it means that you need to have titles of jurisdiction to be approved based on two scenarios. The general agreement is usually a bilateral treaty because it is btw two states in a legal dispute agreeing on submitting a certain dispute to a judge. So, this agreement refers to the dispute settlement only and if they decide who is the competent judge. Any other type of bilateral agreement follows the rule of treaty law. The other one is the arbitral or judicial clause contained in a treaty (e.g. article IX of the Genocide Convention). The 1966 Covenant on Civil and Political Rights adopted at UN level for this treaty to operate in terms of the operational of the human rights committee. It is a committee checking for compliance, as much as courts and tribunals do. In order to trigger this compliance mechanism, states of the covenant had to accept and ratify the optional protocol, which allows the submission to the human rights committee to be activated. It means that if you are just part of the covenant you are not accepting the functioning of the human rights committee whereas in the Genocide Convention it is built within the treaty. In the covenant, there are two different pieces of legislation. 51 The overall consideration is that dispute settlement is not compulsory, you have to consent to it. In EU law, an example of compulsory dispute settlement is the ECJ: you accept to be part of the EU and you inherently accept its jurisdiction as well. Non-permanent court  Arbitration as the traditional means of dispute settlement  Possibility of choice with regard to arbitrators and applicable law  The Permanent Court of Arbitration > established in 1899 during the First international conference for peace held in the Hague > now it is a list of experts that can be nominated as referee or arbitration commission Arbitral tribunal or judicial settlements? A typical example of arbitration tribunals is the Permanent Court of Arbitration. Arbitration is usually not a permanent tribunal like the ICJ or the ECJ. This is a situation that arises when the dispute is open and states must decide to refer the case to arbitration. In fact, it is much more flexible than the ICJ, first of all, because you do not have a permanent body but you have an ad hoc commission also giving the possibility of choosing the referees to the parties. It is basically a list of highly qualified arbiters managed by a secretariat. The parties in the dispute choose the referee, usually one per party + a third one agreed upon by the two parties. In the last years, it has been working a lot for many dispute settlements, especially for investment disputes, not just the ones of individual v states but also the ones of state v state. The clause contained in many multilateral treaties either refers to the ICJ or to the PCA. When this happens, they usually have to trigger the secretariat and ask for the listing of the case etc. The PCA deals with:  Interstate arbitration  Investor-state arbitration  Contract-based arbitration Depending on the type of arbitration, the choice of the applicable law is a very interesting topic. Compared to the ICJ, the PCA has a broader jurisdiction. Is arbitration binding? Jurisdiction at the international level is based on consent and yes, it is binding for the parties to the dispute because with the consent they also agreed to abide by the decision of the court. As to the rule of the precedent within this situation: there is no clear provision on the matter but for the sake of consistency and non-contradictory judgments they usually are (even though we have seen many times judgments may have different interpretations). Nicaragua v US Nicaragua wanted to use Art 94 of the UN Charter: "1. Each Member of the United Nations undertakes to comply with the decision of the International Court of Justice in any case to which h it is a party. 2. If any party to a case fails to perform the obligations incumbent upon it under a judgment rendered by the Court, the other party may have recourse to the Security Council, which may, if it deems necessary, make recommendations or decide upon measures to be taken to give effect to the judgment.” When dealing with sanctions, you may have recourse to the Security Council to help a winning state to make the losing state compliant. It is a very political scenario. In international law, the judgment tells you that there had already been a breach of a substantive rule. What you can do in the case of a losing state not complying is to have a countermeasure linked to the first 52 59. Declarations of acceptance of the compulsory jurisdiction of the Court are facultative, unilateral engagements, that States are absolutely free to make or not to make. In making the declaration a State is equally free either to do so unconditionally and without limit of time for its duration, or to qualify it with conditions or reservations. In particular, it may limit its effect to disputes arising after a certain date ; or it may specify how long the declaration itself shall remain in force, or what notice (if any) will be required to terminate it. However, the unilateral nature of declarations does not signify that the State making the declaration is free to amend the scope and the contents of its solemn commitments as it pleases. Paragraph 60 60. In fact, the declarations, even though they are unilateral acts, establish a series of bilateral engagements with other States accepting the same obligation of compulsory jurisdiction, in which the conditions, reservations and time-limit clauses are taken into consideration. In the establishment of this network of engagements, which constitutes the Optional- Clause system, the principle of good faith plays an important role ; the Court has emphasized the need in international relations for respect for good faith and confidence in particularly unambiguous terms, Declarations even if they are unilateral acts, establish some bilateral engagements such as reciprocity Paragraph 73 describes the approach of the ICJ 73. It may first be noted that the multilateral treaty reservation could not bar adjudication by the Court of all Nicaragua's claims, because Nicaragua, in its Application, does not confine those claims only to violations of the four multilateral conventions referred to above (paragraph 68). On the contrary, Nicaragua invokes a number of principles of customary and general international law that, according to the Application, have been violated by the United States. The Court cannot dismiss the claims of Nicaragua under principles of customary and general international law, simply because such principles have been enshrined in the texts of the conventions relied upon by Nicaragua. The fact that the above- mentioned principles, recognized as such, have been codified or embodied in multilateral conventions does not mean that they cease to exist and to apply as principles of customary law, even as regards countries that are parties to such conventions. Principles such as those of the non-use of force, non-intervention, respect for the independence and territorial integrity of States, and the freedom of navigation, continue to be binding as part of customary international law, despite the operation of provisions of conventional law in which they have been incorporated. Therefore, since the claim before the Court in this case is not confined to violation of the multilateral conventional provisions invoked, it would not in any event be barred by the multilateral treaty reservation in the United States 1946 Declaration. Nicaragua’s claim was not only on the principles established by the Charter, but also to the relative principles of customary international law arising from the ones established under the Charter. S Enforcement of ICJ Judgments • Art. 94 of the UN Charter specify that: “each Member of the UN undertakes to comply with the decision of the International Court of Justice in any case which is a party. If a party to a case fails to perform the obligations incumbent upon it under a judgment rendered by the Court, the other party may have to recourse to the Security Council, which may, if it deems necessary, make recommendations or decide upon measures to be taken to give effect to the judgment”. • The discretionary power of the SC to decide reflects its political character. Ex Nicaragua v US The US was found to be in breach of the use of armed force provision. The US never presented in the proceedings and did not comply to the judgement. The ICJ has a general competence, any topic can be brought in front of it. When the judgement is not complied with, the mechanism does not provide for enforcement as we are used to think about it. 55 According to art 94 of the UN Charter, the decision becomes political which undergoes the problem of the functioning of the SC itself. The provision of the abstention of use of armed force is the most controversial provision in international law, therefore it is not a contradiction that the US did not abstain from the judgement. Nicaragua tried to trigger the SC because of the involvement of the US in the judgement as it is a permanent member of the GA. The matter was referred to the SC to establish the appropriate measure, non forceable measure established under art 41 Chapter 6, to make the US comply with the judgement. Counter measure are not included in the machinery of the dispute settlement. However they could be applied by some states as a reaction to the non compliance with the judgement by another state. It is a breach in response of another breach. In case of non compliance with a judgement there is no higher court you could appeal to, the only possibility is to go to the SC. The matter becomes political because the SC is the most political organ of the UN and all states would know that a state is not complying with the ICJ judgement. Art 94 describes the very limits of int’l law and adjudication, there is no second instance and the only other option is to push with all other means of persuasion in front of the int’l community to make the state comply with the ICJ judgement. S ICJ – advisory jurisdiction - Art. 96 UN Charter - It is not binding - Request for advisory opinion may be ‘sponsored’ to by-pass jurisdictional hurdles (see Kosovo) - It may concern ‘politically-sensitive’ questions (Namibia, Legality of the Wall, Kosovo) When you have advisory opinions, ex on the Declaration of Independence of Kosovo, they are not binding but if made by the ICJ, they are very important and relevant to shape international law. The ICJ advisory opinions clarify the law, this is why they are so relevant for the development of international law. S Permanent tribunals with jurisdiction extending to inter-state disputes: - International Court of Justice - International Tribunal for the Law of the Sea - European Court of Human Rights - Inter-American Court of Human Rights - African Court of Human and Peoples' Rights - WTO Appellate body The enforcement of the judgement depends from the tribunal. If we look at the ECHR it has an additional organ to refer to which is the Committee of Ministers, which supervises the implementation at domestic level of the of the judgement (art 36.2). The committee of ministers is in charge of making sure that the state in question complies with the judgement. The committee of ministers inside the Council of Europe is a political organ because it is made of the representatives of the member states. S The WTO: historical developments • The Bretton Woods system • The Havana Conference and the draft charter for the International Trade Organisation (1948) • The General Agreement on Tariffs and Trade (opened for signature in October 1947 but allowed for provisional implementation pending the entry into operation of the ITO) S The WTO: normative structure About 60 agreements, annexes, decisions and understandings: 56 • Agreement establishing the WTO Goods and investments (including GATT 1947, GATT 1994, the Agreement on Trade Related Investment Measures) • General Agreement on Trade in Services (GATS) • Agreement on Trade related Aspects of Intellectual Property Rights (TRIPS) • Dispute Settlement Understanding (DSU) • Reviews of governments' trade policies (TPRM) The GAT is also described as a self contained regime because it established the WTO and the rules are contained in the system. S the WTO: some data • It becomes operational on 1 January 1995 with the entry into force of the Marrakesh Agreement Establishing the World Trade Organisation (end of ‘Uruguay Round’) • Currently 153 Parties (97% of world trade) • Seat in Geneva S The WTO: trading principles 1) Non-Discrimination (most-favoured nation rule and national treatment) in a framework of reciprocity 2) Binding and enforceable commitments (schedules of concessions) 3) Transparency (TPRM) 4) Safety valves (e.g Art. XX GATT, Art. XXIV GATT 1994 and GATS, special treatment rules for developing countries) 5) Prohibition of quantitative restrictions S The dispute settlement procedure (DSP) - I • It is regulated under the DSU (Annex 2 of the WTO agreement) • It is based on the exclusive authority of the Dispute Settlement Body (made by representatives of all WTO members) It operates as a self contained regime, there are rules inside the regime The dispute settlement body under the WTO is an example, so it also allows for counter measures. S The dispute settlement procedure - lI • Obligation to consult and negotiate (60 days) • After 60 days, the DSB may be invested of the dispute with a request to appoint a panel: the parties have to submit to the DSB a written request with a detailed description of the factual elements of the dispute, of the efforts to negotiate and of the legal issues involved therein S The dispute settlement procedure – lII • Obligation to consult and negotiate (60 days) • After 60 days, the DSB may be invested of the dispute with a request to appoint a panel: the parties have to submit to the DSB a written request with a detailed description of the factual elements of the dispute, of the efforts to negotiate and of the legal issues involved therein S The dispute settlement procedure - IV • During the procedure (made of a written and a oral phase) the panel facilatates a negotiated settlement of the dispute, at the same time, elaborating a recommendation aimed at restoring compliance At the end the Panel prepares the Final report containing its findings, including recommendations to the DSB. • DSB adopts the report (making the recommendations legally binding) unless it decides not to do so by consensus or unless a party to the dispute appeals to the Standing Appelate Body. S The dispute settlement procedure – V 57 • 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) which took note of the Articles and recommended them to the attention of Governments. Rapporteurs are in charge of the codification and they also prepare a own report in which they give their own view and propose their own direction on the codification. Ago proposed to introduce an art called state’s crimes. Former art 19 of the former state’s responsibility art delicts and crimes, it was deleted to avoid the criminalisation of the acts of states. States didn’t want to be criminalised with that terminology. Here we are in the realm of criminal states’ responsibility and not individuals’. The role of the special rapporteurs can push very forward by proposing some provisions. Professor James Crawford played a major role in the adoption of the art of state’s responsibility in 2001. The text was adopted through the work of the ILC so it was sent to the GA, which takes note of the art adopted in the 2nd reading through a resolution of the general assembly. The GA then sent the work to the states which are invited to align with the content of the work. The extent to which the state’s follow the text correspond to the degree of codification of the rules and pushes for progressive development. For example invocation of responsibility by 3rd states is part of the progressive development of the rules contained on the text of state’s responsibility Art 48 invocation of responsibility by 3rd state Art 54 possibility for 3rd state to adopt counter measures, either individually or together S liability I • State responsibility is not State liability • State liability: the State has to compensate for damage caused by its acts regardless of the existence of an internationally wrongful act Accountability is the wider box containing liability and responsibility. Liability does not refer to the breach, it means we are not interested in looking at a breach of a rule in force, what matters is that a damage has been caused and the obligation to repair for the damage arises out of the damage. The codification of state’s responsibility followed different oaths. At the beginning they did not distinguish btw liability and responsibility, they did it later on. S liability II • The issue has been developed into specialised regimes (composed of primary rules) of strict liability that include international funds to cover expenses • Examples are: damages deriving from oil pollution, marine environment, space activity 60 • Here material damage is a necessary element They differentiated the 2 topics. With liability you see there was a damage and even though the behaviour of state that committed the damage was lawful, there are still consequences for such damage, the state has to repair for such damage. Whereas responsibility refers to a breach of a rule by a state. S Constitutive elements of a wrongful act - | • The 2001 ILC (international law commission) codification • Constitutive elements of a wrongful act: a) violation of a rule binding for the State/breach of an international obligation and b) the act has to be attributed to the State under international law • A wrongful act (violation+attribution) determines a new legal relationship, named international responsibility They want to remain a convention, so soft law. With soft law state’s are more inclined to follow it. Art 59 of the articles of state’s responsibility These articles are without prejudice to the Charter of the UN It means that all the provisions contained in the articles on state’ responsibility are without prejudice of chapter 6 of the charter of the UN. That area lives in parallel, it follows its own rules and it follows the SC. How do you assess if there has been an international wrongful act? Article 2 - elements of an internationally wrongful act of a State There is an internationally wrongful act of a State when conduct consisting of an action or omission: (a) is attributable to the State under international law; and (b) constitutes a breach of an international obligation of the State. You need an obligation in place and a state breaching it Art 2 of the text specifically talks about the constitutive elements of an international wrongful act. • violation of a rule  objective element • Attribution of the violation to a state  subjective element The ICJ is in charge to establish the existence of an in’s wrongful act. The judges check the existence of the 2 constitutive elements of the int’l wrongful act. Also the international community can point out a breach at international level (self assessment) and some state bring a claim in front of the ICJ. Art 2 spells out the 2 elements needed to assess the existence of an int’l wrong act. The violation of a rule is the objective element, the attribution to the state is the subjective element/attribution element. The violation has to be attributed to a specific state. When the 2 elements are proved you enter in the real of international state’s responsibility S Constitutive elements of a wrongful act - II a) Violation of a rule: • DAMAGE: A material injury is not an essential element of wrongful acts (s.C. 'legal or moral injury') • FAULT: Fault is not a essential element of wrongful acts: it depends on the content of primary rules and on the obligations deriving therefrom It is not relevant if the rule is customary or conventional, what matters is that the rule is in force. You need an obligation established by a rule that is in force. Typically in domestic legal systems you need to prove a certain damage caused by the violation of the rule, also the principle of causation has to e established. In international law it works differently. When it comes to the objective element, the element of material damage that we would normally expect is not necessary to the assessment of an int’l wrongful act. We have situations in which there is the relevance of the moral and legal injury 61 Ex the aircraft of a a state enters into the airspace of another state and then goes back without causing any damage. This is a moral or legal injury not causing any material damage. It is technically a breach of the rule of the territorial sovereignty of state but there is no material damage. But it is still a violation establishing state’s responsibility. Material breach is not necessary however the breach of the primary rule might require a material damage to establish the state’s responsibility. Arterial damage might become a necessary element by looking at the content of the primary rule. For ex the rules on the protection of aliens. You have to see damages to the individual to establish state’s responsibility. It is the primary rule that gives you the necessary elements for the establishment of the wrongful act Synallagmatic obligations: Obligation of due diligence as opposed to obligation of result In the 1st you see if the stat has behaved in a certain way to show if the state has fulfilled the obligations contained in the primary rule Ex obligations in the Paris agreement as opposed to the ones contained in the Kyoto protocol are written as obligations of due diligence. In the Kyoto protocol they were written as obligations of result, you were no reaching the target, you were breaching international law. In the Paris agreement it is very difficult to establish the violation of an obligation of due diligence, you are not checking he achievement of the result but you check if the state has put enough effort and used all the necessary means to achieve their promise. This is another way to differentiate between 2 types of obligations. 29/11 Distinction between primary and secondary rules: • Primary rules: establish the rights and obligations • Secondary rules: legal consequences arising out from the violation of a primary rule The state responsibility regime is the general regime used when there is no special regime in place. This regime was codified by the ILC in 2001 “Draft articles of state responsibility for internationally wrongful acts” Necessary requirements for the establishment of an internationally wrongful act: • wrongfulness of an act: breach of an obligation in force for a state • Done by a state Art 1 Every internationally wrongful act of a State the international responsibility of that State. Art 2 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. Also an act of omission can be considered an internationally wrongful act. The establishment of a wrongful act is done with international law criteria. S constitutive elements of an internationally wrongful act - II a) Violation of a rule: • DAMAGE: A material injury is not an essential element of wrongful acts (s.c. 'legal or moral injury') • FAULT: Fault is not a essential element of wrongful acts: it depends on the content of primary rules and on the obligations deriving therefrom 62 The wrongfulness of an act of a State not in conformity with an international obligation towards another State is precluded if and to the extent that the act constitutes a countermeasure taken against the latter State in accordance with chapter Il of Part Three. Difference between counter-measures and sanctions: • In the area of state responsibility we call them counter measures (art 22 ILC), usually we refer to embargos, these are measures that become lawful as a reaction for a previous breach. They can be adopted by states individually or by a group of states. • If they are adopted not by states individually or by a group of states but by the SC they are called sanctions under Art 41 chapter VII UN Charter as non forceable measures. Resolution 1970: it is based on art 41, it establishes non forceable measures (smart sanctions) When we talk about reactions, involving a breach of int’l law, to previous violations, they become lawful. 30/11 Comparison btw art 41 UN (sanctions) and art 22 DASRIWA (counter measures) The wrongfulness is precluded provided that it is a counter measure in response of a previous wrongful act by another state. The element of proportionality is important to counter measures —> ex US v. France (1978) S US v. France (1978) • In 1978, Pan Am proposed service between San Francisco and Paris via London, flying a B-747 from San Francisco to London, and offloading the remaining passengers onto a smaller B-727 aircraft for the duration of the London-Paris journey. The French objected, arguing that "change of gauge” operations were not permitted under the US-France bilateral. • Pan Am commenced the "change of gauge" operations on May 4, 1978. After twice issuing warnings to the carrier, on May 3, the French gendarmes seized the B-727 at Paris Orly Airport, refused to allow the passengers to disembark, and ordered it returned to London. • In tum, the US suspended Air France's service to Los Angeles via Montreal, effective July 12. • Held. France had wrongfully denied Pan Am's "change of gauge" operations which were implicitly authorized by the bilateral, and the CAB's sanctions were lawful. Change of gauge = change of aircraft France said it was a breach because in the bilateral treaty there was no mention to a change of aircraft on the territory of a 3rd state. As a response to the breach the US suspended AirFrance’s services in LA airport. CAB = civil aeronautic board Reading the bilateral agreement in another way, even if there was no explicit provision, it had to be implicitly contained in the managing activity within the services It is coherent with the object and purpose of the bilateral treaty to allow the change of gauge in 3rd countries. The case went to international arbitration, in the decision we find the description of proportionality on relation to counter measures. S decision «…..] judging the 'proportionality' of counter-measures is not an easy task and can be best accomplished by approximation. In the Tribunal's view, it is essential, in a dispute between States, to take into account not only the injuries suffered by the companies concerned but also the importance of the questions of principle arising from the alleged breach. The Tribunal thinks that it will not suffice, in the present case, to compare the losses suffered by Pan Am on account of the suspension of the projected services with the losses which the French companies would have suffered as a result of the countermeasures; it will also be necessary to take into account the importance of the positions of principle which were taken when the French 65 authorities prohibited changes of gauge in third countries. If the importance of the issue is viewed within the framework of the general air transport policy adopted by the United States Government and implemented by the conclusion of a large number of international agreements with countries other than France, the measures taken by the United States do not appear to be clearly disproportionate when compared to those taken by France. Neither Party has provided the Tribunal with evidence that would be sufficient to affirm or reject the existence and the Tribunal must be sufficient to affirm affirm or reject the existence of proportionality in these terms, and the Tribunal must be satisfied with a very approximate appreciations” Art 51 is very bland, not so specific The proportionality is assessed approximately, discretionally of the tribunal and self-assessment of the state reacting are key elements to establish whether a counter measure is proportionate or not. There is a dedicated chapter to counter measures. The aim of a counter measure is not to punish not terminate the obligation, what you want is resuming the previous obligation. In fact there is art 52(3) describing such aim. Art 52 - Conditions relating to resort to countermeasures 1. Before taking countermeasures, an injured State shall: (a) call upon the responsible State, in accordance with article 43, to fulfil its obligations under Part Two; (b) notify the responsible State of any decision to take countermeasures and offer to negotiate with that State. 2. Notwithstanding paragraph 1 (b), State may take such urgent countermeasures necessary to preserve its rights. 3. Countermeasures may not be taken, and if already taken must be suspended without undue delay if: (a) the internationally wrongful act has ceased; and (b) the dispute is pending before a court or tribunal which has the authority to make decisions binding on the parties. Art 49 - Object and limits of countermeasures 1. An injured State may only take countermeasures against a State which is responsible for an internationally wrongful act in order to induce that State to comply with its obligations under Part Two. 2. Countermeasures are limited to the non-performance for the time being of international obligations of the State taking the measures towards the responsible State. 3. Countermeasures shall, as far as possible, be taken in such a way as to permit the resumption of performance of the obligations in question. Art 50 has to do with the substantive limitation for the adoption of counter measures • force majeur Art 23 - Force majeure 1. The wrongfulness of an act of a State not in conformity with an international obligation of that State is precluded if the act is due to force majeure, that is the occurrence of an irresistible force or of an unforeseen event, beyond the control of the State, making it materially impossible in the circumstances to perform the obligation. 2. Paragraph 1 does not apply if: (a) the situation of force majeure is due, either alone or in combination with other factors, to the conduct of the State invoking it; or (b) the State has assumed the risk of that situation occurring. Ex aircraft find itself in a storm Compliance with the obligation of territorial airspace cannot be respected however there is a restrictive interpretation of these circumstances. 66 If you have contributed to the creation of force majeur, or if the state assumed the risk of the situation, it cannot invoke it as an excuse • la detresse Art 24 - Distress 1. The wrongfulness of an act of a State not in conformity with an international obligation of that State is precluded if the author of the act in question has no other reasonable way, in a situation of distress, of saving the author's life or the lives of other persons entrusted to the author's care. 2. Paragraph 1 does not apply if: (a) the situation of distress is due, either alone or in combination with other factors, to the conduct of the State invoking it; or (b) the act in question is likely to create a comparable or greater peril. Difference between force majeur and distress: • force majeur: ex aircraft is entering the space of the other state without even noticing it, it was unforeseeable due to the conditions. • distress: an element of decision or awareness of the fact that you are breaching the territorial sovereignty remains but you still do so because it is the only reasonable thing to do considering the situation. There is the element of willingness to be assessed in court • state of necessity Art 25 - Necessity 1. Necessity may not be invoked by a State as a ground for precluding the wrongfulness of an act not in conformity with an international obligation of that State unless the act: (a) is the only way for the State to safeguard an essential interest against a grave and imminent peril; and (b) does not seriously impair an essential interest of the State or States towards which the obligation exists, or of the international community as a whole. 2. In any case, necessity may not be invoked by a State as a ground for precluding wrongfulness if: (a) the international obligation in question excludes the possibility of invoking necessity; or (b) the State has contributed to the situation of necessity. State of necessity is the wider box incorporating force majeur and distress. Necessity is even more difficult to prove. In Gapchikovo Naghimaro case tried to use the justification of ecological necessity Art 25 is expressed in a negative way: you can’t invoke necessity, unless; therefore the interpretation of this article is very restrictive. You can use necessity if you are able to prove you are protecting your own essential interest and at the same time you cannot endanger an essential interest of the state of which you are breaching the law S The content of international responsibility: legal consequences - | • Obligation to cease wrongful conduct • Obligation of reparation ◦ Reparation may be effected through: a) restitution; b) apologies and guarantees of non- repetition; c) compensation The 1st legal consequence of an international wrongful act is the obligation to cease the wrongful act. The other elements asked by states is usually the sanction of the wrongful act and the assurances and guarantees of non repetition as a form of satisfaction because it reinforces the rule that was breached in first place. The last element is reparation. • Obligation to cease wrongful conduct Art 30 - Cessation and non-repetition 67 22/11 The prohibition of the use of force in the UN Charter The charter was written in San Francisco and was adopted in 1945. Ius contra bello rule; it is an obligation not to use force in international disputes. Art 1: the main purpose is the maintenance of international piece and security. Art 4(2) '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' The Charter establishes a limited number of rules that deal with this issue. The main of this limited set of provision is art 2(4) This provision says that force is prohibited and war is no longer a mean to settle dispute between states. It came after 2 world wars, the international community reached consensus with regard to this provision. This is a revolutionary provision. By preventing wars, this provision has saved a lot of lives. Each word is very heavy in meaning. The ones that stand out are: • refrain, which establishes a negative obligation with regard to the threat and use of force. • Members, referees to the addressees of this provision which are states. States are both the authors of the illegal conduct and the beneficiaries of this rule. • International relations, this rule does not undermine the right of a state to maintain law and order within its territory as it pleases This provision can be divided into 2 parts: 1. All Members shall refrain in their international relations from the threat or use of force 2. against the territorial integrity or political independence of any state, or in any other manner inconsistent with the Purposes of the United Nations The biggest debate on the meaning on this provision is how in language term the second part, from against, relates to the first one and whether it strengthen or limits the first part. What type of force does it prohibit? 70 There are armed force, economic force (boycott), political force (threatening declarations) etc Force is broader than war, war was the term used in the Pact of Paris, war only refers to a factual situation and it is a narrow concept. The rules contained in the Vienna Convention tell how to clarify the meaning of the text of a treaty.  In this case the ordinary meaning is not very helpful.  The meaning that takes into consideration the context of the provision is much more relevant in this case. All the time the charter uses the word force it is preceded by the adjective aren’t so it is clear that it refers only to armed force. (It is not the decisive argument)  The meaning according to the object and purpose of the judgement give the decisive interpretation, the charter aimed at prohibiting armed force and not prohibiting for example economic sanctions. - There was a proposal drafted by Brazil that also envisaged int he scope of the provision economic cohertion it was not adopted so states were against it. - GA’s Declaration on friendly relation 1970 Declaration of definition of aggression 1974 also clarified the meaning of the provision. The definition of state is contained in the Geneva Convention, territory, permanent population, effective government and capacity to enter into international relationships with other states. According to the Montevideo convention recognition is not constitutive but only declarative in the establishment of a state. Ex Taiwan - China China does not recognise Taiwan as a state so f it attacks Taiwan is it a breach of art 2(4)? It is because Taiwan has all the requirements to be considered a state so it does not matter if China does jot recognise it as such. Ex Donetsk and Luhansk Putin recognised them as states but they aren’t because they do not possess all the Montevideo characteristics to establish statehood. In int’l relations, the fact that this provision does not prohibit civil war, it means that armed force is used beyond the territory of the state using it but not against another state. In and on both breach the provision unless allowed by the other state. Ex use of force by Israel in Lebanon It is a violation unless Lebanon has given its consent Use of force in another state are for example rescue operations of a national in another state. Unless these operations have been allowed they are a violation of art 2(4). Ex operation finale: operation that Israeli under-covered force took in Argentina in 1960 to capture Adolf Eichmann without the consent of Argentina. Unless you can prove there is general practise that tolerates these operations, they are in breach of the UN charter. Use of force within the border and consensual use of force beyond the border are not within the scope of the provision. The use of force must be beyond the borders of the state and without consent. Ex Italy droops a bomb on the US ambassador in Rome Is it a violation of art 2(4)? If you consider it in int’l relations it is otherwise it is not because it is within the country’s territory. The fact that the embassy is Italian territory does not exclude the fact that Italy are attacking the US. A dissenting opinion was given by the ICJ, it has not treated similar cases as violation of art 2(4) Ex Tehran hostages case: Iran taking hostage US diplomatic staff in Iran Ex Congo v Uganda, 71 The ICJ didn’t address these cases taking into consideration art 2(4) of the UN charter. The ICJ said they breached law of diplomatic immunity for example but did not mention the provision on prohibition of armed force. The ICJ did not consider art 2(4) probably because a violation of this article can legitimise a reaction of the same kind in response and make the situation degenerate. There are other rules that can be used to solve these kind of case. The distinction between the 1st and 2nd part can lead to 2 different results. You can use the 2nd part to state every force is prohibited so to strengthen the 1st part or you can use the 2nd part to say only armed force is prohibited and in this case it weakens the 1st part. This debate is also a debate between two important international scholars one was Derek * that claimed that art.2(4) only prohibited some uses of force and not all, by contrast * claimed that it was an absolute prohibition of the use of force. Derek's view was used by Belgium, in front of the ICJ, saying that they did not want to breach the territorial integrity of Serbia, they only wanted to protect the ethnical Albanian in Kosovo and so they did not breach such provision. Even if you can identify use of force against the territorial integrity and political independence of the other state, it is difficult to justify humanitarian intervention in other countries because it is still in violation of the purpose of the UN. Territorial integrity Political independence is the right of people of a state to choose its politics, culture and tradition. 23/11 2 interpretations: • narrow —> prohibition of force only against territorial integration and inconsistent with he purpose of the UN. This is a minority view. • Broad —> the object and purpose of this rule was to prohibit all types of force with the exceptions of use of force internally or in 3rd countries but with consent The idea was to create an international policeman, the SC, and not allow countries to seek for justice on their own. Prohibition of use of armed force against political independence and territorial integrity Is this provision only treaty law or has it become customary international law? It was a question posed in the Nicaragua v USA case. The ICJ said this provision reflects a customary international law rule, the majority of the judges said there is a general practise accepted as law. The elements of custom are general practice and opinio iuris. The states that use force say it is either an humanitarian operation or a response to a previous attack by the other state, after 1945 no state said the use of force is a lawful mean to settle a dispute between states. Ex Russia with regard to the invasion in Ukraine relied on the exceptions to the provision mainly referring to collective self-defense. Self-defence and authorisation by the SC are the exceptions of art 2(4). By relying on exception, states have demonstrated the opinio iuris, and the importance and effectiveness of art 2(4). Even if states claim that art 2(4) is not effective, they confirm it by referring to it. The condemnation by the majority of states and int’l organizations demonstrate that art 2(4) and other provisions are part of customary international law. Exceptions to the prohibition of the threat and use of force —> self-defence art 51 - self defence 72 • ICJ: Oil Platforms (2003), para. 72-'The Court does not exclude the possibility that the mining of a single military vessel might be sufficient to bring into play the inherent right of self-defence' > Nationals: no (but see Russia) > Diplomats: no • territory and warships An armed attack triggers self-defence, regardless the origin. If it attacks land, it is an attack against a state, it is more controversial if possessions of a state are attacked in foreign territory, ex warships. • nationals Ex If there is a terrorist attack in France against American citizens, attributable to Germany. Who has to be the target of the attack to have the right of self-defence to be triggered? France certainly had the right of self defence even if the attack was aimed against USA nationals. With regard to USA, the national practise of state is to treat the attack at criminal level. Ex The Russian Federation conducted operations in Georgia in relation to the separatist states. Russia justified the intervention stating that in the separatist states there was a majority of Russian speaking population that was under attack by Georgia. It was an intervention to protect nationals and an intervention in self-defence. It is hardly reconcilable with art 51. • diplomats If diplomats are under attack it is not really the self-defence or armed attack rule that comes into place, but rather the law of diplomatic immunity S reaction by what means? • Any kind of weapon (even nuclear), providing it is proportionate • Proportionality per se does not exclude any weapon • ICJ Advisory Opinion on the Legality of the Use and Threat of Nuclear Weapons (1996) Any means can be used as reaction but it has to be a proportionate reaction. Proportionality and necessity are the requirements of the reaction. First you have to prove the armed attack, secondly the reaction also has to meet certain requirements. The requirements are fixed by customary int’l law and not by the treaty. Customary int’l law is crystallised in the Ex Caroline Affair 1837. Canada was a British dominium. USA had just become independence and Canada had the same aim. The USA was offering help to the Canadian insurgents. The insurgents were staying in the USA and attacked British settlements in Canada. The insurgents used a ship threat after the attack went back to USA and the British followed and destroyed the ship. The USA accused the Brits and the Brits claimed they acted in self- defence. The case never reached a court, S requirements of the reaction 1) Necessity: no alternative means of redress is available at the time the decision to resort to force is made (IC), Nicarogua, para. 237) • Caroline incident (1837): US Secretary of State Webster wrote to Lord Ashburton that it would have been necessary 'to show a necessity of self-defence, instant, overwhelming, leaving no choice of means and no moment for deliberation' 2) Proportionality • The use of force in self-defence must be strictly limited to repelling the armed attack • It does not have to be in kind 3) Immediacy (for the ICJ) Flexible (not necessarily within a few minutes or days) 4) Report to the SC (Article 51) • Failure to do so does not affect the legality of the action in self-defence 75 • The absence of a report might however be a factor indicating that the state is not convinced it is acting in self-defence • It does not reflect customary international law (IC)) If you want to measure the necessity of the reaction, you can use self-defence only if you prove it is the last resource available. Self-defence has not punishing purpose, it is a reaction of defence. The Nicaragua judgement says that the state that reacts has to report the reaction to the SC. The duty to report does not reflect customary int’l law, it is only binding to UN member states. Non-report to the SC does not make the self-defence illegal but it make it seems as such. WHEN DOES THE RIGHT TO SELF-DEFENCE TERMINATE? • The right to self-defence terminates when the SC 'has taken measures necessary to maintain international peace and security" • Not any resolution, but only binding resolutions whereby the cessation of the defensive action becomes imperative > individual self defence Anticipatory self-defence Pre-emotive self-defence > Collective self-defence S anticipatory self-defence > According to Article 51, the armed attack must occur > Is there a right to self-defence if the armed attack is imminent? > 'Interceptive' sell-defence for Dinstein > Possible cases? • Cuba quarantine (1962) • Israel's bombing of the Osirak nuclear reactor under construction in Iraq (1981) • Six-Day War (1967): mobilisation of Egyptian armed forces at the Israeli border, closure of the Strait of Tiran to Israeli shipping If an armed attack is imminent, but hasn’t started yet is there a right of self-defence? Ex Pearl Harbour attack: according to art 51 the US could have reacted when the first bomb hit a US ship Another view is that it could have reacted at the moment where Japan violated the airspace. Dinstein Is a leading scholar, he said the attack of Pearl Harbour said the attack began when the Japanese forces left the basis and started their way towards Pearl Harbour. It is the view that is generally accepted. The idea is the Caroline test, it has to be necessary to react now because later it will be too late because the damage will have already occurred. Good faith and due diligence in acquiring intelligence are crucial in determining the response to prevent an attack. Ex 6 days war: there were significant signs that Israel was going to be attacked by the Egyptian forces. In particular, Egyptian forces were moving to Israel and particularly the Egyptian forces were moving to the Israeli border and their airplanes were ready to take off. Israel decided to act first, the Israeli forces destroyed the Egyptian air force still on the ground, this began the 6 days conflict. It is an example of excessive self-defence in response to an imminent attack. This is anticipatory self defence Ex Israel's bombing of the Osirak nuclear reactor under construction in Iraq. This is not a case of lawful anticipatory self-defence. This is pre-emptive self defence 76 • According to some authors, by using the word ‘inherent’, Article 51 intends to preserve the broad customary right of self-defence pre-existing the Charter • But ‘inherent’ was only included to emphasise the fact that the right of self-defence is an inalienable right of any state (including non-member states) which pre-existed the Charter (Nicaragua, para. 237) • A right of anticipatory self-defence can only be admitted consistently with the Caroline test, i.e. when: ◦ Further delay would result in inability to avert the attack ◦ ‘Imminent’: temporal or contextual meaning S pre-emptive’ self-defence: us national security strategy, 2002 ‘We must adapt the concept of imminent threat to the capabilities and objectives of today’s adversaries. (…) The United States has long maintained the option of pre-emptive actions to counter a sufficient threat to our national security. The greater the threat, the greater is the risk of inaction— and the more compelling the case for taking anticipatory action to defend ourselves, even if uncertainty remains as to the time and place of the enemy’s attack. To forestall or prevent such hostile acts by our adversaries, the United States will, if necessary, act pre-emptively’ This is the Bush doctrine. The language of this doctrine has been repudiated by the US administration S collective self-defence • Included at the instance of the Latin American states to make clear that the existing Inter-American system was compatible with the UN Charter • Should all states be subject to individual attacks (joint exercise of individual rights)? - No, it is a collective action in response to an armed attack against one state who has requested assistance • Only in favour of UN members? - US invoked it in support of South Vietnam Individual self-defence is the reaction by the individual itself, whereas collective self-defence is the reaction by the friends of the victim The request for help for the ICJ is a crucial requirement, the state must ask for help in order for the intervention to be lawful. Customary int’l law provides collective self defence, ex South Vietnam was entitled to invoke the help for self-defence requirements for collective self-defence (icj) 1) The occurrence of an armed attack 2) The victim must declare that it has been the object of an armed attack 3) The victim state must request the assistance of another state 4) Report to the Security Council 5) Necessity, proportionality, immediacy of the self-defence reaction The state acting in collective self defence have to inform the SC The US actions in and against Nicaragua were declared unlawful because of these collective self-defence requirements. The USA had to pay compensation to Nicaragua. USA withdrew the declaration of acceptance to the UN but the enforcement of the ICJ judgement was left to the SC. The US is a permanent member so it will exercise its vito power and stop the enforcement. The compensation has never been concluded. Pptx the UN collective security system S Introduction • The maintenance of international peace and security is the primary purpose of the United Nations (Art. I(I) of the UN Charter) 77 The trigger of resolution 1441 was the non compliance by Iraq to previous SC resolution. Resolution 1441 in the preamble reaffirms the territorial integrity and political independence of Iraq. Several states said they are not going to sink the resolution 1441 because they understand it as keeping the matter within the power of the SC but not as authorising the use of force. It was a view in contrast with the UK and USA. S Operation Odyssey Dawn (2011) • Resolution 1973 (2011):'4. Authorizes Member States that have notified the Secretary-General, acting nationally or through regional organizations or arrangements, and acting in cooperation with the Secretary-General, to take all necessary measures, notwithstanding paragraph 9 of resolution 1970 (20|1), to protect civilians and civilian populated areas under threat of attack in the Libyan Arab Jamahiriya, including Benghazi, while excluding a foreign occupation force of any form on any part of Libyan territory' • Resolution 2016 (2011):'5. Decides that the provisions of paragraphs 4 and 5 of resolution /973 (2011) shall be terminated from 23.59 Libyan local time on 31 October 2011;' It is the start of the 1st Libyan war. States were very cautious with the language, no invasion of Libya is authorised, just air and maritime operations. The resolution has an expiring date. S Resolution 2118 (2013) on Syria '21. Decides, in the event of non-compliance with this resolution, including unauthorized transfer of chemical weapons, or any use of chemical weapons by anyone in the Syrian Arab Republic, to impose 1 measures under Chapter VIl of the United Nations Charter' In the event of non-compliance, chapter VII is triggered by the SC. Only the SC can decide whether Syria has met its final opportunity to comply with the resolution and therefore it authorises to act under chapter VII. pptx humanitarian intervention and the responsibility to protect The only 2 exception contained in the chapter about the use of force in international relations are self- defence and authorisation by the SC. The most famous non codified exception to art 2(4) is the responsibility to protect S three different concepts  Any non-forcible intervention by a state or NGO to alleviate the suffering of a population (humanitarian assistance)  Any use of force by a state to evacuate its own nationals in danger abroad (intervention to protect nationals)  Any threat or use of armed force by a state in the territory of another state to protect the fundamental rights of the citizen of the latter state (humanitarian intervention) You are acting on behalf of humanity and not in your own interests. S UN Charter • No express reference to humanitarian intervention • There is no problem if the territorial state gives its consent to the intervention Authorization of the SC • Article 51? ◦ Only if the humanitarian crisis amounts to an armed attack You could have the authorisation of the SC for humanitarian intervention ex Libya. The problem rises when you have to find another authorisation to act, such as the doctrine of humanitarian intervention ex in Myanmar. 80 You need to build a legal argument demonstrating you are not aiming at taking control of the country, good faith is always implicit. You can build that argument using 2 layers: treaty layer and customary layer. • treaty layer Firstly you try reconciling it with the Charter, you search if there are any rules allowing for humanitarian intervention for instance art 1 “promote and maintain international piece and security”, Belgium’s argument in the Kosovo humanitarian intervention claimed to protect an ethnic minority. Belgium reconciled humanitarian intervention with art 2(4) saying that art 2(4) does not prohibit all kind of force, but only force against the political independence, territorial integrity and the purposes of the UN. Belgium’s view is only a minority view. Even if humanitarian intervention has a good aim it is a threat to the piece and security because it involves force. There is also the dispute between legality and morality, you might have to choose between the 2. The absolute aim of the charter is to maintain piece and security therefore adding any other justification would undermine the purpose of the UN because the exceptions will be possibly overused by states. • customary layer S Possible grounds for legality  1) Restrictive interpretation of Art. 2(4) - Not against the territorial integrity (no territorial diminutions) or the political independence (no regime change) or the UN purposes  But: - Primary purpose of the UN: maintenance of peace and security - Correct interpretation of Art. 2(4) as per the travaux préparatoires  2) The opposing goals of conflict prevention and protection of human rights must be balanced against each other on a case-by-case basis - In extreme cases (e.g., genocide), the protection of human rights should be preferred to non-violence  But: - Not consistent with Art. 1 of the Charter  3) Fundamental change of circumstances (Art. 62 VCLT): the machinery for collective security does not work effectively, so the pre-existing rights to use force revive (Lillich, Reisman, Tesón)  But: - Art. 2(4) is not linked to Chapter VII S opinio juris • India, Tanzania and Vietnam did not include humanitarian intervention as one of the legal justifications of the intervention (self-defense) • Substantial protests raised by most states in all the above mentioned cases ◦ No UN resolution has ever supported the right of a state to intervene on humanitarian grounds without SC - authorization or the consent of the territorial state > The Definition of Aggression and the Friendly Relations Declaration do not contain a humanitarian exception • Humanitarian intervention was rejected as a legal argument by the ICJ, Nicaragua, para. 268 • States in favor of humanitarian intervention: UK, Denmark, Belgium, The Netherlands, Sweden, Jamaica, Poland and on certain occasions France states • 2022 Putin's speech and Ukraine's ICJ application against Russia S UK Government legal position on Syria, 29 August 2013  ‘[T]he aim is to relieve humanitarian suffering by deterring or disrupting the further use of chemical weapons  If action in the Security Council is blocked, the UK would still be permitted under international law to take exceptional measures in order to alleviate the scale of the overwhelming humanitarian catastrophe in Syria by deterring and disrupting the further use of chemical weapons by the Syrian regime’ 81  Three conditions: 1. If there is convincing evidence, generally accepted by the international community as a whole, of extreme humanitarian distress on a large scale, requiring immediate and urgent relief 2. it must be objectively clear that there is no practicable alternative to the use of force if lives are to be saved 3. the proposed use of force must be necessary and proportionate to the aim of relief of humanitarian need and must be strictly limited in time and scope to this aim (i.e. the minimum necessary to achieve that end and for no other purpose)' The UK is the state that uses humanitarian intervention the most. S the responsibility to protect • Conceived by the International Commission on Intervention and State Sovereignty in 2001 ◦ Five criteria of legitimacy: just cause, right intention, last resort, proportionality of means and a reasonable prospect of success • Sovereignty entails responsibility If states are unable or unwilling to exercise their primary responsibility to protect their population, the international community must step in • Situations triggering the responsibility to protect: genocide, war crimes, crimes against humanity, ethnic cleansing Sovereignty is not just power, it is also responsibility to protect the population. If you are unwilling or not able to do that, there is a responsibility to protect the population by the international community S three components (ICOSS) • Responsibility to prevent: addresses 'both the root causes and direct causes of internal conflict and other man-made crises putting populations at risk' • Responsibility to react: involves responding 'to situations of compelling human need with appropriate measures, which may include coercive measures like sanctions and international prosecution, and in extreme cases military intervention' • Responsibility to rebuild: provides, 'particularly after a military intervention, full assistance with recovery, reconstruction and reconciliation, addressing the causes of the harm the intervention was designed to halt or avert' S 2005 world summit outcome document 'we are prepared to take collective action, in a timely and decisive manner, through the Security Council, in accordance with the Charter, including Chapter VIl, on a case-by-case basis and in cooperation with relevant international organizations as appropriate, should peaceful means be inadequate and national authorities manifestly fail to protect their populations from genocide, war crimes, ethnic cleansing and crimes against humanity' (para. 139) There is no legal right or duty to protect foreign population, they are just reaffirming the powers of the SC • Art. 4(h) of the AU Constitutive Act - ‘the right of the Union to intervene in a Member State pursuant to a decision of the Assembly in respect of grave circumstances, namely: war crimes, genocide and crimes against humanity’ • Great Lakes Non-Aggression and Mutual Defence Protocol (Art. 4 (8)) - ‘Member States agree that the provisions of this Article and Article 5 of this Protocol shall not impair the exercise of their responsibility to protect populations from genocide, war crimes, ethnic cleansing, crimes against humanity, and gross violations of human rights committed by, or within, a State. The decision of the Member States to exercise their responsibility to protect populations in this provision shall be taken collectively, with due procedural notice to the Peace and Security Council of the African Union and the Security Council of the United Nations’ 82