International Law-Appunti, Sbobinature di Diritto Internazionale

Scarica International Law-Appunti e più Sbobinature in PDF di Diritto Internazionale solo su Docsity! International Law Lesson 1 20/09/2023 1. Sovereignty prominent keyword in UN Assembly speeches. a. It’s the beginning of it all because it’s the ground on which States operate. It’s the premise which seas sovereign States, the actors, operating in the international arena. All the States technically hold an equal share of legal authority. Sovereignty is based on the principle of equality of sovereign States. The latter is defined in the Charter of the United Nations. i. Westfalia Peace (1648) is the beginning of the rise of the subjects of international law: the States. Before that, the actors were religious figures and emperors. It was a vertical system, where each prevailed depending on the times. ii. With the Westfalen system, the international order is now made of sovereign and equal States, standing on equal footing. iii. This notion of States on an equal footing is just a legal fiction States differ in economic or political power, size, population, and military power. iv. Equality and coexistence theoretically imply that States shouldn’t be able to dominate each other. v. E.g., the UN is premised on the idea of sovereign States. The UN is the most important international organisation. It comprises 193 States, representing almost the entire international community. All States, in the General Assembly, have one vote each, irrespective of size or power. b. Sovereignty rests on the concept of territory . A State is sovereign within its boundaries. That means that the State has supreme jurisdiction within its borders. i. This means that States can’t send agents to other States to prosecute a refugee in that country without the consent of the other State. This would breach the principle of territorial sovereignty of the State. ii. The most outrageous breach of sovereignty is the breach of the use of force rule, the invasion of a sovereign State through military intervention. 1. When there is a breach of State sovereignty from another State, the breaching State uses international law to justify the breach by saying that it was self-defence: intervention is needed to defend people. Thus, they use international law with a different interpretation. By doing so, the State confirms the rule. The breach confirms the rule. 2. Coexistence and Cooperation are two different rules. a. Coexistence : States are on equal footing and respect each other's sovereignty. i. E.g., States refrain from the use of force. ii. They also respect rules concerning Treaty compliance, under the principle of pacta sunt servanda . Treaties entered into need to be respected in good faith. b. Cooperation : States might want to cooperate. To solve global problems, States need to cooperate. Many primary rules are called rules of cooperation. i. E.g., a part of the Law of the Sea Convention, the UNCLOS, deals with administrating the common heritage of humanity. Since it’s a collective heritage of humanity, we need cooperation between the States, not just coexistence. It’s not easy to distinguish them because, in international law instruments, we find a mix between these two rules. 3. Multilateralism a. Multilateralism is going through difficulties since many States have started withdrawing from international organisations. Participating in international fora is deemed not important since domestic law is more pressing. Sovereigntist movements also jeopardise it. And yet, multilateralism and discussing, and having an international forum where to discuss, need to remain. Communication rests on it. Communication is the only way to reach a better solution. 4. Consent a. States are on equal footing. Thus, nothing works in international law unless the State has explicitly consented. States can’t be submitted to international tribunals unless their consent is given. States can’t be part of international organisations without their explicit consent. b. Consent is also relevant when States want to withdraw from international organisations. c. States are “free” to consent and be bound by international rules. 5. States and Non-State Actors a. Something is changing. The subjects of international law are horizontally connected: equal States, on equal footing. In theory, nobody Dollar symbol 2. Reputation is also a reason to respect international law. States value their international reputation. If international law rules are respected, then the State will be seen as a trustworthy partner, reputable, and responsible global actor. 3. An element of the way international law is created. The more a State has participated in the formation of an international law rule, the more likely it is to adhere to it. There is interest because the rules were shaped by that State intervening. Sovereign States Consensus (not consent) The decisions are adopted (at a multilateral level) with the absence of objections. Usually used for sensitive issues. It allows States “to not put” their face on the issues. Decisions are applicable in the domestic legal system through national implementing acts. Reciprocity You follow international law for self- interest. If you follow the rules, there is also the expectation that others will as well. It’s reciprocity for the sake of a stable environment. It maintains that level of being covered, without having to explicitly express their views. Decisions need to be transposed into each domestic legal system. This is the connection between domestic and international law. Here, it’s up to each constitutional provisions of each system to decide whether to be more trusting of international law. Monism - More open and trusting if international law rules. - No need for the filter of domestic law transposing a convention. Dualism - There is a filter. The Convention, to become domestic law, requires a law that may rewrite the provisions contained in the convention. - You transform international law rules into domestic law rules. The aim of international law isn’t punishment, but willing compliance with the rules. Excursus There is an enforcement mechanism e.g., sanctions or countermeasures. From the legal side, there are unilateral or collective enforcement mechanisms to sanction States. The decision to intervene with countermeasures is inherently political. Does the decision to intervene depend on a limit to international law? Probably not. Intentional law is a tool. When there is the political will to react to a breach, international law gives the tools to do so, not through punishment, but through countermeasures and sanctions. There is a tool of enforcement based always on a political dimension or decision whether to participate in a reaction towards the breach. International law is a modality to communicate and potentially react to breaches. It’s not, like in domestic systems, as an enforcement mechanism. It’s the possibility to solve disputes and communicate. International law doesn’t oblige States to solve their disputes. There are no rules of this type. It's also a method of reaction to breaches, which has limits. It works on reciprocity and self-help. There is no third-party enforcer of the rules. So, there are countermeasures. In case of a breach of a treaty, States can either use self-help or dispute settlement (in court or tribunal, but with consent)—the State self-assesses. The State decides to react, without needing a third-party intervention. The aim, again, is not to punish but to restore the balance. Lesson 3 22/09/2023 Chapters 2 and 3. She’ll start with Chapter 3. Treaty Law Where is the provision indicating what the sources of international law are? Art. 38 ICJ Statute is the point of reference for the sources of international law. The instruments are in the hands of the judges to solve the disputes. This list tells us what the sources of international law are: 1. The Court, whose function is to decide in accordance with international law such disputes as are submitted to it, shall apply: - International conventions, whether general or particular, establishing rules expressly recognized by the contesting states; deals with treaty law. - International custom, as evidence of a general practice accepted as law; - The general principles of law recognized by civilized nations;  this formulation is outdated. It’s not acceptable anymore. The ILC (the International Law Commission) has eliminated this expression. Now, it’s just called general principles of law. - Subject to the provisions of Article 59, judicial decisions and the teachings of the most highly qualified publicists of the various nations, as subsidiary means for the determination of rules of law.  these are the subsidiary means that the judges use to determine the law to solve the dispute. 2. This provision shall not prejudice the power of the Court to decide a case ex aequo et bono, if the parties agree thereto.  the application of equity principles which the Court might decide to apply, provided that the parties do consent to it. These are the sources to be applied in a case and we recognise them as international law sources. We can also mention soft law as a source, although it’s not codified. An important role is played in the clarification of these sources. In this context, the ILC plays a big role. It is currently codifying and writing the existing norms at the international law level in different subjects. The ILC is a committee of experts. It was established by the UN Charter, with Art. 13, to codify international law and promote its progressive development. These activities are key to understanding how the sources of international law work and how they are written down and codified. The job of these experts is not just looking at what customary international law and treaty law are, but also promoting the progressive development of international law. Is there a hierarchy between the sources of law? No, there isn’t. This hierarchy isn’t mentioned in art. 38. Just because treaties are mentioned first doesn't mean they are superior. However, we must recognize that, although there isn’t legally and technically any prominence of source over the other, because of the emerging values of the international community leading to new core principles, especially after WWII, led to the creation of a bulk of international law rules called ius cogens (also known as peremptory norms of general international law). This is because of the contents of these rules: they seem more important than others. This doesn’t mean that they are different from the others. Ius cogens rules are nothing but customary international law that, because of their specific content, states decided that it was more important because of the breaches of it, compared to the other customs. What are the differences between ius cogens and the other types of customs? It comes from the legal consequences deriving from their breach. We see the differences by looking at what happens when ius cogens is breached. then can become fully-fledged treaties. This treaty, like the VCLT, is also called a codification convention. Why?  As we know, the job of the ILC is to codify and progressively develop international law.  The outcome of these works, when and if they become conventions, is called codification conventions.  They are prepared to codify and put into writing customary international law.  E.g., the VCLT reflects customary international law. It is one of the most refined conventions in the world. It’s a global treaty. The ways treaties are made must follow what is written in the VCLT.  Another type of codification convention is the Law of the Sea Convention. It has codified the early practices of the delimitation of maritime borders between states and has put into writing the practice, reflected in the opinio iuris, of maritime delimitation. After the stratification of different conventions, it became the codification convention of the Law of the Sea Convention. o With this example, we see that codification conventions don’t just arise out of the works of the ILC. It’s not only linked to the job of the ILC. o Codification conventions might be based on the activity of the ILC, but not necessarily. E.g., UNCLOS is the product of a stratification of different treaties, which became, in 1982, thanks to the will of the States, a codification convention. There is no hierarchy unless we talk about the material content of the ius cogens. There are different moments in history which also reflect different techniques of adoption of the sources of international law. The moment in history where we find a higher tendency for customary international law to be adopted, especially in the past, it’s when there is homogeneity or the values in the international community are homogenous. Therefore, there is a situation where we don’t need to necessarily put everything into writing because we already know how things are: it’s a practice. The practice and opinion iuris and the values amongst the members of the international community were so homogenous that they didn’t need to put them into written form. The more homogenous the values within a society, the more we find customary international law to be the leading source of international law. The less homogenous the values and the more players we have within the realm of creating and participating in the formation of international law, the more difficulty in having customary international law. There are key moments in history in which things changed. From the beginning of the 20th century onwards, things became less homogenous. Therefore, written treaty law became prominent. States were willing to adopt treaty law instead of customary international law. E.g., the process of independence of the colonies led to a moment, in the 60s, in which States became, numerically, independent States in the international arena. When we have more players, there are more views and States are less inclined to follow the rules adopted by their colonisers. They are less likely to accept it since they didn’t participate in its creation because they weren’t independent. With independence, they wanted to participate in the formation of rules, and they believed more in treaties than in customary international law since it represented the colonial period. The role of rules of international law has this background since they reflect the various historical evolutions of the positions of the States in the international community. Looking at the years in which these pivotal treaties were adopted, there is a trend of being inclined to participate in international negotiations leading to more written law as opposed to custom, non-written law. - 1949 UN Geneva Conventions on International Humanitarian Law. - 1961 Vienna Convention on Diplomatic Relations. o It’s a multilateral convention but it’s based on bilateral, synallagmatic, obligations. You both respect the obligations before another State, in pairs. If you breach it, you are breaching it before another State. E.g., if a diplomat isn’t expelled correctly, the convention is breached before the State. - 1978 Vienna Convention on the Succession of States on Treaties. - 1982 UN Law of the Sea Convention. - 1986 Vienna Convention on the Laws of Treaties between States and I.O. or between I.O. - + Human rights treaties and MEAs (multilateral environmental agreements) (protection of collective interests and solidarity). All States have an interest in seeing these rights technically respected. Reality is different since human rights are always violated. The system of obligations mentioned under the VCDR changed in terms of treaties encompassing different types of obligations not being synallagmatic anymore. Why? Because there are human rights treaties on the international scene, multilateral environmental agreements, and Conventions like the one on the prohibition of genocide. Provisions contained in multilateral treaties aren’t reciprocal nor synallagmatic because those obligations are of interest to every treaty member. If you breach it, you’re not just breaching it before State B but in front of all other states. The multilateral treaties aren’t creating obligations like bundles, which impairs States A and B, but there are multilateral treaties creating erga onmes partes obligations. We are looking, in this case, at a provision created by an ius cogens norm within a treaty. If they aren’t included in a treaty, they are just called erga omnes obligations, if they are based on customary international law. Art. 2 of the VCLT refers to a written form, governed by international law, whether embodied in a single instrument or in two or more related instruments (e.g., an exchange of notes between 2 States. They are separate but together they form a treaty if that is the will of the parties) and whatever its particular designation. Bangladesh vs. Myanmar before ITLOS - This case allowed the Court to clarify the meaning of “whatever its particular designation”. o The case had to do with the maritime delimitation (which is relevant for the rich resources found in those areas) between Bangladesh and Myanmar and the extension of the territorial sea. They had to delimit the maritime boundary and extend the territorial sea, the exclusive economic zone, and the continental shelf. o The problem was whether the Agreed Minutes of the meetings between the two delegations were to be considered a treaty. o Before starting the case, these two representatives of the States had many meetings and rounds of talks. Every time two delegations talk, they produce the minutes, the written recordings of what has been said in these meetings. o At some point, the delegations signed the Agreed Minutes regarding the delimitation of the maritime boundaries of the States. o Could these Agreed Minutes considered a treaty, so legally binding? Within the meaning of art. 15 UNCLOS, was it a legally binding agreement? Art. 15 To delimit a territorial sea between states with opposite or adjacent coasts, you needed an agreement. This was a matter of interpretation in the hands of the judges. The judges have to make the decision and decide if there was clear consent to create something binding for the states, from both sides. The master of the rules is always consent. Did they consent to delimit this way the territorial sea, as written down in the Agreed Minutes? The judges, to come up with an interpretation, used: depends on the constitutional provisions concerning the way they treat treaties. The moment of ratification is the moment consent to be bound is shown. There are 2 options: o Simplified: the signature of the treaty by the representative entails consent. The parties to the treaty agreed that signature = consent. Art. 12 VCLT:  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; (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. o Formal : it’s found in Art. 14 VCLT. Consent is expressed by ratification. It requires a passage through Parliament. There is a need for parliamentary authorisation.  It’s linked to the political importance or relevance and it has to do with key matters that require a passage through Parliament you want the public scrutiny of the obligations that the State takes on board.  How the State presents the piece of domestic law, demonstrating that they have incorporated the treaty within the legal system. This is the instrument of ratification presented at the international law level.  To whom is the instrument of ratification presented? It depends on what the treaty says. Within them, there is a provision that mentions the depository of the ratification. It is usually the Secretary General of the UN, for example.  Multilateral treaties need a certain number of ratifications to enter into force. There is a threshold to respect. - Good faith applies so that we don’t have to behave in a way, pending the instrument of ratification being deposited, in a way that could jeopardise the operation and the entry into force of the treaty. Good faith is found in different sectors and informs various areas. For the sake of treaty law, we find Art. 18 VCLT: 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  a State is master of the treaty. It can freely change its mind since there is no third party obliging states to follow through. If a state has signed a treaty, it might not want to ratify it anymore. This can happen. If it does so, it has to vocalise it. It has to tell others. (b) it has expressed its consent to be bound by the treaty, pending the entry into force of the treaty and provided that such entry into force is not unduly delayed. We have to look at the processes as being parallel tracks. There is the domestic track that follows the constitutional provisions which is linked to the international track, which has a bearing on the life of the treaty. The domestic track is when states express their consent through their peace of legislation. This is made at the domestic level. the domestic track becomes effective when the international track obtains the necessary number of ratifications to enter into force. - What happens domestically isn’t relevant in the international scene. Even mistakes made domestically, in principle, aren’t relevant. States want to rely on the stability of relationships. They aren’t asked to study the other’s constitutional practices. Domestic law isn’t relevant to international law. When do treaties enter into force? - It depends on the type of treaty. - The multilateral treaty will tell us because there is a provision written. - Normally, there is a threshold in the case of multilateral treaties. What if states want to become parties to a treaty when it has already entered into force? - This is normal in multilateral treaties. States might want to become parties and deposit their instrument of acceptance of approval, even when the treaty has already entered into force and has already reached the numbers needed. - The provisions of the treaties need to allow this to happen. o Open treaties mean that other states can join in and deposit their instrument of acceptance, even at a later moment. o Close treaties don’t allow this. - Multilateral treaties must have these provisions telling us when they enter into force. - For bilateral treaties, it’s the moment when the 2 state representatives exchange their instruments of ratification and the treaty enters into force. o There is no need for a threshold. The more the number of instruments is deposited, the more you want to show consent. There is a political background. The more delicate the treaty is, the more ratifications are needed there needs to be a solid base of states showing consent. The less tricky it is, the lower the threshold. Sometimes, like the Paris Agreement, it’s also linked to certain states showing emission reductions. The structure of a treaty: - The aims, found at the beginning of the treaty, cannot be defeated by the behaviour of one of the parties. - There is a list of definitions. - There are the core provisions and obligations. Here, we have to look at the formulation to understand the treaty. - There are provisions for the settlement of disputes . o It’s a key provision in treaties. o They might search for diplomatic means seeking solutions through negotiations/mediation. They have to act in good faith. o If a dispute arises on the interpretation and application, they choose a judiciary. o They refer to the steps to undertake if the negotiation fails:  The parties choose a forum/ refer the case to international arbitration. - There is the depository bit. - The entry into force. - Withdrawal. - The authentic texts are the authentic languages of the treaty. - The annexes They are binding like all parts of the treaty. Expression of consent: o Ratification as a means of expressing consent to be bound (Article 14 VCLT). o Agreements in simplified form: entry into force occurs through signature (Article 12 VCLT). o Obligation of registration at the UN Secretariat (Article 102 UN Charter and Article 80 VCLT).  Art. 102 UN Charter says: Every treaty and every international agreement entered into by any Member of the United Nations after the present Charter comes into force shall as soon as possible be registered with the Secretariat and published by it.  The Italian Government decides to adopt in simplified form a bilateral agreement that agrees to establish a certain number of military bases on Italian soil in favor of another State.  This treaty has been ratified by the Italian President of the Republic but without the law that authorizes the ratification.  Is it valid?  Italy, for political reasons changed ideas and does not want these bases anymore. Can it invoke art 46 VCLT and art. 80 Constitution?  Instead, if it wants to keep the agreement, it needs to adopt a domestic law to fix the unconstitutionality. Lesson 6 29/09/23 Art. 46 as an exception to the general rule of non-relevance of domestic law in the international scene. Cameroon v. Nigeria  related to the application of Art. 46. - Nigeria claimed that the HoS had signed an agreement with Cameroon on territorial delimitations, but it was the military council who should’ve given consent and Cameroon should’ve known of this procedure. Thus, for Nigeria, a rule of domestic law that was fundamental was breached. - The ICJ rejected Nigeria’s claims. This highlights the meaning and interpretation of what is “manifest”. The violation wasn’t manifest since otherwise, every state should be aware of every specific, domestic, constitutional provision of every other country. This would put a high burden and threshold on states. Also, there is good faith there is the HoS, a plenipotentiary, on whom I rely. If he had expressed consent, he should’ve known that there was a requirement to go through the military council. o The ICJ There is no general, legal, obligation for states to keep themselves informed of the constitutional developments in other states. Articles on Invalidity (Art. 46) Invalidation of consent Invalidation of the treaty itself Paragraph 1 Art. 46 deals with good faith: 2. A violation is manifest if it would be objectively evident to any State conducting itself in the matter in accordance with normal practice and in good faith. Error and Fraud - Error o Art. 48 VCLT. A State may invoke an error in a treaty as invalidating its consent to be bound by the treaty if the error relates to a fact or situation which was assumed by that State to exist at the time when the treaty was concluded and formed an essential basis of its consent to be bound by the treaty. o Not having read the documents properly isn’t an error to invoke to invalidate a treaty. o Exception (?): you rely on something that in fact has an error.  E.g., negotiating a bilateral treaty on territorial delimitation. The plenipotentiaries are discussing based on an old geographical map, that shows old boundaries, that aren’t valid anymore. This is something that can be used to invoke error since it forms an essential basis. - Fraud o Art. 49 VCLT. If a State has been induced to conclude a treaty by the fraudulent conduct of another negotiating State, the State may invoke the fraud as invalidating its consent to be bound by the treaty. o E.g., a representative signs an agreement because of the fraudulent behaviour of another state representative. Coercion - Coercion of a representative of a State o Art. 51 VCLT. The expression of a State’s consent to be bound by a treaty which has been procured by the coercion of its representative through acts or threats directed against him shall be without any legal effect. - Coercion of the State o Art. 52 VCLT. A treaty is void if its conclusion has been procured by the threat or use of force in violation of the principles of international law embodied in the Charter of the United Nations. o The threat of force is military. There have been harsh discussions to include economic or political threats in the meaning of this article. Instead, a separate declaration was attached to the VCLT solemn condemnation of the use of force of any kind to coerce states to agree. However, there are no legal repercussions since it’s soft law and thus not binding. Definition of ius cogens o Art. 53 VCLT. A treaty is void if, at the time of its conclusion, it conflicts with a peremptory norm of general international law. For the purposes of the present Convention, a peremptory norm of general international law is a norm accepted and recognised by the international community of States as a whole as a norm from which no derogation is permitted and which can be modified only by a subsequent norm of general international law having the same character. o This definition is basic and doesn’t include a list of examples.  They couldn’t make a list since they didn’t want to fix reality.  It’s linked to state responsibility.  It runs parallel to treaty-making (the law of the treaties). o Who oversees highlighting the ius cogens? Usually, the ICJ. Termination and Duration of Treaties - Every treaty has termination provisions. - There are internal and external grounds that can lead to termination: o Internal grounds  E.g., the treaty has an explicit duration.  Unilateral withdrawal with a period of notice, e.g., Canada with Kyoto Protocol or USA with Paris Agreement; sunset clauses.  Sunset clauses: even if a treaty is terminated, this clause allows for the protection of investors for a longer period. o External grounds  E.g., material breach of the treaty: supervening impossibility of performance; fundamental change of circumstances.  Gabcikovo-Nagymaros Project case. Lesson 7 04/10/2023 Erga omens partes Integral treaties - The states still think it’s good to stay in it. - A breach doesn’t jeopardise the further continuation of the treaty. - It doesn’t change the further performance or continuation of the treaty. - All states will “jump ship”. - All states will want to get out of the treaty. - If one state breaches the treaty, the deal is off. - Treaties can be based on a set of synallagmatic obligations. - Treaties can establish erga omnes partes obligations (e.g., agreements to protect fisheries). The Gabcikovo-Nagymaros case - It involves Art. 60, 61, and 62 VCLT. All these articles need to be interpreted restrictively.  Art. 61: 1. A party may invoke the impossibility of performing a treaty as a ground for terminating or withdrawing from it if the impossibility results from the permanent Supervening impossibility of performance. - It’s when the object, indispensable for the execution of the treaty, disappears or is destroyed. Thus, termination is invoked because the object, that was essential for the treaty, has disappeared. disappearance or destruction of an object indispensable for the execution of the treaty. If the impossibility is temporary, it may be invoked only as a ground for suspending the operation of the treaty. 2. Impossibility of performance may not be invoked by a party as a ground for terminating, withdrawing from or suspending the operation of a treaty if the impossibility is the result of a breach by that party either of an obligation under the treaty or of any other international obligation owed to any other party to the treaty.  Art. 62: 1. A fundamental change of circumstances which has occurred with regard to those existing at the time of the conclusion of a treaty, and which was not foreseen by the parties, may not be invoked as a ground for terminating or withdrawing from the treaty unless: (a) the existence of those circumstances constituted an essential basis of the consent of the parties to be bound by the treaty; and […] - - There was the idea, started by Czechoslovakia, to establish in 1977 a bilateral treaty with Hungary to set up a system of “locks” and damns. o To organise the Danube River. o To use it for hydro energy powers. The fundamental change of circumstances. There were unforeseeable changes in the circumstances that brought about the treaty. It’s formulated in the negative: we find the word unless. You can’t invoke it, unless… o To improve the navigability of the river. o To produce electricity. o It was a hydroelectricity project and a joint investment. - Each party had different obligations. - The construction of the joint investment had started but, at some point, Hungary decided to suspend the treaty unilaterally and tried to terminate it. It started involving reasons to do so: o In October 1989, it started to invoke economic but especially ecological reasons.  They considered the system of damns as not being ecologically sound anymore. They invoked an ecological necessity. - Hungary transmitted a Note Verbale to terminate the treaty (19 May 1992 with effects taking place from 25 May 1992) invoking the supervening impossibility of performance, fundamental change of circumstances, and material breach of the treaty. o The core issue was that, at that time, Czechoslovakia, as a reaction, said that it would’ve diverted completely the route of the project, with a variation of a project: Variant C (November 1991). This wasn’t contained in the original treaty. o Czechoslovakia effectively diverted the waters of the Danube only in October 1992. - The case was brought to the ICJ. It had to look at the VCLT to see if there were grounds for Hungary’s claims. Material breach: Not found because of the timing of the Note Verbale. The variation of the route of the Danube wasn’t in place. Thus, there was no effective material breach. The breach needs to happen, it can’t remain a theory. The notification of termination was premature because at that time Czechoslovakia had not diverted the waters yet. Ecological necessity: Not found. Hungary did not establish that the environmental uncertainties amounted to “perils” to the environment or that they were imminent. Supervening impossibility of performance: Not found. The “Object indispensable for the execution of the treaty” (the legal regime set up by the 1977 treaty) wasn’t “permanently disappeared” or “destroyed”. The fundamental change of circumstances: Not found. The new developments in the state of environmental knowledge were not completely unpredictable or unforeseen and the dissolution of Czechoslovakia did not alter the obligations under the ‘77 treaty. o They wanted Art. 6 (2) to correspond not only to treaty law but also to reflect customary international law.  If they argued and demonstrated it did, then also Germany has to be bound to it even if it never ratified Art. 6 of the Convention. Germany had just signed this Convention but never ratified it. Thus, Germany wasn’t part of it. - This case led the ICJ to analyse and present the relationship between codification conventions and the progressive development of customary international law. - Within the context of the case, it elaborated 3 concepts: o Codification. o Crystallisation. o Norm creation character . - The ICJ had to establish whether paragraph 2 of Art. 6 of the Convention also reflected customary international law. Can it also bind Germany, which wasn’t part of it? - They had to analyse the practice of states, including Germany concerning Art.6. - The starting point was that Germany wasn’t part of the Convention and had just ratified it. - This wasn’t the only analysis they had to go through. They elaborated a relationship of 3 ways to look at the relationship between customary international law and codification conventions:  Customary international law is made of elements of practice, combined with opinio iuris. o Codification effect : when the treaty just codifies and puts into writing what already exists as a custom. It doesn’t add anything because the custom is already mature. o Crystallisation : it’s when the codification convention helps the process of formation and conclusion of the formation of the custom. The treaty has more impact compared to the first case. It finalises a process that was already in place, but the treaty gave it the final push.  Art. 6 of the Convention could also become binding as customary international law because it’s thanks to Art. 6 that the corresponding customary international law was seen as applied by everyone. o Norm creation : we are in a much earlier stage of the formation of the custom. The treaty greatly impacted the formation of the custom. Thanks to the strength of the treaty, the practice started to evolve more, mirroring the evolution of the treaty. First comes the treaty, then the custom. - The ICJ had to resolve the case by looking at the behaviour of the other states and Germany. - They came up with the answer that Art. 6 of the Convention didn’t have any of these 3 effects: Art. 6 didn’t correspond at all to customary international law, and there was no corresponding customary international law on the equidistance principle. It existed only in the realm of treaty law, not customary international law. Since it existed only in the realm of treaty law, states not part of it weren’t bound. - Thus, the case was resolved with the equitable (equity) principle, otherwise Germany would’ve been at a disadvantage. - Looking at the analysis of the ICJ within the case, we see how norms are created. o The ICJ had to investigate Germany’s behaviour, both past and present. o Thus, it came up with the concept (which already existed) of estoppel: it applies to situations when you are investigating the practice of states.  E.g., Had Germany, in the past, always maintained that they believed in the principle of equidistance? If they had declared they had always followed the principle, they wouldn’t have been able to deny it nor could they have taken advantage of their contradictions.  Consistency of behaviour is key .  Estoppel prohibits states from taking advantage of their contradictions.  Only the existence of a situation of estoppel could lend substance to the contention of Denmark and the Netherlands-i.e., if the Federal Republic were now precluded from denying the applicability of the conventional regime, by reason of past conduct, declarations, etc.., which not only clearly and consistently evinced acceptance of that regime, but also had caused Denmark or the Netherlands, in reliance on such conduct, detrimentally to change position or suffer some prejudice. Of this, there was no evidence. Accordingly, Article 6 of the Geneva Convention was not, as such, applicable to the delimitations involved in the present proceedings. - Another element to be seen is that Art. 6 allowed for reservations. o Some treaties may or may not allow reservations: Interpretation of treaties Art. 31 VCLT: 1. A treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose. 2. The context for the purpose of the interpretation of a treaty shall comprise, in addition to the text, including its preamble and annexes: (a) any agreement relating to the treaty which was made between all the parties in connection with the conclusion of the treaty; (b) any instrument which was made by one or more parties in connection with the conclusion of the treaty and accepted by the other parties as an instrument related to the treaty. 3. There shall be taken into account, together with the context: (a) any subsequent agreement between the parties regarding the interpretation of the treaty or the application of its provisions; (b) any subsequent practice in the application of the treaty which establishes the agreement of the parties regarding its interpretation; (c) any relevant rules of international law applicable in the relations between the parties. 4. A special meaning shall be given to a term if it is established that the parties so intended. - Treaties must be interpreted (Para. 1): o In good faith. It means that it’s not generally accepted that those rules can solve the issues. The subject matter is stable. Sometimes, to check the behaviour of states, there could be individuals sending communication against a state that hasn’t complied with a provision; they review reports from states about the status of implementation of the provisions etc. Because of the proliferation of these Committees, there has been a struggle between the interpretation of the states and the expert bodies. Reservations (Art. 19-23 VCLT) - It’s such a difficult topic that the ILC had to write on it. The idea behind them is to have as many states as possible on board. The effect is fragmentation: there is a need to accommodate the peculiar needs of the states, which may have some problems with some provisions. - Definition It’s found in Art. 2 (d) VCLT: “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. This is quite intrusive. The aim is to obtain an exclusion/modification of the legal effects of a provision towards the reserving state. This isn’t like interpretation: there is a difference between fully-fledged reservations and interpretative declarations. This could be an issue if the state asks for a reservation on a core issue dealt with by a provision. There is a need to accommodate flexibility (you want more states on board) and universality (yet you want rigidity, so the treaty is functional). This is why reservations cause fragmentation There is a fragmented set of legal relationships that are different depending on what states you’re looking at in their relationship with others. - When was the idea established? - It’s not simply a clarification or interpretation. - You are asking not to be legally bound to a provision. - It’s telling the others how you understand a provision. - It’s not a request to exclude the legal effects of a provision. - Unanimity used to be the rule for reservations to be accepted. - In 1951, the ICJ, there was a debate on the possibility of having reservations on the Genocide Convention, delivered a famous advisory opinion, where the problem of reservations was clarified: whether unanimity was required, or a more flexible approach could be used. o The problem was that the Convention was silent on reservations. o Many states wanted to enter the Convention, but they wanted to put a reservation on Art. IX of the Convention.  Art. IX has to do with allowing the states to present a case before the ICJ: the jurisdictional clause. - They didn’t want to be brought before the ICJ, so they proposed a reservation on Art. IX. - There was no guideline on whether reservations were possible, especially in a situation where not everyone was on board. - The ICJ had to decide on this difficult topic: whether states could present reservations the moment they accede to the Convention, even if the Convention is silent on the topic, and if other states could object to those reservations. - It had to choose between universality and flexibility. They had to find a criterion to overcome the unanimity principle. o The ICJ had to underline the importance of the integrity of the Convention. o Yet, it also had to choose a flexible approach to the treaty: states could come in with some reservations to accommodate the needs of the different states to encourage the participation of a wide range of states. - The advisory opinion : “[A] State which has made [...] a reservation which has been objected to by one or more of the parties to the Convention but not by others, can be regarded as a party to the Convention if the reservation is compatible with object and purpose of the Convention”. o At least one state has to accept reservations. o Again, the issue is what the meaning of “object and purpose” is. - This new criterion introduced by the ICJ, through practice, the opinio, and the acceptance over time, has been so accepted that the ILC codified it in the VCLT. - Art. 19 VCLT: 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  the permissibility requirement. (c) in cases not failing under subparagraphs (a) and (b), the reservation is incompatible with the object and purpose of the treaty. Who decides if a reservation is incompatible? There is no third body establishing the compatibility of reservations with treaties unless states decide to subject themselves to a tribunal. However, state consent is needed. Without it, there isn’t anybody enforcing anything. - Procedural provisions When presenting a reservation, Art. 23 VCLT needs to be followed: 1. A reservation, an express acceptance of a reservation and an objection to a reservation must be formulated in writing and communicated to the contracting States and other States entitled to become parties to the treaty. 2. If formulated when signing the treaty subject to ratification, acceptance or approval, a reservation must be formally confirmed by the reserving State when expressing its consent to be bound by the treaty. In such a case the reservation shall be considered as having been made on the date of its confirmation. 3. An express acceptance of, or an objection to, a reservation made previously to confirmation of the reservation does not itself require confirmation. 4. The withdrawal of a reservation or of an objection to a reservation must be formulated in writing. o Reservations need to be formulated in writing and communicated to the other parties. o Showing intention is crucial . Not opposing a reservation, after 12 months, leads to the acceptance of the reservation. - Arts. 20 and 21 VCLT (the opposability regime) The starting point: these articles regard the discretion of the parties to accept or refuse a reservation made by others. 2. The reservation does not modify the provisions of the treaty for the other parties to the treaty inter se. 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. o This is the most controversial one. o The convoluted formulation indicates that it’s based on a compromise. Lesson 10 11/10/23 - Continuing reservations. The criteria for admissibility went through a pivotal moment in which someone said something about the admissibility criterion which was codified in the VCLT. The ICJ solved the criterion. There is a moment of admissibility and a moment of acceptance or objection to reservations. The issue comes when other states take a different attitude towards a reservation of a multilateral treaty. One might ask if state consent is necessary to be bound by a treaty, how is the acceptance of a reservation that was objected to possible? In a way, there is consent because the state is part of a treaty towards which you are bound. It seems that consent is fragmented, and the state is obliged to accept the reservation. This situation operates in special treaties, economic treaties etc. The consent is the acceptance of the outcome. Art. 20(4)(b) - This is the more extreme option. - The treaty doesn’t enter into force between the reserving State and the State objecting not only to the reservation but also to the entry into force of the treaty in their bilateral relation. The entire treaty has no effect between the two states. o The reserving state is not a party to the treaty with the state objecting. Art. 21(3) - The provisions do not apply ‘to the extent of the reservation’ between the reserving State and the State that objects to it (but not opposing the entry into force of the treaty in their bilateral relation). The reserving state gets what it wants. The provisions are applied to the extent of the reservation between the reserving State and the State that does not object to (accepts) the reservation. In other treaties, this situation is more extreme: how is it possible that a state is “forced” to enter a treaty in a way that it didn’t want in the first place (since it needs to accept a reservation it didn’t want)? There is the case of human rights treaties. The VCLT talks about permissible reservations. Art. 19 is the article on the permissibility requirement: it tells us in which scenarios reservations are permissible. There isn’t a third party telling us that the “object and purpose” criterion is respected: it’s a state self-assessment. Each will decide if the reservation complies with the object and purpose of the treaty. Art. 19 serves as a guide for the state/tribunals to decide whether the reservation is allowed. For some treaties, Art. 19 tells us that reservations aren’t allowed. In other, only some types of reservations are potentially allowed. The criterion is compliance with the object and purpose of the treaty. When there is a situation of incompatibility, only after the assessment of Art. 19, Arts. 20 and 21 can follow. The VCLT has a gap in its analysis of reservations since it only deals with permissible reservations the legal effects of Arts. 21 and 21 are triggered when Art. 19 has been used. What happens when a reservation is impermissible? Art. 19 VCLT doesn’t deal with these situations. There is a gap. Now, we enter the realm of human rights treaties. Example: - A multilateral human rights treaty provides for the protection of the right to life, including the prohibition of applying the death punishment. - State A (when it ratifies the treaty) puts a reservation declaring that its consent to be bound is without prejudice to its domestic criminal legislation concerning the most heinous crimes which provides for the possibility of imposing the death punishment. o This is an impermissible reservation since it goes against the rationale of the treaty. The VCLT doesn’t deal with these scenarios since there isn’t an article on it. One might think that these scenarios don’t happen. Not true. They happen in the practice of HR treaties. A “Max Planck article” on it. At some point, it mentions HR treaties as a special case. it also refers to the Expert Committees being established by Conventions set up by experts: they check up on compliance with the provisions. The reading mentions the International Covenant on Civil and Political Rights Committee. This HR Committee hears individual communications: technically, an individual can sue a state for the violation of the Covenant, thus overcoming the classic paradigm of inter-state cases. There was a case in Trinidad and Tobago. In the context of the ICCPR and the HR Committee, it presented a reservation by saying that the HR Committee wasn’t competent to hear and consider communications from groups of communicants. There were prisoners under the death penalty. Even if it was possible for all types of citizens under the jurisdiction of the state to bring claims against it for violation of the ICCPR, Trinidad and Tobago put a reservation: communicants can’t be prisoners. For it, they weren’t entitled to the possibility to sue the state. Prisoners under a death sentence weren’t allowed to present a communication against Trinidad and Tobago before the HR Committee, as a reservation for the normal possibility of non-prisoners being able to sue. This created a mess. It became clear that in some exceptional cases (i.e., HR treaties), a practice emerged within the Expert Committees: the Expert to HR treaties decided that it was such an incompatible reservation that they had to consider that it had never been presented in the first case. - The reservation is “severed” and the treaty is fully applicable between State A and the other States presumably objecting to it: State A doesn’t win. o In the practice related to human rights treaties (e.g., European Court of Human Rights), objection to a “substantive” reservation leads to the application of the treaty as if the reservation to the provision never existed: very difficult to accept for reserving (sovereign) States, though. Apart from human rights treaties, the “severance” of reservations does not normally occur. This created many problems to the point that Trinidad and Tobago threatened to get out of the treaty. The issue was solved at the diplomatic level with the promise of the HR Committee to make sure they wouldn’t, in the future, adopt an extreme attitude: they promised to adopt an attitude of compromise approach concerning the states. Customary International Law There is a different document by the ILC: ILC Draft Conclusions on the identification of customary International Law 2018. This is an exception to the functioning of the VCLT: it’s not even covered by it. There aren’t any references to it in the VCLT. Apart from HR treaties, severance doesn’t happen. International Law Lesson 1 20/09/2023 1. Sovereignty prominent keyword in UN Assembly speeches. a. It’s the beginning of it all because it’s the ground on which States operate. It’s the premise which seas sovereign States, the actors, operating in the international arena. All the States technically hold an equal share of legal authority. Sovereignty is based on the principle of equality of sovereign States. The latter is defined in the Charter of the United Nations. i. Westfalia Peace (1648) is the beginning of the rise of the subjects of international law: the States. Before that, the actors were religious figures and emperors. It was a vertical system, where each prevailed depending on the times. ii. With the Westfalen system, the international order is now made of sovereign and equal States, standing on equal footing. iii. This notion of States on an equal footing is just a legal fiction States differ in economic or political power, size, population, and military power. iv. Equality and coexistence theoretically imply that States shouldn’t be able to dominate each other. v. E.g., the UN is premised on the idea of sovereign States. The UN is the most important international organisation. It comprises 193 States, representing almost the entire international community. All States, in the General Assembly, have one vote each, irrespective of size or power. b. Sovereignty rests on the concept of territory . A State is sovereign within its boundaries. That means that the State has supreme jurisdiction within its borders. i. This means that States can’t send agents to other States to prosecute a refugee in that country without the consent of the other State. This would breach the principle of territorial sovereignty of the State. ii. The most outrageous breach of sovereignty is the breach of the use of force rule, the invasion of a sovereign State through military intervention. 1. When there is a breach of State sovereignty from another State, the breaching State uses international law to justify the breach by saying that it was self-defence: intervention is needed to defend people. Thus, they use international law with a different interpretation. By doing so, the State confirms the rule. The breach confirms the rule. 2. Coexistence and Cooperation are two different rules. a. Coexistence : States are on equal footing and respect each other's sovereignty. i. E.g., States refrain from the use of force. ii. They also respect rules concerning Treaty compliance, under the principle of pacta sunt servanda . Treaties entered into need to be respected in good faith. b. Cooperation : States might want to cooperate. To solve global problems, States need to cooperate. Many primary rules are called rules of cooperation. i. E.g., a part of the Law of the Sea Convention, the UNCLOS, deals with administrating the common heritage of humanity. Since it’s a collective heritage of humanity, we need cooperation between the States, not just coexistence. It’s not easy to distinguish them because, in international law instruments, we find a mix between these two rules. 3. Multilateralism a. Multilateralism is going through difficulties since many States have started withdrawing from international organisations. Participating in international fora is deemed not important since domestic law is more pressing. Sovereigntist movements also jeopardise it. And yet, multilateralism and discussing, and having an international forum where to discuss, need to remain. Communication rests on it. Communication is the only way to reach a better solution. 4. Consent a. States are on equal footing. Thus, nothing works in international law unless the State has explicitly consented. States can’t be submitted to international tribunals unless their consent is given. States can’t be part of international organisations without their explicit consent. b. Consent is also relevant when States want to withdraw from international organisations. c. States are “free” to consent and be bound by international rules. 5. States and Non-State Actors a. Something is changing. The subjects of international law are horizontally connected: equal States, on equal footing. In theory, nobody Dollar symbol 2. Reputation is also a reason to respect international law. States value their international reputation. If international law rules are respected, then the State will be seen as a trustworthy partner, reputable, and responsible global actor. 3. An element of the way international law is created. The more a State has participated in the formation of an international law rule, the more likely it is to adhere to it. There is interest because the rules were shaped by that State intervening. Sovereign States Consensus (not consent) The decisions are adopted (at a multilateral level) with the absence of objections. Usually used for sensitive issues. It allows States “to not put” their face on the issues. Decisions are applicable in the domestic legal system through national implementing acts. Reciprocity You follow international law for self- interest. If you follow the rules, there is also the expectation that others will as well. It’s reciprocity for the sake of a stable environment. It maintains that level of being covered, without having to explicitly express their views. Decisions need to be transposed into each domestic legal system. This is the connection between domestic and international law. Here, it’s up to each constitutional provisions of each system to decide whether to be more trusting of international law. Monism - More open and trusting if international law rules. - No need for the filter of domestic law transposing a convention. Dualism - There is a filter. The Convention, to become domestic law, requires a law that may rewrite the provisions contained in the convention. - You transform international law rules into domestic law rules. The aim of international law isn’t punishment, but willing compliance with the rules. Excursus There is an enforcement mechanism e.g., sanctions or countermeasures. From the legal side, there are unilateral or collective enforcement mechanisms to sanction States. The decision to intervene with countermeasures is inherently political. Does the decision to intervene depend on a limit to international law? Probably not. Intentional law is a tool. When there is the political will to react to a breach, international law gives the tools to do so, not through punishment, but through countermeasures and sanctions. There is a tool of enforcement based always on a political dimension or decision whether to participate in a reaction towards the breach. International law is a modality to communicate and potentially react to breaches. It’s not, like in domestic systems, as an enforcement mechanism. It’s the possibility to solve disputes and communicate. International law doesn’t oblige States to solve their disputes. There are no rules of this type. It's also a method of reaction to breaches, which has limits. It works on reciprocity and self-help. There is no third-party enforcer of the rules. So, there are countermeasures. In case of a breach of a treaty, States can either use self-help or dispute settlement (in court or tribunal, but with consent)—the State self-assesses. The State decides to react, without needing a third-party intervention. The aim, again, is not to punish but to restore the balance. Lesson 3 22/09/2023 Chapters 2 and 3. She’ll start with Chapter 3. Treaty Law Where is the provision indicating what the sources of international law are? Art. 38 ICJ Statute is the point of reference for the sources of international law. The instruments are in the hands of the judges to solve the disputes. This list tells us what the sources of international law are: 1. The Court, whose function is to decide in accordance with international law such disputes as are submitted to it, shall apply: - International conventions, whether general or particular, establishing rules expressly recognized by the contesting states; deals with treaty law. - International custom, as evidence of a general practice accepted as law; - The general principles of law recognized by civilized nations;  this formulation is outdated. It’s not acceptable anymore. The ILC (the International Law Commission) has eliminated this expression. Now, it’s just called general principles of law. - Subject to the provisions of Article 59, judicial decisions and the teachings of the most highly qualified publicists of the various nations, as subsidiary means for the determination of rules of law.  these are the subsidiary means that the judges use to determine the law to solve the dispute. 2. This provision shall not prejudice the power of the Court to decide a case ex aequo et bono, if the parties agree thereto.  the application of equity principles which the Court might decide to apply, provided that the parties do consent to it. These are the sources to be applied in a case and we recognise them as international law sources. We can also mention soft law as a source, although it’s not codified. An important role is played in the clarification of these sources. In this context, the ILC plays a big role. It is currently codifying and writing the existing norms at the international law level in different subjects. The ILC is a committee of experts. It was established by the UN Charter, with Art. 13, to codify international law and promote its progressive development. These activities are key to understanding how the sources of international law work and how they are written down and codified. The job of these experts is not just looking at what customary international law and treaty law are, but also promoting the progressive development of international law. Is there a hierarchy between the sources of law? No, there isn’t. This hierarchy isn’t mentioned in art. 38. Just because treaties are mentioned first doesn't mean they are superior. However, we must recognize that, although there isn’t legally and technically any prominence of source over the other, because of the emerging values of the international community leading to new core principles, especially after WWII, led to the creation of a bulk of international law rules called ius cogens (also known as peremptory norms of general international law). This is because of the contents of these rules: they seem more important than others. This doesn’t mean that they are different from the others. Ius cogens rules are nothing but customary international law that, because of their specific content, states decided that it was more important because of the breaches of it, compared to the other customs. What are the differences between ius cogens and the other types of customs? It comes from the legal consequences deriving from their breach. We see the differences by looking at what happens when ius cogens is breached. then can become fully-fledged treaties. This treaty, like the VCLT, is also called a codification convention. Why?  As we know, the job of the ILC is to codify and progressively develop international law.  The outcome of these works, when and if they become conventions, is called codification conventions.  They are prepared to codify and put into writing customary international law.  E.g., the VCLT reflects customary international law. It is one of the most refined conventions in the world. It’s a global treaty. The ways treaties are made must follow what is written in the VCLT.  Another type of codification convention is the Law of the Sea Convention. It has codified the early practices of the delimitation of maritime borders between states and has put into writing the practice, reflected in the opinio iuris, of maritime delimitation. After the stratification of different conventions, it became the codification convention of the Law of the Sea Convention. o With this example, we see that codification conventions don’t just arise out of the works of the ILC. It’s not only linked to the job of the ILC. o Codification conventions might be based on the activity of the ILC, but not necessarily. E.g., UNCLOS is the product of a stratification of different treaties, which became, in 1982, thanks to the will of the States, a codification convention. There is no hierarchy unless we talk about the material content of the ius cogens. There are different moments in history which also reflect different techniques of adoption of the sources of international law. The moment in history where we find a higher tendency for customary international law to be adopted, especially in the past, it’s when there is homogeneity or the values in the international community are homogenous. Therefore, there is a situation where we don’t need to necessarily put everything into writing because we already know how things are: it’s a practice. The practice and opinion iuris and the values amongst the members of the international community were so homogenous that they didn’t need to put them into written form. The more homogenous the values within a society, the more we find customary international law to be the leading source of international law. The less homogenous the values and the more players we have within the realm of creating and participating in the formation of international law, the more difficulty in having customary international law. There are key moments in history in which things changed. From the beginning of the 20th century onwards, things became less homogenous. Therefore, written treaty law became prominent. States were willing to adopt treaty law instead of customary international law. E.g., the process of independence of the colonies led to a moment, in the 60s, in which States became, numerically, independent States in the international arena. When we have more players, there are more views and States are less inclined to follow the rules adopted by their colonisers. They are less likely to accept it since they didn’t participate in its creation because they weren’t independent. With independence, they wanted to participate in the formation of rules, and they believed more in treaties than in customary international law since it represented the colonial period. The role of rules of international law has this background since they reflect the various historical evolutions of the positions of the States in the international community. Looking at the years in which these pivotal treaties were adopted, there is a trend of being inclined to participate in international negotiations leading to more written law as opposed to custom, non-written law. - 1949 UN Geneva Conventions on International Humanitarian Law. - 1961 Vienna Convention on Diplomatic Relations. o It’s a multilateral convention but it’s based on bilateral, synallagmatic, obligations. You both respect the obligations before another State, in pairs. If you breach it, you are breaching it before another State. E.g., if a diplomat isn’t expelled correctly, the convention is breached before the State. - 1978 Vienna Convention on the Succession of States on Treaties. - 1982 UN Law of the Sea Convention. - 1986 Vienna Convention on the Laws of Treaties between States and I.O. or between I.O. - + Human rights treaties and MEAs (multilateral environmental agreements) (protection of collective interests and solidarity). All States have an interest in seeing these rights technically respected. Reality is different since human rights are always violated. The system of obligations mentioned under the VCDR changed in terms of treaties encompassing different types of obligations not being synallagmatic anymore. Why? Because there are human rights treaties on the international scene, multilateral environmental agreements, and Conventions like the one on the prohibition of genocide. Provisions contained in multilateral treaties aren’t reciprocal nor synallagmatic because those obligations are of interest to every treaty member. If you breach it, you’re not just breaching it before State B but in front of all other states. The multilateral treaties aren’t creating obligations like bundles, which impairs States A and B, but there are multilateral treaties creating erga onmes partes obligations. We are looking, in this case, at a provision created by an ius cogens norm within a treaty. If they aren’t included in a treaty, they are just called erga omnes obligations, if they are based on customary international law. Art. 2 of the VCLT refers to a written form, governed by international law, whether embodied in a single instrument or in two or more related instruments (e.g., an exchange of notes between 2 States. They are separate but together they form a treaty if that is the will of the parties) and whatever its particular designation. Bangladesh vs. Myanmar before ITLOS - This case allowed the Court to clarify the meaning of “whatever its particular designation”. o The case had to do with the maritime delimitation (which is relevant for the rich resources found in those areas) between Bangladesh and Myanmar and the extension of the territorial sea. They had to delimit the maritime boundary and extend the territorial sea, the exclusive economic zone, and the continental shelf. o The problem was whether the Agreed Minutes of the meetings between the two delegations were to be considered a treaty. o Before starting the case, these two representatives of the States had many meetings and rounds of talks. Every time two delegations talk, they produce the minutes, the written recordings of what has been said in these meetings. o At some point, the delegations signed the Agreed Minutes regarding the delimitation of the maritime boundaries of the States. o Could these Agreed Minutes considered a treaty, so legally binding? Within the meaning of art. 15 UNCLOS, was it a legally binding agreement? Art. 15 To delimit a territorial sea between states with opposite or adjacent coasts, you needed an agreement. This was a matter of interpretation in the hands of the judges. The judges have to make the decision and decide if there was clear consent to create something binding for the states, from both sides. The master of the rules is always consent. Did they consent to delimit this way the territorial sea, as written down in the Agreed Minutes? The judges, to come up with an interpretation, used: depends on the constitutional provisions concerning the way they treat treaties. The moment of ratification is the moment consent to be bound is shown. There are 2 options: o Simplified: the signature of the treaty by the representative entails consent. The parties to the treaty agreed that signature = consent. Art. 12 VCLT:  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; (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. o Formal : it’s found in Art. 14 VCLT. Consent is expressed by ratification. It requires a passage through Parliament. There is a need for parliamentary authorisation.  It’s linked to the political importance or relevance and it has to do with key matters that require a passage through Parliament you want the public scrutiny of the obligations that the State takes on board.  How the State presents the piece of domestic law, demonstrating that they have incorporated the treaty within the legal system. This is the instrument of ratification presented at the international law level.  To whom is the instrument of ratification presented? It depends on what the treaty says. Within them, there is a provision that mentions the depository of the ratification. It is usually the Secretary General of the UN, for example.  Multilateral treaties need a certain number of ratifications to enter into force. There is a threshold to respect. - Good faith applies so that we don’t have to behave in a way, pending the instrument of ratification being deposited, in a way that could jeopardise the operation and the entry into force of the treaty. Good faith is found in different sectors and informs various areas. For the sake of treaty law, we find Art. 18 VCLT: 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  a State is master of the treaty. It can freely change its mind since there is no third party obliging states to follow through. If a state has signed a treaty, it might not want to ratify it anymore. This can happen. If it does so, it has to vocalise it. It has to tell others. (b) it has expressed its consent to be bound by the treaty, pending the entry into force of the treaty and provided that such entry into force is not unduly delayed. We have to look at the processes as being parallel tracks. There is the domestic track that follows the constitutional provisions which is linked to the international track, which has a bearing on the life of the treaty. The domestic track is when states express their consent through their peace of legislation. This is made at the domestic level. the domestic track becomes effective when the international track obtains the necessary number of ratifications to enter into force. - What happens domestically isn’t relevant in the international scene. Even mistakes made domestically, in principle, aren’t relevant. States want to rely on the stability of relationships. They aren’t asked to study the other’s constitutional practices. Domestic law isn’t relevant to international law. When do treaties enter into force? - It depends on the type of treaty. - The multilateral treaty will tell us because there is a provision written. - Normally, there is a threshold in the case of multilateral treaties. What if states want to become parties to a treaty when it has already entered into force? - This is normal in multilateral treaties. States might want to become parties and deposit their instrument of acceptance of approval, even when the treaty has already entered into force and has already reached the numbers needed. - The provisions of the treaties need to allow this to happen. o Open treaties mean that other states can join in and deposit their instrument of acceptance, even at a later moment. o Close treaties don’t allow this. - Multilateral treaties must have these provisions telling us when they enter into force. - For bilateral treaties, it’s the moment when the 2 state representatives exchange their instruments of ratification and the treaty enters into force. o There is no need for a threshold. The more the number of instruments is deposited, the more you want to show consent. There is a political background. The more delicate the treaty is, the more ratifications are needed there needs to be a solid base of states showing consent. The less tricky it is, the lower the threshold. Sometimes, like the Paris Agreement, it’s also linked to certain states showing emission reductions. The structure of a treaty: - The aims, found at the beginning of the treaty, cannot be defeated by the behaviour of one of the parties. - There is a list of definitions. - There are the core provisions and obligations. Here, we have to look at the formulation to understand the treaty. - There are provisions for the settlement of disputes . o It’s a key provision in treaties. o They might search for diplomatic means seeking solutions through negotiations/mediation. They have to act in good faith. o If a dispute arises on the interpretation and application, they choose a judiciary. o They refer to the steps to undertake if the negotiation fails:  The parties choose a forum/ refer the case to international arbitration. - There is the depository bit. - The entry into force. - Withdrawal. - The authentic texts are the authentic languages of the treaty. - The annexes They are binding like all parts of the treaty. Expression of consent: o Ratification as a means of expressing consent to be bound (Article 14 VCLT). o Agreements in simplified form: entry into force occurs through signature (Article 12 VCLT). o Obligation of registration at the UN Secretariat (Article 102 UN Charter and Article 80 VCLT).  Art. 102 UN Charter says: Every treaty and every international agreement entered into by any Member of the United Nations after the present Charter comes into force shall as soon as possible be registered with the Secretariat and published by it.  The Italian Government decides to adopt in simplified form a bilateral agreement that agrees to establish a certain number of military bases on Italian soil in favor of another State.  This treaty has been ratified by the Italian President of the Republic but without the law that authorizes the ratification.  Is it valid?  Italy, for political reasons changed ideas and does not want these bases anymore. Can it invoke art 46 VCLT and art. 80 Constitution?  Instead, if it wants to keep the agreement, it needs to adopt a domestic law to fix the unconstitutionality. Lesson 6 29/09/23 Art. 46 as an exception to the general rule of non-relevance of domestic law in the international scene. Cameroon v. Nigeria  related to the application of Art. 46. - Nigeria claimed that the HoS had signed an agreement with Cameroon on territorial delimitations, but it was the military council who should’ve given consent and Cameroon should’ve known of this procedure. Thus, for Nigeria, a rule of domestic law that was fundamental was breached. - The ICJ rejected Nigeria’s claims. This highlights the meaning and interpretation of what is “manifest”. The violation wasn’t manifest since otherwise, every state should be aware of every specific, domestic, constitutional provision of every other country. This would put a high burden and threshold on states. Also, there is good faith there is the HoS, a plenipotentiary, on whom I rely. If he had expressed consent, he should’ve known that there was a requirement to go through the military council. o The ICJ There is no general, legal, obligation for states to keep themselves informed of the constitutional developments in other states. Articles on Invalidity (Art. 46) Invalidation of consent Invalidation of the treaty itself Paragraph 1 Art. 46 deals with good faith: 2. A violation is manifest if it would be objectively evident to any State conducting itself in the matter in accordance with normal practice and in good faith. Error and Fraud - Error o Art. 48 VCLT. A State may invoke an error in a treaty as invalidating its consent to be bound by the treaty if the error relates to a fact or situation which was assumed by that State to exist at the time when the treaty was concluded and formed an essential basis of its consent to be bound by the treaty. o Not having read the documents properly isn’t an error to invoke to invalidate a treaty. o Exception (?): you rely on something that in fact has an error.  E.g., negotiating a bilateral treaty on territorial delimitation. The plenipotentiaries are discussing based on an old geographical map, that shows old boundaries, that aren’t valid anymore. This is something that can be used to invoke error since it forms an essential basis. - Fraud o Art. 49 VCLT. If a State has been induced to conclude a treaty by the fraudulent conduct of another negotiating State, the State may invoke the fraud as invalidating its consent to be bound by the treaty. o E.g., a representative signs an agreement because of the fraudulent behaviour of another state representative. Coercion - Coercion of a representative of a State o Art. 51 VCLT. The expression of a State’s consent to be bound by a treaty which has been procured by the coercion of its representative through acts or threats directed against him shall be without any legal effect. - Coercion of the State o Art. 52 VCLT. A treaty is void if its conclusion has been procured by the threat or use of force in violation of the principles of international law embodied in the Charter of the United Nations. o The threat of force is military. There have been harsh discussions to include economic or political threats in the meaning of this article. Instead, a separate declaration was attached to the VCLT solemn condemnation of the use of force of any kind to coerce states to agree. However, there are no legal repercussions since it’s soft law and thus not binding. Definition of ius cogens o Art. 53 VCLT. A treaty is void if, at the time of its conclusion, it conflicts with a peremptory norm of general international law. For the purposes of the present Convention, a peremptory norm of general international law is a norm accepted and recognised by the international community of States as a whole as a norm from which no derogation is permitted and which can be modified only by a subsequent norm of general international law having the same character. o This definition is basic and doesn’t include a list of examples.  They couldn’t make a list since they didn’t want to fix reality.  It’s linked to state responsibility.  It runs parallel to treaty-making (the law of the treaties). o Who oversees highlighting the ius cogens? Usually, the ICJ. Termination and Duration of Treaties - Every treaty has termination provisions. - There are internal and external grounds that can lead to termination: o Internal grounds  E.g., the treaty has an explicit duration.  Unilateral withdrawal with a period of notice, e.g., Canada with Kyoto Protocol or USA with Paris Agreement; sunset clauses.  Sunset clauses: even if a treaty is terminated, this clause allows for the protection of investors for a longer period. o External grounds  E.g., material breach of the treaty: supervening impossibility of performance; fundamental change of circumstances.  Gabcikovo-Nagymaros Project case. Lesson 7 04/10/2023 Erga omens partes Integral treaties - The states still think it’s good to stay in it. - A breach doesn’t jeopardise the further continuation of the treaty. - It doesn’t change the further performance or continuation of the treaty. - All states will “jump ship”. - All states will want to get out of the treaty. - If one state breaches the treaty, the deal is off. - Treaties can be based on a set of synallagmatic obligations. - Treaties can establish erga omnes partes obligations (e.g., agreements to protect fisheries). The Gabcikovo-Nagymaros case - It involves Art. 60, 61, and 62 VCLT. All these articles need to be interpreted restrictively.  Art. 61: 1. A party may invoke the impossibility of performing a treaty as a ground for terminating or withdrawing from it if the impossibility results from the permanent Supervening impossibility of performance. - It’s when the object, indispensable for the execution of the treaty, disappears or is destroyed. Thus, termination is invoked because the object, that was essential for the treaty, has disappeared. disappearance or destruction of an object indispensable for the execution of the treaty. If the impossibility is temporary, it may be invoked only as a ground for suspending the operation of the treaty. 2. Impossibility of performance may not be invoked by a party as a ground for terminating, withdrawing from or suspending the operation of a treaty if the impossibility is the result of a breach by that party either of an obligation under the treaty or of any other international obligation owed to any other party to the treaty.  Art. 62: 1. A fundamental change of circumstances which has occurred with regard to those existing at the time of the conclusion of a treaty, and which was not foreseen by the parties, may not be invoked as a ground for terminating or withdrawing from the treaty unless: (a) the existence of those circumstances constituted an essential basis of the consent of the parties to be bound by the treaty; and […] - - There was the idea, started by Czechoslovakia, to establish in 1977 a bilateral treaty with Hungary to set up a system of “locks” and damns. o To organise the Danube River. o To use it for hydro energy powers. The fundamental change of circumstances. There were unforeseeable changes in the circumstances that brought about the treaty. It’s formulated in the negative: we find the word unless. You can’t invoke it, unless… o To improve the navigability of the river. o To produce electricity. o It was a hydroelectricity project and a joint investment. - Each party had different obligations. - The construction of the joint investment had started but, at some point, Hungary decided to suspend the treaty unilaterally and tried to terminate it. It started involving reasons to do so: o In October 1989, it started to invoke economic but especially ecological reasons.  They considered the system of damns as not being ecologically sound anymore. They invoked an ecological necessity. - Hungary transmitted a Note Verbale to terminate the treaty (19 May 1992 with effects taking place from 25 May 1992) invoking the supervening impossibility of performance, fundamental change of circumstances, and material breach of the treaty. o The core issue was that, at that time, Czechoslovakia, as a reaction, said that it would’ve diverted completely the route of the project, with a variation of a project: Variant C (November 1991). This wasn’t contained in the original treaty. o Czechoslovakia effectively diverted the waters of the Danube only in October 1992. - The case was brought to the ICJ. It had to look at the VCLT to see if there were grounds for Hungary’s claims. Material breach: Not found because of the timing of the Note Verbale. The variation of the route of the Danube wasn’t in place. Thus, there was no effective material breach. The breach needs to happen, it can’t remain a theory. The notification of termination was premature because at that time Czechoslovakia had not diverted the waters yet. Ecological necessity: Not found. Hungary did not establish that the environmental uncertainties amounted to “perils” to the environment or that they were imminent. Supervening impossibility of performance: Not found. The “Object indispensable for the execution of the treaty” (the legal regime set up by the 1977 treaty) wasn’t “permanently disappeared” or “destroyed”. The fundamental change of circumstances: Not found. The new developments in the state of environmental knowledge were not completely unpredictable or unforeseen and the dissolution of Czechoslovakia did not alter the obligations under the ‘77 treaty. o They wanted Art. 6 (2) to correspond not only to treaty law but also to reflect customary international law.  If they argued and demonstrated it did, then also Germany has to be bound to it even if it never ratified Art. 6 of the Convention. Germany had just signed this Convention but never ratified it. Thus, Germany wasn’t part of it. - This case led the ICJ to analyse and present the relationship between codification conventions and the progressive development of customary international law. - Within the context of the case, it elaborated 3 concepts: o Codification. o Crystallisation. o Norm creation character . - The ICJ had to establish whether paragraph 2 of Art. 6 of the Convention also reflected customary international law. Can it also bind Germany, which wasn’t part of it? - They had to analyse the practice of states, including Germany concerning Art.6. - The starting point was that Germany wasn’t part of the Convention and had just ratified it. - This wasn’t the only analysis they had to go through. They elaborated a relationship of 3 ways to look at the relationship between customary international law and codification conventions:  Customary international law is made of elements of practice, combined with opinio iuris. o Codification effect : when the treaty just codifies and puts into writing what already exists as a custom. It doesn’t add anything because the custom is already mature. o Crystallisation : it’s when the codification convention helps the process of formation and conclusion of the formation of the custom. The treaty has more impact compared to the first case. It finalises a process that was already in place, but the treaty gave it the final push.  Art. 6 of the Convention could also become binding as customary international law because it’s thanks to Art. 6 that the corresponding customary international law was seen as applied by everyone. o Norm creation : we are in a much earlier stage of the formation of the custom. The treaty greatly impacted the formation of the custom. Thanks to the strength of the treaty, the practice started to evolve more, mirroring the evolution of the treaty. First comes the treaty, then the custom. - The ICJ had to resolve the case by looking at the behaviour of the other states and Germany. - They came up with the answer that Art. 6 of the Convention didn’t have any of these 3 effects: Art. 6 didn’t correspond at all to customary international law, and there was no corresponding customary international law on the equidistance principle. It existed only in the realm of treaty law, not customary international law. Since it existed only in the realm of treaty law, states not part of it weren’t bound. - Thus, the case was resolved with the equitable (equity) principle, otherwise Germany would’ve been at a disadvantage. - Looking at the analysis of the ICJ within the case, we see how norms are created. o The ICJ had to investigate Germany’s behaviour, both past and present. o Thus, it came up with the concept (which already existed) of estoppel: it applies to situations when you are investigating the practice of states.  E.g., Had Germany, in the past, always maintained that they believed in the principle of equidistance? If they had declared they had always followed the principle, they wouldn’t have been able to deny it nor could they have taken advantage of their contradictions.  Consistency of behaviour is key .  Estoppel prohibits states from taking advantage of their contradictions.  Only the existence of a situation of estoppel could lend substance to the contention of Denmark and the Netherlands-i.e., if the Federal Republic were now precluded from denying the applicability of the conventional regime, by reason of past conduct, declarations, etc.., which not only clearly and consistently evinced acceptance of that regime, but also had caused Denmark or the Netherlands, in reliance on such conduct, detrimentally to change position or suffer some prejudice. Of this, there was no evidence. Accordingly, Article 6 of the Geneva Convention was not, as such, applicable to the delimitations involved in the present proceedings. - Another element to be seen is that Art. 6 allowed for reservations. o Some treaties may or may not allow reservations: Interpretation of treaties Art. 31 VCLT: 1. A treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose. 2. The context for the purpose of the interpretation of a treaty shall comprise, in addition to the text, including its preamble and annexes: (a) any agreement relating to the treaty which was made between all the parties in connection with the conclusion of the treaty; (b) any instrument which was made by one or more parties in connection with the conclusion of the treaty and accepted by the other parties as an instrument related to the treaty. 3. There shall be taken into account, together with the context: (a) any subsequent agreement between the parties regarding the interpretation of the treaty or the application of its provisions; (b) any subsequent practice in the application of the treaty which establishes the agreement of the parties regarding its interpretation; (c) any relevant rules of international law applicable in the relations between the parties. 4. A special meaning shall be given to a term if it is established that the parties so intended. - Treaties must be interpreted (Para. 1): o In good faith. It means that it’s not generally accepted that those rules can solve the issues. The subject matter is stable. Sometimes, to check the behaviour of states, there could be individuals sending communication against a state that hasn’t complied with a provision; they review reports from states about the status of implementation of the provisions etc. Because of the proliferation of these Committees, there has been a struggle between the interpretation of the states and the expert bodies. Reservations (Art. 19-23 VCLT) - It’s such a difficult topic that the ILC had to write on it. The idea behind them is to have as many states as possible on board. The effect is fragmentation: there is a need to accommodate the peculiar needs of the states, which may have some problems with some provisions. - Definition It’s found in Art. 2 (d) VCLT: “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. This is quite intrusive. The aim is to obtain an exclusion/modification of the legal effects of a provision towards the reserving state. This isn’t like interpretation: there is a difference between fully-fledged reservations and interpretative declarations. This could be an issue if the state asks for a reservation on a core issue dealt with by a provision. There is a need to accommodate flexibility (you want more states on board) and universality (yet you want rigidity, so the treaty is functional). This is why reservations cause fragmentation There is a fragmented set of legal relationships that are different depending on what states you’re looking at in their relationship with others. - When was the idea established? - It’s not simply a clarification or interpretation. - You are asking not to be legally bound to a provision. - It’s telling the others how you understand a provision. - It’s not a request to exclude the legal effects of a provision. - Unanimity used to be the rule for reservations to be accepted. - In 1951, the ICJ, there was a debate on the possibility of having reservations on the Genocide Convention, delivered a famous advisory opinion, where the problem of reservations was clarified: whether unanimity was required, or a more flexible approach could be used. o The problem was that the Convention was silent on reservations. o Many states wanted to enter the Convention, but they wanted to put a reservation on Art. IX of the Convention.  Art. IX has to do with allowing the states to present a case before the ICJ: the jurisdictional clause. - They didn’t want to be brought before the ICJ, so they proposed a reservation on Art. IX. - There was no guideline on whether reservations were possible, especially in a situation where not everyone was on board. - The ICJ had to decide on this difficult topic: whether states could present reservations the moment they accede to the Convention, even if the Convention is silent on the topic, and if other states could object to those reservations. - It had to choose between universality and flexibility. They had to find a criterion to overcome the unanimity principle. o The ICJ had to underline the importance of the integrity of the Convention. o Yet, it also had to choose a flexible approach to the treaty: states could come in with some reservations to accommodate the needs of the different states to encourage the participation of a wide range of states. - The advisory opinion : “[A] State which has made [...] a reservation which has been objected to by one or more of the parties to the Convention but not by others, can be regarded as a party to the Convention if the reservation is compatible with object and purpose of the Convention”. o At least one state has to accept reservations. o Again, the issue is what the meaning of “object and purpose” is. - This new criterion introduced by the ICJ, through practice, the opinio, and the acceptance over time, has been so accepted that the ILC codified it in the VCLT. - Art. 19 VCLT: 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  the permissibility requirement. (c) in cases not failing under subparagraphs (a) and (b), the reservation is incompatible with the object and purpose of the treaty. Who decides if a reservation is incompatible? There is no third body establishing the compatibility of reservations with treaties unless states decide to subject themselves to a tribunal. However, state consent is needed. Without it, there isn’t anybody enforcing anything. - Procedural provisions When presenting a reservation, Art. 23 VCLT needs to be followed: 1. A reservation, an express acceptance of a reservation and an objection to a reservation must be formulated in writing and communicated to the contracting States and other States entitled to become parties to the treaty. 2. If formulated when signing the treaty subject to ratification, acceptance or approval, a reservation must be formally confirmed by the reserving State when expressing its consent to be bound by the treaty. In such a case the reservation shall be considered as having been made on the date of its confirmation. 3. An express acceptance of, or an objection to, a reservation made previously to confirmation of the reservation does not itself require confirmation. 4. The withdrawal of a reservation or of an objection to a reservation must be formulated in writing. o Reservations need to be formulated in writing and communicated to the other parties. o Showing intention is crucial . Not opposing a reservation, after 12 months, leads to the acceptance of the reservation. - Arts. 20 and 21 VCLT (the opposability regime) The starting point: these articles regard the discretion of the parties to accept or refuse a reservation made by others. 2. The reservation does not modify the provisions of the treaty for the other parties to the treaty inter se. 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. o This is the most controversial one. o The convoluted formulation indicates that it’s based on a compromise. Lesson 10 11/10/23 - Continuing reservations. The criteria for admissibility went through a pivotal moment in which someone said something about the admissibility criterion which was codified in the VCLT. The ICJ solved the criterion. There is a moment of admissibility and a moment of acceptance or objection to reservations. The issue comes when other states take a different attitude towards a reservation of a multilateral treaty. One might ask if state consent is necessary to be bound by a treaty, how is the acceptance of a reservation that was objected to possible? In a way, there is consent because the state is part of a treaty towards which you are bound. It seems that consent is fragmented, and the state is obliged to accept the reservation. This situation operates in special treaties, economic treaties etc. The consent is the acceptance of the outcome. Art. 20(4)(b) - This is the more extreme option. - The treaty doesn’t enter into force between the reserving State and the State objecting not only to the reservation but also to the entry into force of the treaty in their bilateral relation. The entire treaty has no effect between the two states. o The reserving state is not a party to the treaty with the state objecting. Art. 21(3) - The provisions do not apply ‘to the extent of the reservation’ between the reserving State and the State that objects to it (but not opposing the entry into force of the treaty in their bilateral relation). The reserving state gets what it wants. The provisions are applied to the extent of the reservation between the reserving State and the State that does not object to (accepts) the reservation. In other treaties, this situation is more extreme: how is it possible that a state is “forced” to enter a treaty in a way that it didn’t want in the first place (since it needs to accept a reservation it didn’t want)? There is the case of human rights treaties. The VCLT talks about permissible reservations. Art. 19 is the article on the permissibility requirement: it tells us in which scenarios reservations are permissible. There isn’t a third party telling us that the “object and purpose” criterion is respected: it’s a state self-assessment. Each will decide if the reservation complies with the object and purpose of the treaty. Art. 19 serves as a guide for the state/tribunals to decide whether the reservation is allowed. For some treaties, Art. 19 tells us that reservations aren’t allowed. In other, only some types of reservations are potentially allowed. The criterion is compliance with the object and purpose of the treaty. When there is a situation of incompatibility, only after the assessment of Art. 19, Arts. 20 and 21 can follow. The VCLT has a gap in its analysis of reservations since it only deals with permissible reservations the legal effects of Arts. 21 and 21 are triggered when Art. 19 has been used. What happens when a reservation is impermissible? Art. 19 VCLT doesn’t deal with these situations. There is a gap. Now, we enter the realm of human rights treaties. Example: - A multilateral human rights treaty provides for the protection of the right to life, including the prohibition of applying the death punishment. - State A (when it ratifies the treaty) puts a reservation declaring that its consent to be bound is without prejudice to its domestic criminal legislation concerning the most heinous crimes which provides for the possibility of imposing the death punishment. o This is an impermissible reservation since it goes against the rationale of the treaty. The VCLT doesn’t deal with these scenarios since there isn’t an article on it. One might think that these scenarios don’t happen. Not true. They happen in the practice of HR treaties. A “Max Planck article” on it. At some point, it mentions HR treaties as a special case. it also refers to the Expert Committees being established by Conventions set up by experts: they check up on compliance with the provisions. The reading mentions the International Covenant on Civil and Political Rights Committee. This HR Committee hears individual communications: technically, an individual can sue a state for the violation of the Covenant, thus overcoming the classic paradigm of inter-state cases. There was a case in Trinidad and Tobago. In the context of the ICCPR and the HR Committee, it presented a reservation by saying that the HR Committee wasn’t competent to hear and consider communications from groups of communicants. There were prisoners under the death penalty. Even if it was possible for all types of citizens under the jurisdiction of the state to bring claims against it for violation of the ICCPR, Trinidad and Tobago put a reservation: communicants can’t be prisoners. For it, they weren’t entitled to the possibility to sue the state. Prisoners under a death sentence weren’t allowed to present a communication against Trinidad and Tobago before the HR Committee, as a reservation for the normal possibility of non-prisoners being able to sue. This created a mess. It became clear that in some exceptional cases (i.e., HR treaties), a practice emerged within the Expert Committees: the Expert to HR treaties decided that it was such an incompatible reservation that they had to consider that it had never been presented in the first case. - The reservation is “severed” and the treaty is fully applicable between State A and the other States presumably objecting to it: State A doesn’t win. o In the practice related to human rights treaties (e.g., European Court of Human Rights), objection to a “substantive” reservation leads to the application of the treaty as if the reservation to the provision never existed: very difficult to accept for reserving (sovereign) States, though. Apart from human rights treaties, the “severance” of reservations does not normally occur. This created many problems to the point that Trinidad and Tobago threatened to get out of the treaty. The issue was solved at the diplomatic level with the promise of the HR Committee to make sure they wouldn’t, in the future, adopt an extreme attitude: they promised to adopt an attitude of compromise approach concerning the states. Customary International Law There is a different document by the ILC: ILC Draft Conclusions on the identification of customary International Law 2018. This is an exception to the functioning of the VCLT: it’s not even covered by it. There aren’t any references to it in the VCLT. Apart from HR treaties, severance doesn’t happen. - E.g., a State breaches the use of force rule, as is the case in Nicaragua v. USA. o The issue was whether Art. 2 paragraph 4 of the UN Charter concerning the prohibition of the use of force in international relations was deemed corresponding to customary international law. o This is why they had to go through this analysis.  Is the prohibition of the use of force a practice in line with Art. para. 4 as custom?  Should this practice be perfect and consistent?  If a state defends its conduct by appealing to exceptions and justifications contained within the rule, the state is confirming the rule. There isn’t a need for complete uniformity because the process of formation of customary international law allows for breaches. However, these breaches need to find a basis in justifications or exceptions found within the rule.  The breaches confirm rather than deny the legal effects of the rules. We have to look at the way states behave and what they declare. Other states need to be aware of my declaration, which has a meaning. For the interpreter, this meaning might signify that we are before a process that’s starting the change of the rule or a process confirming the rule. - The dual theory of customary international law o The two constituent elements are:  A general practice consistently repeated over time. It’s the objective element.  Accepted as law (opinio juris) – consciousness by state organs that the practice conforms to a legally binding rule (or to what ought to be a rule). It’s the subjective element. The elements of practice and opinio iuris have to both be present and established as existing. - Practice without opinio is just a non-binding usage , a courtesy between the states. - Opinio without practice is just an aspiration that something should be law . Some behaviours don’t amount to custom and yet states behave in a certain way. What’s the box in which we could put these “other behaviours”? E.g., participating in the General Assembly. This doesn’t amount to custom. It’s just an element. + What about a state taking the floor and making a statement? This would be opinio iuris it’s the subjective element. It’s not easy to distinguish the two every piece’s objective element could also reflect an element of opinio iuris. Very often, the interpreter might see this interchangeable nature of the elements of practice and opinio. - There could be an element of practice that also reflects opinio and vice versa. It’s not written in stone the fact that it’s just practice or opinio. They are two sides of the same coin: one can reflect the other. - What is an example of state practice? Where would we find it? There is an article in the Draft Conclusions on the Identification of Customary International Law: Conclusion 5 Conduct of the State as State Practice State practice consists of conduct of the State, whether in the exercise of its executive, legislative, judicial or other functions. - It doesn’t matter if it’s the administrative, judicial, or executive branches etc. - All of them might reflect a certain practice and/or opinio iuris, but especially practice. - The specific articulation within the state from which practice may emerge isn’t relevant. o This comes from the principle of the unicity of the state. This principle has to be linked to the non-relevance of domestic law in the eyes of other states. o They work in pairs. Describing what’s happening domestically (without considering Art. 46 VCLT) doesn’t matter since other states can’t check all the national domestic laws all the time to conclude a treaty. It would be too burdensome for the state and it’d create instability. o The principle of unicity responds to the same rationale: it doesn’t matter which articulation of which branch within the state is exercised.  They have shown a piece of state practice or they have shown acceptance/refusal.  All these practices compose the state and the unicity of the state in front of others.  As an interpreter, you have to check which kind of relevant domestic practice you’re looking at.  If, from the pov of the interpreter, the state is a unique block (what happens domestically is irrelevant), the interpreter should look at all the various elements in their context.  If a judge of the ICJ has to look at the existence of the practice of a state accepting or not the rule of the prohibition of the use of force, the judge will look at the reflection of practice at the domestic level and whether a domestic decision of a lower branch has been confirmed or not by a higher branch. - What are the characteristics of practice? o It comes from different branches. o It might be diplomatic. o Both judicial domestic practice and practice of a state within a judicial case: within an ICJ case, a state might present their documents. In them, we understand what the state shows as an element of practice. o The conclusion of international agreements e.g., Continental Shelf case. There was a moment in which the treaty could have a norm- creation effect. Thus, your attitude/ practice concerning a treaty, like the fact that a state wants to enter a treaty and ratify it the fact that, in the above-mentioned case, the Netherlands and Denmark ratified the Geneva Convention on the Continental Shelf shows their practice concerning the principle of equidistance.  The state’s attitude concerning the content of a treaty also needs to be taken into account as an element for a potential customary law reflecting the treaty. - It doesn’t have to be perfect. - The attitude of a state concerning treaties. This point starts in Part Five: Part Five Significance of certain materials for the identification of customary international law […] This is the codification by the ILC of the Continental Shelf case tripartition: - Crystallisation. - Norm-creation. - Codification. This is all within the context of the codification of customary international law. Conclusion 11 Treaties 1. A rule set forth in a treaty may reflect a rule of customary international law if it is established that the treaty rule: (a)codified a rule of customary international law existing at the time when the treaty was concluded; (b)has led to the crystallization of a rule of customary international law that had started to emerge prior to the conclusion of the treaty; or (c) has given rise to a general practice that is accepted as law (opinio juris), thus generating a new rule of customary international law. Para. 2 is interesting: 2. The fact that a rule is set forth in a number of treaties may, but does not necessarily, indicate that the treaty rule reflects a rule of customary international law. - The treaty is fixed, it’s written. To change it, we need lengthy amendments, they require ratification etc. It’s a burdensome process. - Custom evolves easily. There’s a constant potential change in custom because it’s unwritten. o This is why para. 2 tells us not to take for granted that when we have a treaty provision in front of us it necessarily means that it reflects customary international law. - Opinio iuris It can be inferred from the same pieces of state practice: - E.g., a parliamentary debate over the adoption of a certain statute may indicate that it has been adopted to promote a certain international custom. - Prohibition of the use of force in treaty law and customary law Nicaragua v. USA case Nicaragua’s allegations against the US: - Support to “contras” acting against the new Sandinista government in power. o According to Nicaragua, the contras have caused considerable material damage and widespread loss of life and have also committed such acts as the killing of prisoners, indiscriminate killing of civilians, torture, rape and kidnapping. - Mining of Nicaraguan ports by US military personnel or people in the pay of the US. - Infringement of airspace by US military aircraft. - Opinio (paras. 183-189 of Nicaragua v. USA ) The attitude of parties towards certain GA Resolutions was seen as acceptance of the validity of the rule declared by the resolution. They were in search of the customary reflection of the rule contained in the UN Charter: the prohibition on the use of force as contained in Art. 2 para. 4 of the UN Charter. o They had to look at all the opinio concerning that Charter article. Among this declaration of opinio, we find the attitude of the parties towards the adoption of this Resolution: - The 1970 Declaration on Principles of International Law concerning Friendly Relations and Cooperation among States under the Charter of the United Nations. - In it we find this  This is a resolution. They have made statements concerning this resolution. This attitude showed support. - The Court, at the time, had in front of it the treaty. But because they couldn’t adjudicate based on treaty law, they had to circumvent this obstacle by demonstrating that Art. 2 para. 4 was also in the realm of customary international law. The fact that the US ratified the Montevideo Convention on Rights and Duties of States (which is especially relevant for the concept of statehood) of 1933, which contains the obligation not to recognize territorial acquisitions obtained by force, amounts to acceptance of the text and the rule underneath. Also, frequent statements by State representatives as a principle of customary law show that Art. 2 was custom. It’s not just a habit but it’s something mandatory, that needs to be respected. This is the attempt of the ICJ to unpack a very complex object, composed of two elements, which both make customary international law. - The attitude and resolution of the General Assembly is found in Conclusion 12 Conclusion 12 Resolutions of international organizations and intergovernmental conferences 1. A resolution adopted by an international organization or at an intergovernmental conference cannot, of itself, create a rule of customary international law. 2. A resolution adopted by an international organization or at an intergovernmental conference may provide evidence for determining the existence and content of a rule of customary international law, or contribute to its development. 3. A provision in a resolution adopted by an international organization or at an intergovernmental conference may reflect a rule of customary international law if it is established that the provision corresponds to a general practice that is accepted as law (opinio juris). As seen in the Commentary to the Conclusion, (7)Paragraph 2 further acknowledges that resolutions adopted by international organizations or at intergovernmental conferences, even when devoid of legal force of their own, may sometimes play an important role in the development of customary international law. This may be the case when, as with a treaty, a resolution (or a series of resolutions) provides inspiration and impetus for the growth of a general practice accepted as law (accompanied by opinio juris) conforming to its terms, or when it crystallizes an emerging rule. beginning of the formation of the rule when it’s starting to surface. o 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.  What are the conditions for this to happen?  The expression of opposition MUST be clear, unambiguous, and maintained persistently. It must be made known to other states: o You can’t just be vocal at the domestic level but you need to show your intentions to the international community.  As per para. 8 of the Commentary: The requirement that the objection be made known to other States means that the objection must be communicated internationally; it cannot simply be voiced internally. It is for the objecting State to ensure that the objection is indeed made known to other States.  As per para. 9 of the Commentary: It is clear, however, that States cannot be expected to react on every occasion, especially where their position is already well known. Second, such repeated objections must be consistent overall, that is, without significant contradictions.  There isn’t a list of tools, yet it should still be an international one to make all other states aware of your position. o As per para. 7 of the Commentary: A clear verbal objection, either in written or oral form, as opposed to physical action, will suffice to preserve the legal position of the objecting State.  The element of persistence is important. If there is an opportunity for a state to express its position again, it has to express it. Silence could be considered acceptance of a rule. Conclusion 15 Persistent objector 1. Where a State has objected to a rule of customary international law while that rule was in the process of formation, the rule is not opposable to the State concerned for so long as it maintains its objection. 2. The objection must be clearly expressed, made known to other States, and maintained persistently. 3. The present draft conclusion is without prejudice to any question concerning peremptory norms of general international law (jus cogens). o As per para. 10 of the Commentary: Paragraph 3 provides expressly that draft conclusion 15 is without prejudice to any question concerning peremptory norms of general international law (jus cogens). The commentary to draft conclusion 1 already makes clear that all of the present draft conclusions are without prejudice to questions of hierarchy among rules of international law, including those concerning peremptory norms of general international law (jus cogens), or questions concerning the erga omnes nature of certain obligations. - Can custom be particular? o In this regard, we find Conclusion 16: Conclusion 16 Particular customary international law 1. A rule of particular customary international law, whether regional, local or other, is a rule of customary international law that applies only among a limited number of States. 2. To determine the existence and content of a rule of particular customary international law, it is necessary to ascertain whether there is a general practice among the States concerned that is accepted by them as law (opinio juris) among themselves. o Especially affected states are even more relevant in this situation. - The Costa Rica v. Nicaragua case o ICJ Dispute regarding the Navigational and Related Rights.  The problem arose between the two states because the river was a natural resource shared between the two. A section of the river also corresponds to the border.  The issue is: what are the rights of vessels, passengers, and all the activities of commerce and trade, that are allowed in the area between the two states?  One part of the reasoning had to do with subsistence fishing by the inhabitants of the Costa Rican part of the riverbank for subsistence purposes.  Out of the commerce and trade purposes and needs, another issue was whether there was a particular customary international law rule between these states, allowing the inhabitants of the Costa Rican side of the river to fish for subsistence purposes. o This case became important because it showed how state behaviour, especially remaining silent for long, might amount to acceptance of a practice.  For Costa Rica, Nicaragua, having never done anything to deny the practice, implied the existence of a customary law rule.  For Nicaragua, this was a matter of tolerance of the use of the river for subsistence purposes. This couldn’t be seen as a recognition of the legal right of the inhabitants of Costa Rica to do so.  The question the ICJ had to answer was whether a long- established practice of fishing for subsistence purposes – a practice acknowledged by both States - evolved into a rule of (particular) customary law.  The ICJ didn’t uphold Nicaragua’s claim for the stability of relationships and because Nicaragua had plenty of time to oppose. Nicaragua was only objecting when the problem arose before the ICJ. This wasn’t in good faith. Nicaragua should’ve been vocal since long ago, not only when the case was brought before the ICJ. For the ICJ, in para. 141, “the failure of Nicaragua to deny the existence of a right arising from the practice which had continued undisturbed and unquestioned over a very long period, is particularly significant”.  In Conclusion 4 para. 8 of the Commentary, we find the role of NGOs as stimulating and supporting, but not the key element for the identification of a certain practice:  Paragraph 3 makes explicit that the conduct of entities other than States and international organizations — for example, non-governmental organizations (NGOs) and private individuals, but also transnational corporations and non-state armed groups — is neither creative nor expressive of customary international law. As such, their conduct does not contribute to the formation, or expression, of rules of customary international law, and may not serve as direct (primary) evidence of the existence and content of such rules. The paragraph recognizes, however, that such conduct may have an indirect role in the identification of customary international law, by stimulating or recording the practice and acceptance as law (opinio juris) of States and international organizations. For example, the acts of private individuals may sometimes be relevant to the formation or expression of rules of customary international law, but only to the extent that States have endorsed or reacted to them.  They aren’t fully-fledged subjects of international law.  E.g., amici curiae when there is a technically difficult case, judges might allow, within the proceedings, the amici curiae, the friends of the court. They are experts, also working in NGOs, giving their opinions. This opinion isn’t binding on the judges. The judges might allow their presence when they need technical help (e.g., environmental, engineering experts etc.). Judges aren’t scientists so they need help.  An issue prominent in the international environmental law area is the interaction between science and law. The more the case is difficult from an environmental perspective, the more they need outside help.  Some judges have been sceptical towards these amici curiae since the more open they are towards these experts, the more they are influenced. - States Let’s start with the more obvious subjects of international law: States. We’ll look at the elements of statehood. Before looking at Israel and Palestine, let’s start by saying that the reality of states in international law relations, the first moment of recognition as states as such, happened with the Peace of Westphalia (1648): from this moment, historically speaking, we see the idea of states. The international community became horizontal, the principle of sovereign equality (states as being equal) started, and independence when it came to religious choice (eius regio cuius religio principle). States became superiorem non recognoscens: they didn’t recognise anyone higher than them and all states were equal in law. The idea of the nation-state started in Europe. Not only the nation-state but also international law was a European concept by Grotius, the father of international law. From that moment, we find the idea of international law being a European development, with homogenous values. If we think of the formation of customary international law, when we have homogenous values, we have more customs in place because everyone knows how to act. In the beginning, customary international law used to be a “Christian, European club” (Questo è così YMCA coded). There wasn’t the need to codify these rules because everyone behaved in that way. From a moment in history, those rules had to open to other scenarios e.g., opium wars and the relationship between Western European countries and China. o Those rules had to adapt to other cultures, religions, and other approaches, not just the European context. This created the transformation of customs, treaties, and values, and new actors started to participate in international relations etc. The states are the beginning of the story. The way we know states is because we talk about their international legal personality, their sovereignty and what it means to be sovereign. - States’ Sovereignty We can look at it from: Internal perspective: - Jurisdiction to prescribe when a state can adopt legislation. - Jurisdiction to adjudicate having judges/courts of law that charge the offender with a crime. - Jurisdiction to enforce There is a system that makes sure that the wrongdoer is brought to justice. Limits to internal sovereignty: e.g., the duty to treat aliens according to External perspective: - They can make their own foreign policy choices. - This isn’t the freedom to do as you please. o There is coexistence and cooperation with other states, that are all on an equal footing. - Your actions find the limit in the other states’ actions and the rules of international law. o Your behaviour needs to be in line with the obligations that come from international law. Limits to external sovereignty: e.g., the The ability to act on the international plane, to make policy choices etc. correspond to their external relations. All this has a bearing on the international legal personality of the state the fact that you can bear rights and duties on the international plane, gives you the quality of having an international legal personality. If you are a state, you have an international legal personality you can be the bearer of rights and duties and can act and interact in the international scene. • States are considered to have the capacity to be the bearers of rights and duties provided that they are “effective” and “independent”: 1. Independent and stable Government. 2. Territory with settled borders (even though there could be uncertainty – e.g., territorial disputes). 3. Permanent population ruled by the Government. - What are the criteria for statehood? The 1933 Montevideo Convention is considered the first point of reference for the criteria of statehood. It was a regional treaty, not a global one. Yet, it was considered as being reflective of customary international law rules because the elements listed have been, because of custom, practice, opinio iuris, and the behaviour of states, confirmed as the necessary elements for statehood. Does this mean that they are completely clear? o A State needs:  Population ,  What about small islands? Are they not considered states? Those small islands are states.  Territory and  Do disputed territories preclude the existence of a state? Does it mean that because of a boundary between two states, they aren’t states?  It depends.  If two states are arguing about the delimitation of a territorial boundary, doesn’t mean that those states aren’t states.  When they made the Montevideo Convention back in the day, they didn’t want it to necessarily be a defined territory.  We have to look at the circumstances. Internal perspective: - Jurisdiction to prescribe when a state can adopt legislation. - Jurisdiction to adjudicate having judges/courts of law that charge the offender with a crime. - Jurisdiction to enforce There is a system that makes sure that the wrongdoer is brought to justice. Limits to internal sovereignty: e.g., the duty to treat aliens according to External perspective: - They can make their own foreign policy choices. - This isn’t the freedom to do as you please. o There is coexistence and cooperation with other states, that are all on an equal footing. - Your actions find the limit in the other states’ actions and the rules of international law. o Your behaviour needs to be in line with the obligations that come from international law. Limits to external sovereignty: e.g., the o The importance of maintaining international peace is stressed. It’s based on freedom, equality, justice, and respect for human rights. o The applicability of the Geneva Convention on International Humanitarian Law is reaffirmed. It concerns the protection of civilians during war. o Very important is the reaffirmation of the rights of Palestinians to self- determination and to have an independent state of Palestine. These rights are said to be inalienable.  Reaffirming its resolution 3236 (XXIX) of 22 November 1974 and all relevant resolutions, including resolution 66/146 of 19 December 2011, reaffirming the right of the Palestinian people to self-determination, including the right to their independent State of Palestine. o The need for withdrawal from Palestinian territory occupied by Israel since 1967 is stressed. o The General Assembly recalls the resolution of 1988 acknowledging the proclamation of the state of Palestine by the Palestinian National Council.  Recalling also its resolution 43/177 of 15 December 1988, by which it, inter alia, acknowledged the proclamation of the State of Palestine by the Palestine National Council on 15 November 1988 and decided that the designation “Palestine” should be used in place of the designation “Palestine Liberation Organization” in the United Nations system, without prejudice to the observer status and functions of the Palestine Liberation Organization within the United Nations system.  The designation “Palestine” should be used in place of the designation “Palestine Liberation Organisation”. o Full Palestinian membership is recognised in “the United Nations Educational, Scientific and Cultural Organization, the Economic and Social Commission for Western Asia and the Group of Asia-Pacific States and that Palestine is also a full member of the League of Arab States, the Movement of Non-Aligned Countries, the Organization of Islamic Cooperation and the Group of 77 and China”. o 132 states, members of the UN, have accorded the recognition of a state of Palestine.  Recognizing also that, to date, 132 States Members of the United Nations have accorded recognition to the State of Palestine. o The principle of inadmissibility of acquisition of territory by force is reaffirmed but it’s not respected. This Resolution was voted by 138 states in favour, with just 9 states being against, among which we find Israel and the US. There were 40 abstentions. Since it was overwhelmingly supported, it was thought that a solution and peace could be achieved and that the two-state plan could be enacted. - An observer state doesn’t have the right to vote. The state is seen as an interested actor, willing to participate. Yet, there is no right to vote this is why it’s an observer state. It’s someone following the situation and observers can speak at specific moments only. - The path towards this recognition was very long. This Resolution was the moment of change when something was different from the understanding of Palestine from the past. The state elements were included in the discussion. It started a new consideration of the status and statehood of Palestine. o Palestine could enter many human rights treaties. o This marked an interesting moment since they were able to accede to multilateral treaties, especially HR treaties. When entering HR treaties, there are committees established to check compliance. The situation is very complicated, and the GA Resolution is just part of a more complicated picture. There has been so much development that Palestine was able to enter the system of the ICC. It presented a declaration of the acceptance of the jurisdiction of the ICC. - Introduction o Since 2019, the International Criminal Court has been pursuing investigations on alleged war crimes in Israel and Palestine from 2014 onwards. o This has raised questions regarding Palestinian statehood and sovereignty, specifically Palestine’s status as an international actor and its ability to subject itself to ICC jurisdiction. o Can Palestine be considered by the ICC a state only for the Rome Statute?  The ICC is an intergovernmental organisation and a tribunal. It prosecutes individuals, not states, for core crime (the most heinous crime committed). It’s not an organ of the UN. It was founded by the 1998 Rome Statute, accepted by most states. It’s based on a multilateral treaty, not a Resolution. - Background o On 29th November 2012, the United Nations General Assembly passed Resolution 67/19, recognising Palestine as a non-member observer. o In a published opinion in August 2014, the ICC Prosecutor said that, because of Palestine's new status, Palestine could now join the Rome Statute. o In December 2014, the assembly of state parties of the ICC recognized Palestine as a "State", without prejudice to any legal or other decisions taken by the court or any other organization. o A declaration was submitted by Palestine on 1st January 2015, dated 31 December 2014, accepting the court's jurisdiction effective 13th June 2014. o Palestine acceded to the Rome Statute on 2nd January 2015, with effect on 1 April 2015, and the ICC Prosecutor accepted Palestine as a state party. o The court did not make a ruling on the legal validity of this decision. o In 2019, ICC Prosecutor Fatou Bensouda produced a report where she stated that she is “satisfied that war crimes have been or are being committed in the West Bank, including East Jerusalem, and the Gaza Strip”. In the same report, the Prosecutor recognises Israel does have mechanisms in place to prosecute war crimes, while Hamas and Palestinian armed groups generally do not; and further recognises a list of war crimes which Israel is accused of committing. This report is instrumental to the investigation she wants to pursue. - Israeli position o In December 2019, Israeli Attorney General Avichai Mandelblit argued that, because Palestine was not a sovereign state, the court had no jurisdiction on the matter. o “The claim that the Palestinians have purported to join the Rome Statute does not meet, nor can it replace, the substantive test requiring criminal jurisdiction to have been delegated to the court by a sovereign state with a defined territory” he said. o The Court and the investigation were further described by Israeli PM Benjamin Netanyahu as “pure antisemitism”. The Israeli position was supported, even with material sanctions against the ICC, by the U.S. - Palestinian position o Palestine declares that it has fulfilled all its obligations in respect to the ICC, and therefore expects all rights acquired by a State Party under the Statute and admits that “the Statute gives no competence to the Court to determine issues of statehood of a State Party”. o Palestine further says that it “joined the Rome Statute as a State within its internationally recognized borders, as defined by the 1949 Armistice Line”, and that “the West Bank, including East Jerusalem, and the Gaza  National liberation movements, qualified in these contexts, are considered factual actors. It acquires importance. It boiled down to the need to have an entity to talk to.  E.g., the national liberation movement of Palestine is considered the factual representative. It’s the entity to talk to when signing agreements, handling of occupied territories, the peace processes etc.  International law recognises national liberation movements when and if they can oppose the occupying state. This event becomes a fact for international law.  It considers that the national liberation movement took power. In these situations, the movements are invited as observers. They are the entities to communicate with because there isn’t a state yet. o With insurgence, the right to self-determination isn’t found. Insurgence is less protected since they don’t have this right.  If they are successful against the state, international law acknowledges it, and the new government is the one recognised by other states/international organisations. For the sake of the stability of relationships, this way of looking at developments and regime changes is adopted. States don’t like regime changes made with the use of force since international law doesn’t tolerate the use of force. If an insurgence movement takes effective control and becomes an effective government while breaching international law, international law takes note of it. States are interested in seeing that the new government isn’t breaching human rights, not whether there was a governement in place. - Independence How should we evaluate the independence of a state? - There should be economic independence. If in need of foreign help, independence might be compromised. - The government shouldn’t be influenced to the point that it can’t make autonomous decisions Puppet states. o Puppet States.  They aren’t independent. They aren’t even considered states. They are completely under the control of other entities. If there’s complete control of the area from a 3rd state, then the controlled state isn’t independent.  E.g., the ECHR described North Cyprus in such a way, as there’s total effective control of the area from Turkey. It’s effective control of the jurisdiction of that area. o Financially insolvent states.  E.g., Greece. o States in exile.  Small island States losing their territory.  They don’t cease to be states. Statehood doesn’t disappear. Even without the element of territory/control of the territory, they still maintain their statehood, as per opinio iuris. It would be unfair to think otherwise.  How do they maintain their prerogatives if they don’t have a territory? o To do so, the idea is that even if the citizens flee the country and are displaced in another state, the state will try to allow the phenomenon of displacement and relocation of the population in it. E.g., New Zealand is changing its constitution for this scope. o The other issue is about statehood. The ILC and ILA have relied on legal fictions. The law operates on legal fictions. As a legal fiction, the states that are losing their territory will still maintain their statehood in the host state. They’ll still maintain their exclusive prerogatives on the sea.  E.g., the continental shelf and the resources derived from the maritime areas are still maintained, even if there isn’t a baseline anymore to measure the nautical miles. It’s like the limits of the maritime limitations are frozen They remain the way they were when the territory was there, as a legal fiction. In the past, if the territory was modified because of a natural event (earthquake), the Secretary- General, concerning the Law of the Sea Convention, had to be notified of this change The baseline changed, and the calculation of the continental shelf and exclusive economic zone had to be changed as well. The concept of ambulatory baseline was accepted.  The Law of the Sea Convention didn’t say anything about ambulatory or fixed baseline. But customary international law shows that states accepted an ambulatory basis it could change because of a geographical change of the territory. With the discussion of the rise of the sea level, they said that if the island disappears, it’s like the baseline is frozen and remains as it were as if the island still exists. The government still benefits from the area of the sea they had before the island’s disappearance. These are still states: statehood remains. It would be unfair to say otherwise: - A population and government are being displaced. Statehood remains. - Recognition o This is the most important element to look at for the external relations of a state. o It’s a unilateral act, governed by good faith and estoppel (i.e., A state can’t take back what it’s done or said).  States don’t always respect this. Most of the time, states DO go back on what they’ve said and done. - Is recognition a necessary requirement for there to be statehood? No. Yet, what if no one recognises you? Recognition is mainly symbolic. It’s not a requirement of statehood. There are 2 theories: - Constitutive theory : a state exists only insofar as it is recognised by other states. - Declaratory theory : Art.3 of the Montevideo Convention states that “The political existence of the state is independent of recognition by the other states”. o This is known as the declarative theory of statehood. o This theory had the most success. Recognition is the most significant vehicle/tool that proves that you are active on the international scene and can entertain relationships with others. Yet, it’s not a constitutive element. If you don’t have recognition, it doesn’t mean you aren’t a state. Thus, the declaratory theory was established Recognition was a fundamental and vital element for effectiveness in the international arena. You must be recognised by To be a UN member, you have to be a state and recognised as such. The membership of the UN, from the perspective of the states of the EU, is made by looking at the coherence between what is established in the organisation of the EU and what is decided at the UN level. There can’t be incoherence between the 2 levels. The EU cannot become a member of the UN. From the principle of loyal participation as a member of the EU, you’re reassuring the EU institutions that you won’t be bound by UN obligations that contrast with the EU level. o There should be no friction between the 2 levels. Yet, there have been some frictions The Kadi case. Art.4 UN Charter o 1. Membership in the United Nations is open to all other peace-loving states which accept the obligations contained in the present Charter and, in the judgment of the Organization, are able and willing to carry out these obligations. o 2. The admission of any such state to membership in the United Nations will be effected by a decision of the General Assembly upon the recommendation of the Security Council. Thus, UN membership isn’t a necessary element. E.g., China. o PRC was admitted as a member of the UN only in 1971 (GA resolution with 76 votes in favour, against 35, 17 abstentions). o We cannot say that from 1949 to 1971 it was not a State as it was already acting as such (it had already entered international treaties etc.). o So, admission to the UN can be an indicator of statehood. The same thing can be said for Taiwan. o The extinction of the international legal personality of States Processes of extinction: - By union (North Yemen and South Yemen). - By dismemberment (Czechoslovakia). - By incorporation (German re-union: German Democratic Republic and the Federal Republic of Germany). Legally, if you meet all the requirements of statehood, you’re a state with an international legal personality You have rights and obligations stemming from international law, and you are seen as an actor operating on the international scene. You become a subject of international law. - International organisations What are they? Why were they established? Every IO has a function/mandate There is a functional element of every IO. Even the international legal personality is functional. In the case of IOs, the international legal personality is diminished compared to the one of the states. This is because IOs are established with a mandate/function. The functional element is part of the story of IOs. Their story started at the beginning of the 20th century. In that period, states were more stable so that they could co-exist and cooperate. The first international organisations were about River Commissions to deal with issues on navigational rights and checking the pollution of rivers. They are one of the first examples of embryonic international organisations for the management of a common and shared resource How to manage the river better, how to check the quality of the water, the navigational rights etc. The river commissions go back to the 1870s. The 20th century is when the IOs that we know started to exist. - The League of Nations (1920), based on Wilson’s 14 points. - It’s the UN’s predecessor. - It couldn’t function. - It was an international organisation, still of an embryonic nature, not dealing with sectorial areas. It had to do with high politics Maintenance of peace and security. - The League of Nations Covenant’s aim was to maintain world peace. - From this moment, IOs dealt with a higher level of discussions: not just sectorial issues but global ones. - The League and its Covenant allowed states to withdraw from it. If you look at the UN Charter, there is no withdrawal clause. - This means that within the UN there was much more consensus at the time. They didn’t consider that states could withdraw from the UN, especially after WWII. - When the UN was established, the aspiration was that no other state would ever come up with the idea to withdraw from the UN. The UN is the moment in history in which we find the foundational constitutional provisions of the international legal order. Although there is no constitutional charter of the international legal order, it contains the most important principles that are also customary international law principles, not just treaty provisions.  The most important one is the prohibition of the use of force. From the legal perspective, the functional element is the beginning of the story of IOs. - The role of IOs in promoting the development of international law. - They were created by States 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 the conclusion of treaties or official missions by staff abroad. o This relates to how much the new entity is integrated concerning the founding states. The UN doesn’t have the same level of integration as the EU. Sometimes states don’t want to implement the resolutions of the SC, or you have to wait for consensus. At the EU level, there is a decision-making process with independent Union institutions. - If the IO has independent financial resources, there is a high level of integration. - The 1986 Convention on the Law of the Treaties between IOs and IOs and States. It’s not yet in force. This mirrors the Law of Treaties concerning states. - ILC codification on the responsibility of international organizations: 2011 Draft Articles. There is one case that points to the functional legal personality and that teaches us how to treat IOs from the perspective of their functions. - The 1948 Reparations for Injuries case. - 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. Who was entitled to start a claim for reparation for the killing: the State of nationality of the agent (Sweden) or the UN? - The 1949 ICJ advisory opinion in Reparation for Injuries Suffered in the Service of the United Nations 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 o When the will becomes independent of the organisation, there’s such a level of integration and you’re delegating a lot of powers. o At the international law level, this happens less frequently: states want to maintain their control. Even if they’re okay with establishing institutions, be it the SC, the GA, etc., states still want control over them.  Members of the SC don’t want the Resolutions to be considered legislative. They call the administrative since they want to control them: the resolutions of the SC, depending on the wording and terminology, have to be interpreted. Plus, they’re not binding. Even if they are, states don’t follow them completely. There are no sanctions or mechanisms of enforcement for the breach.  This is different from the EU, where there is a mechanism of enforcement. The EU is an international organisation. It’s interesting to see the differences. Even if we locate them within the broader context of the main features of the international legal order, they still have and maintain prerogatives, including those that weren’t even considered in the original founding instrument for their establishment, e.g., the UN Charter. Typically, IOs are organisations of states. There’s an intergovernmental way to cooperate, established under the provisions of a treaty. The treaty we’re looking at in this case is the UN Charter. In it, some prerogatives aren’t written but are implicitly considered as prerogatives of the organisation. - This creature is a new subject of international law: it’s a composition of states, with limits given by the states. - IOs have a functional personality. It’s not a full international legal personality like the one states have, but it’s a limited international legal personality, depending on the powers/limits/mandates entrusted to them by states. - In this case, who’s entitled to ask for damages? The ICJ clarified that when the UN claims redress for a breach of those obligations The UN employee was murdered while being in service of the UN. The UN was able to claim damages. When the organisation is invoking its right, the right that the obligation due to it is respected, you understand that you’re an independent subject when you’re the addressee of IOs. - The other state, Israel, owed protection to Count Bernadotte to the UN, not Sweden. o This is why the UN was claiming damages for the murder of Count Bernadotte. o It follows from the international legal personality, and it follows from this new entity that has been created as a different subject of international law. This is just the end of the case. It wasn’t settled as it was just an advisory opinion. Its main aim was to clarify the position of the IO. - Q: One of the consequences of having an international legal personality is that you become an independent subject of international law. Being an independent subject gives you prerogatives. In this example, it’s to claim for redress and damages concerning one of the employees. - This also applies to states as subjects. o When states sue other states for a breach of international law/Human rights of its citizen, they’re asking for damages in their own right. The IO does the same thing. o This couldn’t go before the newly formed ICJ since we aren’t in the presence of 2 states. Yet, claims can be also brought in diplomatic terms. o State responsibility or IO responsibility, when there is a breach, also happens outside the court of law. o When they do so, they’re invoking their right to claim damages in their interest. The parameter of those damages is based on the damages suffered by the individual. It’s like when a state or IO is suing another state for redress, it’s acting in its interest since the other entity hasn’t respected the international HR standards that work at an interstate level, even if the beneficiaries of HR are individuals.  They invoke their rights because the obligations of HR protection are formulated at an interstate level. In conclusion: - The ICJ attributed to the UN international legal personality of a kind that falls short of the “fully fledged” attached to States.  There’s a functional legal personality. The IO has limited prerogatives, established by the MSs. - IOs have legal personality proportional to the rights and duties strictly related to their statutory functions on a case-by-case basis. - Art. 104 UN Charter : “The Organization shall enjoy in the territory of each of its Members such legal capacity as may be necessary for the exercise of its functions and the fulfilment of its purposes.” o “The legal capacity as may be necessary” There are different HQs of the UN, with different needs. As an international legal person, an IO, to be able to operate, should also be considered a legal person within the domestic order of wherever the HQs are located, and have certain rights that correspond to legal persons within that domestic order. E.g., the ownership of property. o The HQs agreements are undertaken between the host state and the IO. These are specific contracts organised on the international law level but also include private law contracts. We have to look at the independent will of the entity To what extent are you creating an autonomous creature, different from the MSs? These are elements to look for: - The autonomy of IOs intensifies when: o When the IO operates through bodies made up of “individuals sitting in their personal capacity”. o When the organs of the IO are allowed to adopt binding acts, especially if adopted through a majority vote. o When the IO has its financial resources not paid by the MSs. o When the IO has a proper legal order. o When the IO also includes a body that represents the peoples of the MSs.  EU level: there’s the Parliament, representing the highest level of autonomy. Its members are elected directly by EU citizens. Let’s clarify a few things on IOs. Even with this test of the level of autonomy, there’s such a variety of entities at the international law level that it’s even difficult to classify them. Some entities see themselves as IOs. E.g., On the news, the COPs (Conference of the Parties. The Parties are the states members of the multilateral treaties) are mentioned. What are they? Are they IOs? Within these multilateral treaties, it’s normal that subsidiary bodies are established, such as these COPs (or MOPs). These COPs, since they are composed of state members, claim to be IOs since they look like them. There’s a line of interpretation that considers these COPs as IOs. The answer is probably in the negative. - COPs/MOPs are institutional bodies created within multilateral agreements. Normally, these treaties establish subsidiary bodies, including for the implementation of the provisions of the convention. - Does it create individual rights? o What’s interesting about the judgement is that international treaties, other than HR instruments, may confer enforceable rights on individuals. o Individuals are the focus if they are citizens of the state. o Via custom, they built on the individual rights narrative surrounding the role of the individual in international law. - The ICJ’s findings : o The Court recognized that the VCCR not only provided for the rights of States concerning 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”.  This led to a line of argument with which the building of a role for the individual was starting. It’s a discussion that hasn’t ended. o 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”.  This judgment was objected to by the US. They rejected the prominence of the individual right. For them, the classic interpretation involved just a state prerogative. o 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. Our textbook has this position: • The 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. - We are moving from a classic situation of a diplomatic protection theory to an individual rights theory. There are 2 opposing views, and Klabbers suggests reconciling them. - Then, we’ve seen the prominence of the role of the individuals in the principle of self-determination (e.g., situations arising out of decolonisation. They are entitled to protection). o It includes the right of a people of an existing State to choose freely their political system and to pursue their own economic, social, and cultural development. - The right of action of individuals before international human rights tribunals (European Court of Human Rights, Inter-American Court of Human Rights). - The right of action of private investors before ICSID arbitral tribunals. Diplomatic protection: o The classical institutions that could follow from the violation of the rules regarding the treatment of aliens. o The state of nationality of the alien invokes the responsibility of the territorial State. o The state of nationality has discretion as to whether to invoke it or not. o Procedural conditions: link of citizenship and previous exhaustion of domestic remedies. After WWII: • Progressive recognition of rights for humans (human rights) – even though already from the 19th century there were rules about the abolition of slavery and protection of minorities. • Delineation of international crimes committed by individuals (ICC). The doctrine of individuals as beneficiaries of international human rights obligations: – While the substantive and procedural rules of international human rights law benefit individuals (material beneficiaries), these rules are owed towards all the other Parties of a given treaty (erga omnes partes obligations) or to the international community as a whole (erga omnes obligations). – States are still the primary “recipients” of the rights deriving from human rights rules. – The individual and people as mere beneficiaries of international rules imposing obligations upon States. Different doctrine: • The individual and people as addressees of actionable rights. • They can start a proceeding before the ECtHR. • They cannot commit international crimes (ICC). Lesson 18 27/10/23 - NGOs o This is a more difficult discussion. If with individuals we have extra grounds to argue in favour of them being subjects of international law, with NGOs and companies it’s much more difficult to argue that they are subjects of international law. They aren’t. o However, certain elements describe their importance and important role in the international arena. Yet, this doesn’t give them a fully- fledged legal personality, as in the case of states, or a functional legal personality, as in the case of IOs.  One of them is the amicus curiae. This is an interesting role to be played in influencing, when they want to be influenced, the courts. This happens quite often depending on the rules of procedure of the courts/tribunals. - E.g., the ECtHR welcomes amici curiae, as NGOs, individuals, and professors. Usually, it’s an association or NGO presenting their expertise.  They have a more formal role, a consultation role, at the ECOSOC level. - Within the UN machinery, under Art. 71 UN Charter, NGOs can formally participate in the meetings of the Economic and Social Council (ECOSOC). They enjoy consultative status, which may be general, special, or ad hoc. - Just because they’re participating in the UN system doesn’t mean that they are acquiring a formal status.  Specific role in the elaboration of multilateral conventions (Geneva Conventions).  The importance of NGOs’ lobbying activities: the so-called “corridors’ diplomacy”.  In terms of the relevance of international law, they influence opinio iuris and practice. This is codified by the ILC in the Draft Conclusions of the identification of - The claim of one state has been clearly opposed by the other. The Gambia v. Myanmar case - There is the prima facie jurisdiction analysis on the political context behind the case. o Existence of a dispute relating to the interpretation, application or fulfilment of the Genocide Convention.  It’s a specific and dedicated paragraph of the initial phase of the case. - This was the preliminary phase in which Gambia was requiring provisional measures. E.g., in the case of genocide, there might be an order by the ICJ obliging the state not to destroy official documents that might be used as proof of the intention to target a specific minority within the state, as the crime of genocide entails. - One of the first requests is to stop the genocide, followed by an order, which is legally binding, by the ICJ to have the possibility to show evidence of the genocide. o E.g., Gambia was requesting the order concerning the fact that Myanmar “shall not destroy or render inaccessible any evidence related to the event described in the application”. The ICJ had to oblige Myanmar to keep the files. If they didn’t, there was a breach of the order by the ICJ. In these types of cases, the collection of proof is key to establishing the real intention of the state. o We shouldn’t think that in international law is typically relevant to have an internationally wrongful act. This is an exception since genocide is a special crime that requires the subjective element of the dolus, the intention to kill a specific group of people. It resembles domestic criminal law, where dolus is more relevant. In international law, the relevance of the subjective element for the breach of a violation is the exception. The clearest example is the crime of genocide. The element of mens rea becomes prominent, but it’s the exception. We’re searching for the intention of the head of state. - We’ll look at para.2: Existence of a dispute relating to the interpretation, application or fulfilment of the Genocide Convention. o How did they find the opposition? How is it expressed? Article IX of the Genocide Convention is the one on jurisdiction (re: reservations): the ICJ’s jurisdiction is conditioned by the existence of a dispute. 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.  The jurisdictional provision. Before, they had to establish if there was a dispute. The dispute was on the fulfilment and application of the Convention: the claimant is arguing that there was a breach of the Convention. Every time the ICJ pronounces something, they go back to their previous cases. They don’t refer to other tribunals and courts. International tribunals are sceptical about having cross-fertilisation: the ICJ isn’t likely to look at similar cases resolved by other tribunals to come up with its solution. A dispute between States exists where they hold clearly opposite views concerning the question of the performance or non-performance of certain international obligations. This is followed by all the references in which a similar statement has been made. The claim of one party must be “positively opposed” by the other. Since The Gambia has invoked as a basis of the Court’s jurisdiction the compromissory clause in an international convention, the Court must ascertain whether the acts complained of by the Applicant are capable of falling within the provisions of that instrument and whether, as a consequence, the dispute is one which the Court has jurisdiction ratione materiae to entertain . Article IX is also called the compromissory clause, other than the jurisdictional clause. - Myanmar stated that Gambia was acting as a proxy of other interested states, and not as a state by itself. This was a problem concerning the way the ICJ works: the state claiming to present the interests of the association wasn’t in line with the procedural parts of the ICJ. This wasn’t a problem for the ICJ since Gambia was acting for itself, not other states. Gambia had a personal interest and thus could be an eligible actor. - Myanmar said that because it didn’t respond to the application that was the proof that it didn’t agree to enter a dispute. o For the ICJ and in international law, non-reaction/silence becomes relevant when a certain action is expected. There was the expectation to answer the Note Verbale. If there isn’t an answer, you are, in a way, objecting to it. This is how the opposition has been framed. o The gravity of the situation asks for a response. This was declared even in the GA. - The fact-finding mission is established to find proof. It’s used by the ICJ to establish the existence of a dispute The fact that Myanmar is calling it biased indicates the existence of a dispute. o These missions are especially used for dispute settlement procedures. Lesson 19 02/11/23 - Environmental litigation Min.5 Lesson 20 03/11/23 - Continuing with dispute settlement We need to look at the topic from the basic elements, the pillars of dispute settlement procedures in international law. - Going back to the existence of a legal dispute, which we have learned concerning the opposition to a claim put forward by a state. The existence of the opposition to the claim and the elements to understand the existence are difficult to assess by the court. Is a state opposing a claim? Based on the elements analysed, the ICJ will come up with the conclusion that there is a legal dispute, which doesn’t mean that there is also a political dispute surrounding the legal dispute. Normally, the legal dispute is intertwined with the political dispute. A simple disagreement becomes a fully-fledged legal disagreement. Another provision mentioned is Art.33 UN Charter, which is also part of the beginning of dispute settlement. Under this article, states have: – The obligation (shall) to seek a peaceful solution to any international dispute likely to endanger the maintenance of international peace and security.  The Charter uses “shall”. – through “negotiation, enquiry, mediation, conciliation, arbitration, judicial settlement, resort to regional agencies or arrangements, or other peaceful means of their own choice”. The fact that there is this provision in the UN Charter, which includes the verb “shall”, does it tell us that there is an obligation, at the international law level, to solve/overcome their differences before the judge/mediation/conciliation? - In combination with Art.33, we’ll look at Art.2(3):  All Members shall settle their international disputes by peaceful means in such a manner that international peace and security, and justice, are not endangered. - No, there isn’t an obligation to necessarily solve the dispute. The obligation coming from Art.33+Art.2(3) doesn’t have to do with the necessity of solving the dispute. The obligation is triggered when states, that have decided to settle their dispute, have to do so with peaceful means. This is what the for the automatic application of a certain method of delimitation in the absence of agreement; they are under an obligation so to conduct themselves that the negotiations are meaningful, which will not be the case when either of them insists upon its own position without contemplating any modification of it. o Good offices.  It’s lighter compared to mediation while looking at the intervention of a third party, which isn’t a judge. It could be an individual or a state. In good offices, it’s just to put the 2 parties into communication. The third party is just trying to put the 2 states in a room and have them discuss, but the third party doesn’t enter the content of the discussion. The third party tries to promote communication in hopes that the parties find a solution. o Mediation.  Is more than just putting the parties. The third party participates in the discussion and tries to mediate to facilitate the negotiations.  E.g., the mediation made by Algeria after the Hostage crisis case. - In Tehran, Islamic students put under siege the US embassy. The personnel of the embassy were held hostage for more than 1 year. - This is studied for a matter of attribution: when does the conduct of ordinary people become the conduct of the state? - After the ICJ pronouncement, a solution was made thanks to the mediation of the Algerian government, seen as independent by the 2 parties to the case. o Commission of enquiry.  Independent experts are asked to clarify certain terms of the dispute: they analyse the factual and technical elements. The outcomes are not binding, but authoritative terms of reference. - Ukraine v. Russia . 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 identify, where possible, those individuals and entities responsible for violations or abuses of human rights or violations of international humanitarian law, or other related crimes, in Ukraine.  The Human Rights Council is an intergovernmental structure. It meets in Geneva. It’s charged with the protection of human rights. o Conciliation commission.  If the commission also addresses the legal arguments advanced by the parties and suggests a (non-binding) solution as to the merits, it is Conciliation. - The intervention of the Security Council . o The SC could also autonomously tell the parties (recommendations) to use certain procedures: Art.33(2) UN Charter. o 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 of their choice, they shall refer it to the SC (not used much). o The SC could itself perform conciliation entering the merits of the dispute and recommending the terms of settlement of the dispute as it may consider appropriate: Art. 37(2) UN Charter (non-binding). - Arbitral/judicial means . There are 3 ways to see the combination of the adjudicative means of dispute settlement. This is everything we have in place in terms of courts and tribunals. Every international court/tribunal undergoes one of these 3 scenarios/options. It wouldn’t be an international law procedure if it was a private actor v. private actor. For it to be an international adjudication or arbitral procedure, we might either have: o State v. State .  interstate claims  This is classic international law. It’s classic even if it concerns individuals and the breach of human rights, in which the state of nationality takes the case brings the case and goes against the other state and asks for the reparation of damages for its interest and on behalf of the individual whose human rights have been violated.  Even the ECtHR has an interstate jurisdiction. o Private actor v. State .  This has been an evolution of the role of the individual in international law. It has been seen as the prominent role of the individual. The fact that they can go to the judge directly, without waiting for the state of nationality to defend them, has been a major evolution from the classic interstate dispute.  Private actors aren’t only individuals but also companies  Under the ICSID tribunals. (For NGOs it depends).  You have to explore and exhaust the domestic remedies. It’s the fact that the individual tried to do something and explore the remedied.  The beneficiaries of the international norms are the individuals. o International community v. private individual .  This case would go before the ICC, the International Criminal Court. This is because of the public prosecutor. The interest of the international community is encapsulated in the action of the public prosecutor: when he starts an investigation into potential war crimes being committed in occupied territories. It’s the interest of the whole community of states, concerning certain core crimes. Therefore, the combination changes: the interest of the international community in seeing the rules being respected by all states against the one, in a state, holding the power, i.e., controlling the decisions.  The individual isn’t the beneficiary of an international norm, but the individual has to respect the international norm. o This is contentious jurisdiction. The issue at hand, for a judge, is to establish if there was a breach of a rule. Lesson 21 08/11/23 Let’s go on. We stopped at the recipe for international courts and tribunals. Every one of them can be linked to one of those scenarios: