"International law" by Shaw book summary + class notes + case study for IRGA, International Law semester 1, Appunti di Diritto Internazionale

Scarica "International law" by Shaw book summary + class notes + case study for IRGA, International Law semester 1 e più Appunti in PDF di Diritto Internazionale solo su Docsity! International Law Prof. Mariangela La Manna International Relations and Global Affairs at Università Cattolica del Sacro Cuore, Milano Book: International Law (VIII edition, M. Shaw) All chapter summaries and class notes by Francesca Sardi International Law • International law is a set of rules made by states in order to regulate the legal relations between them. • Int'l law began in 1648 with the Westphalian Treaty (which also marks the birth of modern states) • Int'l law speaks to states, the master of the legal order *horizontal nature of power in the system of international law *the legislative, judicial and executive functions are DECENTRALIZED Critics of int'l law: • Rudimental, basic • Full of contradictions between domestic and int'l law –> domestic law prevails • Law abiding and law making in the context of int'l legislature is voluntary • Important provisions of int'l law are often and commonly violated • counter-point: the violation of a law does not diminish the importance of the law; it doesn't jeopardize its label as a body of law Subjects of International Law Legal personality • In every legal order there is an authority and the subjects of the legal order • A legal person is one possessing the capacity to have and to maintain certain rights, and subject to perform specific duties • Legal personality involves the examination of certain concepts within the law such as status, capacity, competence, as well as the nature and extent of particular rights and duties • The status of a particular entity may well be determinative of certain powers and obligations • The capacity will link together the status of a person with particular rights and duties • Subjects • Comply to rules • Follow and don’t lead • Are passive actors • Have no discretion *the law is sovereign, and people are subject to it. • Subjects of international law are many: states, international organizations, regional organizations, non-govt organizations, public companies, private companies, individuals, and groups engaging in terrorism • International personality is participation plus some form of community acceptance • Groups, entities and individuals not constituting states are referred to as non-state actions • International legal personality: the legal personality enjoyed under int'l law allows states to enter into relations with one another • In the international legal order there is not law enforcing force/body. States make, abide to, break the laws as they please • NO centralized judicial and legislative power • NO cohesive implementation • Based on self States • In int’l law, states have the power/authority to make the law but also have the duty to respect the law • Traits of a state include: • Government • Territory • Population • Recognition from other states is significant but not necessary • Recognition: unilateral agreement by one entity declaring to enter into relations with another entity • The capacity to enter relations with other states in an aspect of the existence of the entity in question as well as an indication of the importance attached to recognition by other countries. • The essence of such capacity is independence, which is crucial to statehood. ■ It is a formal statement that the state is subject to no other sovereignty and is unaffected wither by factual dependence upon other states or by submission to the rules of international law ■ An independent state is one with (formal criteria) • Its own legal order, • A founding charter • Internal sovereignty: purely factual in nature, the capacity to enforce one's own legal order vis a vis one's own subjects, vis a vis one's own territory (capacity to unilaterally penetrate the individual's sphere) *the effectiveness of a state makes it independent. ■ Case of exception: Kosovo • It declared its independence on 17/02/2008 and accepted the obligation for Kosovo under the Ahtisaari Plan – obligations included human rights and decentralization guarantees. An international presence was established and took form of an International Civilian Representative (ICR) which would have the ability to annul decisions or laws adopted by Kosovo authorities and sanction or remove public officials whose actions were inconsistent with the Settlement terms. There is also an international military presence led by NATO • Self-determination has two aspects, internal and external. • Internal self-determination is the right of the people of a state to govern themselves without outside interference. The right of a people to participate on a non-discriminatory basis in the govt of the State, freedom to determine the organizational issues within the state. *purely domestic and internal matter • External self-determination is the right of peoples to determine their own political status and to be free of alien domination, including formation of their own independent state. addresses people under colonial power, racist regimes and military power • In the context of the international legal order, self-determination is made up of only the external self-determination. *benefitting from self-determination means to be in the position to look after oneself, can't make own choices consciously, and be independent and expected to make its own choices. To freely choose and to suffer the consequences/take responsibility for his/her actions. • Self-determination is a principle of international law • One of the most important UN principles (Art I Par II of the UN Charter) 1 • States take care of only self interest • IOs carry out their function with the will of states *only exclusively by the will of states "an instrument in the hand of states" • Flourish as so far as states have a need for it • Derived from states • Every IO is the answer to one specific need of states • Common orders with a distinct personality from member states and capability of carrying out int’l relations independently (without member states permission) –> autonomous: making one's personal choices • Specialization: every int’l organization will be created bearing in mind one or more functions/never as general as states' power • The subjectivity/personality of IOs is octroyer (benevolently granted) • Derived • Limited • functional Historical information • First forms of int’l organizations were answers to technical issues & practical necessity/common interest • The League of Nations was a tentative of an IO pursuing the maintenance of peace between states • A qualitative (and quantitative) leap from previous int’l organizations • The UN is wide in membership and in goals/scope • Creation of UN with the San Francisco charter in 1948 • Un also created specialized agencies • IOs then "mushroomed" • Strengthened autonomy and legal status Sources of International Law - Legal order is a body of rules with rights and duties and provisions, whose infringement will produce legal sanctions. - The subjects of the domestic legal order to participate directly in the making of the laws (representative democracy) - Subjects are bound to comply with the provisions of the law - Since states are the masters of the int'l legal order (make, abide, break and change laws) & creators and addressees - In the int'l legal order there is no hierarchy in the sources of the law - Art 38 of the Statute of the ICJ • The court, whose function is to decide in accordance with international law such disputes as are submitted to it, shall apply: • International conventions whether general or particular, establishing rules expressly recognized by the contesting states • International custom, as evidence of a general practice accepted as law • The general principles of law recognized by civilized nations • Subject to the provisions of art 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 • Scope is to give a toolbox, the applicable law in performing its task *these are all the sources on int'l law, the framework Treaties • According to article 38: ‘international conventions, whether general or particular, establishing rules expressly recognized by the contracting states’ • Treaties can be known as: conventions, international agreements, pacts, general acts, charters, statutes • Treaties are written agreements whereby the states participating bind themselves legally to act in a particular way or set up particular relations between themselves • Treaty law is particular since it only binds parties to it: states expressively give consent to be bound by the treaty's provisions. • Law making treaties are agreements whereby states elaborate their perception of international law upon any given topic of establish new rules which are to guide them for future in their international conduct (ie: Genocide Convention) Vienna Convention on the Law of Treaties (VCLT), of May 23rd 1969, to be applied from 1980 • “A treaty of treaties” • Widespread instrument, an authoritative guide regarding the formation and effects of treaties, ratified by almost all states of the international community (France did not ratify the VCLT) • Fundamental tool/instrument for reference as far as the law of treaties is concerned • Combination of efforts of the ILC (International Law Commission) • ILC is a technical body to which the UNGA delegated some of its functions to – not a political body – it is made of experts of int’l law. It pursues the task is of codification and progressive development (statutory task) of int’l law. ■ No normative function in codifying, strictly technical. Codifying includes clarity, structure, order –> aim of codification is the result of an authoritative list that combines all laws including customary law that is non-written in nature and the usefulness is order and certainty 1 ■ The ILC will adapt draft articles which are at the same time the codification of customary int’l law and proposals for its further progressive development *dual task –> those instruments may be the object of further consent on the part of states, or object of a convention ■ ILC codification of customary is already binding, proposals are not binding unless and until states ratify that part ■ Writing down a customary rule doesn't add a binding force, since it is already binding • Scope of this convention is stated in Art 2 • Art 2, point 1a, gives a very flexible and informal definition of a treaty ■ Treaty (def): the expression of consent between two or more parties over regulation (rights and obligations) of a specific matter, discipline, issue, etc • Many labels and denominations (eg. charter, agreement, statute, protocol, covenant, etc.) but one notion: treaty. • Does not specify treaties between states and IOs (these are included in another document) • Treaty law is particular, it concerns to the parties to it, the entities who have agreed upon the text of the treaty/having assumed its binding obligations. • Two possible procedures to agree on a set of obligation • Solemn procedure, consent by ratification (art 14) ■ Requires further steps to be taken, the negotiated and signed text will be transmitted to national authorities for more review and for public opinion to be engaged. Ratification=validation. ■ It is the executives who deal with int'l relations, individuals with plenipotentiary powers – they represent the majority of the population (the govt is the expression of majority within the parliament) • Simplified procedure, consent expressed by signature ■ The will of states is enough ■ Commonly resorted to, it's quick and simple and doesn't risk being paralyzed ■ Used for technical treaties, or treaties with a specified scope –> plenipotentiaries do all the work. *procedure is the same, but in the case of the solemn procedure, states will take all necessary steps to "go the distance" State Practice • State practice is how states behave and it thus forms the basis of customary Law • State practice includes: • Administrative Acts, • Legislation Decisions of domestic courts • activities on the international stage for treaty-making • Diplomatic practice: bilateral or multilateral • International case-law • Domestic case-law • Conventional practice • Legislative practice • It is important to note that a state is not a living entity, but it consists of governmental departments, thousands of officials, and state activity is spread throughout a whole range of national organs Art 53 of the VCLT about treaties conflicting with a peremptory norm of general international law (jus cogens), it claims • A treaty conflicting with a peremptory norm is void Art 64: emergence of a new peremptory norm of general int'l law • If a new peremptory norm of general int'l law emerges, any existing treaty which is in conflict with that norm becomes void and terminates *jus cogens lacks a criteria and a description of what it is, there is no list of jus cogens Jus Cogens are customary norms • non derogable *derogable only if there is a peremptory norm • Provisions of general int'l law • Customary rules that are believed to be peremptory in nature • Not only binding but their special feature must be acknowledged by states (double opinio juris requirement) • 3 main jus cogens provisions • Prohibitions of crimes against humanity, eg genocide • Prohibition of the use of force • Self-determination of peoples • Breaching of such provisions leads to greater legal sanctions Art 103 in UN Charter helps to further identify the jus Cogens provisions • Primacy of obligations under the un charter over other conflicting treaty obligations • Establishes that should a conflict of a provision under the charter and under another treaty arise –> charter takes precedence Judicial Decisions • Have no binding force, except as between the parties and in the respect of the case under consideration 1 Law of State Responsibility State responsibility is a fundamental principle arising out of the nature of the international legal system and the doctrines of state sovereignty and equality of states. • Whenever one states commits an internationally unlawful act against another state, international responsibility is established between the two • The focus is concerned with the procedural and other consequences flowing from a breach of a substantive rule of international law • State responsibility covers many fields • It includes unlawful acts or omissions directly committed by the state and directly affecting other states (eg. The breach of a treaty, the violation of the territory of another state, or damage to state property) • International responsibility establishes the relationship between the author of the conduct and the victim of the conduct following the wrongful act. • Responsibility is a relationship, the peculiar set of rules which is in place from the moment the int'l wrongful act is committed. • A bond between state A and state B (wrongdoer and the "injured" state) • The content of responsibility is represented by the requirements and consequences • State responsibility operates via a set of fixed consequences under the Draft Articles • A state cannot be held responsible for criminal responsibility. • State responsibility has nothing to do with primary rules and norms prescribing a conduct – responsibility does not assume as the benchmark the violated norm but only refers to secondary rules, those norms that establish international responsibility and only address the prerequisites and consequences of primary rules. • No structure to coerce a state to do something, or to enforce state responsibility The International Law Commission (ILC) worked extensively since 1975 on this topic and in 2001 the Draft Articles on State Responsibility were adopted. Art 1 claims that every internally wrongful act of a state entails responsibility Art 2 provides that there is an internationally wrongful act of a state when conduct consisting of an action or omission is attributable to the state under international law and consists of a breach of an international obligation of the state. • A state assisting another state to commit an internationally wrongful act will also be responsible • State responsibility may coexist with individual responsibility. The two are not mutually exclusive Objective responsibility • Liability of the states is strict • The state will be responsible in internal law to the state suffering the damage irrespective of good or bad faith Subjective responsibility • A theory which puts emphasis on an element of international or negligent conduct on the part of the person concerned is necessary before his state can be rendered liable for any injury caused *The Commentary to the ILC Articles emphasized that the Articles to not take a definitive position, and the standards of objectiveness or subjectivity vary from one context to the next depending on the term of the primary obligation in question. Attribution The state as an abstract legal entity cannot “act” itself. It can only do so through authorized officials and representatives *the state is not responsible under international law for all acts performed by its nationals Art 4 provides that the conduct of any state organ (including any person or entity having that status in accordance with the internal law of the state) shall be considered as an act of the state concerned under international law where the organ exercises legislative, judicial, or executive functions, whatever position it holds in the organization in the state and whatever character – covers units and subunits within a state. Art 5 notes that the conduct of a person or of an entity not an organ of the state but empowered by the law of that state to exercise the elements of governmental authority must be considered an act of the state, provided the person or entity is acting in that capacity in the particular instance. Art 6 specifies that the conduct of a state organ place at the disposal of another state shall be considered as an act of the former state under international law, if that organ was acting in the exercise of the govt authority of the former state • Effective control vs overall control • Effective control: a link can be found for the involvement of govt authority (eg. Nicaragua and US involvement case) • Overall control: influence and broader control with planning and not only carrying out. eg Scorpion military group in ex-Yugoslavia, ICTY claimed Serbia's president Tadić responsible for overall control vs ICJ (2007) claimed there was no effective control by Serbia –> ICJ's decision is due to the nature of the inter-state feature vs ICTY only individuals can appear before the court since states have no criminal responsibility Ultra vires acts –> Lit. “beyond one’s legal power or authority” An unlawful act may be imputed to the state even where it was beyond the legal capacity of the official involved Art 7 states that the conduct of an organ or person or entity empowered to exercise governmental authority shall be considered an act of the state if acting in that capacity, even if it exceeds its authority or contravenes instructions –> this article highlights the absolute rule of liability where one not limited by reference to the apparent exercise of authority State control Articles 8 and 9 define state control and state responsibility Art 8 claims that the conduct of a personal is considered an act of state if the person is acting on the instructions of, or under the direct control of, that state in carrying out the conduct. Art 9 states the conduct of a person shall be considered an act of a State if the person is in fact exercising elements of the governmental authority in the absence or default of the official authorities and in circumstances such as to call for the exercise of those elements of authority 1 Art 44 specifies the nationality of claims: nationality is the link between the individual and his/her state as regards particular benefits and obligations Diplomatic protection stems from the treatment by a state of foreign nationals –> it was originally limited to alleged violations of the minimum standard of treatment of aliens, has now widened to include internationally guaranteed human rights. A state is under a duty to protect its nationals and it may take up their claims against other states, yet under international law there is no duty for states to provide diplomatic protection for their nationals abroad By taking up an individual’s case and resorting to diplomatic action or international judicial proceedings on his behalf, a state is asserting its own rights (the rights to ensure the respect for the rules of international law) The principle of nationality arises since state may only exercise diplomatic protection on behalf of a person (natural or legal) who has a nationality at the date of injury, and continues to until the date of the formal presentation of the claim –> if an individual possesses dual or multiple nationality, any state of which he is a national may adopt a claim against the third state Exhaustion of local remedies • Customary international law provides that before international proceeding the remedies provided by the local state should have been exhausted. The purpose of the rule is to enable both states to have the opportunity to redress the wrong and reduce the number of international claims brought to court • Art 44 of the Articles on State Responsibility states: the responsibility of a state may not be invoked if the claim is one to which the rule of exhaustion of local remedies apply and the available local remedy has not been exhausted • The local remedies rule does not apply where one state has been guilty of a direct breach of international law causes immediate injury to another state • The rule does apply where a state is complaining of injury to its nationals. Treatment of aliens • States of the West have argued there is an international standard for the protection of foreign nationals vs other states believe all a state needs to do is treat the alien as it does with its nationals • The Calvo doctrine holds that the rules governing the jurisdiction of a country over aliens should apply equally to all nations • The human rights law has developed considerably and is now regarded as establishing certain minimum standards of state behaviour with regards to civil and political rights • The relevant instruments refer to all individuals within the territory and subject to the jurisdiction of the state without discrimination • The ILC adopted Draft Articles on the Expulsion of Aliens in 2014 • Art 3 state has the right to expel an alien, however it must be done in accordance with the draft articles and without prejudice to other applicable rules of international law (human rights law, law in accordance to internal and international law) • One accepted reason to expel is for public security or order • Meanwhile it is prohibited to expel a refugee lawfully in the territory of the state concerned except for national security or order nor may the refugee be expelled or returned to a territory where the person’s life or freedom would be threatened. 1 The Use of Threat of Force by States • In the doctrine of international law, the resort to force it minimized and regulated – the focus is shifted instead on consent, consensus, reciprocity, and good faith • The law must seek to provide mechanisms to restrain and punish the resort to violence Historical evolution • The concept of a “just” war comes from Greek and Roman philosophy and was employed as the ultimate sanction for the maintenance of an ordered society • St. Thomas of Aquinas believed war could be justified provided it was waged by the sovereign authority, like the punishment of a wrongdoer, and was supported by the right intentions on the part of the belligerent • With the rise of European nation-states and the new state of international affairs there was a simple balance of power system • The doctrine of the application of force by states to suppress wrongdoers to a concern to maintain the order by peaceful means • The definitive establishment of the European balance of power system after the Peace of Westphalia of 1648, the concept of the just war disappeared from international law as such. States were sovereign and equal, and therefore no state could presume to judge whether another’s cause was just or not • There did exist laws giving the right to resort to such measures, but they are probably best understood in the context of the balance of power mechanism of international relations • The creation of the League of Nations after WWI reflected the completely different attitude to the problems of force in the international order • The Covenant of the League declared that members should submit disputed likely to lead to a rupture to arbitration or judicial settlement or inquiry by the Council of the League • League members agreed not to go to war with members complying with such a n arbitral award or judicial decision or unanimous report by the Council • The League system did not prohibit the war or the use of force, but it set a procedure designed to restrict it to tolerable levels • The Kellogg-Brian Pact of 1928, was a treaty that revealed the evolution to the condemnation of the recourse to war –> all signatory states agreed to renounce it as an instrument of national policy UN Charter • Art2(4) gives an overall prohibition of the use of force and the threat of the use of force by states • This provision is now regarded as a principle of customary international law that is binding to all states in the world community • There are important exceptions to this article, especially with regards to self-defence and collective measures • The UN Charter implies force to be armed force, vs the 1970 Declaration on Principles of International Law recalls the duty of states to refrain from using military, political, economic or any form of coercion aimed against the political independence or territorial integrity of another state. • The specific attitude towards nuclear weapons is that if the projected use was intended as a means of defence and there would be a consequential and necessary breach of the principles of necessity and proportionality, this would suggest that a threat contrary to Art 2(4) existed • The provisions governing the resort to force internationally do not affect the right of a state to take measures to maintain order within its jurisdiction • The UN Charter specifies that the unlawful use of force “against the territorial integrity or political independence of any state,” this can be interpreted as: • The situation in the DRC in 1999 demonstrated that aid by foreign states to the govt was acceptable, while aid to rebels was not Humanitarian intervention • Intervention done to protect the lives of persons situated within a particular state and not necessarily nationals of the intervening state is permissible in strictly defined situations. • Practice has been unfavourable about the subject because it have an excuse for stronger states to enter the territories of weaker states • The situation in Kosovo in 1999 was particular. The UN did not formally endorse NATO action but didn’t condemn it either, it received meagre support. • One variant of humanitarian intervention is the contention that intervention to restore democracy is permitted. • More recently there has been extensive consideration for the Responsibility to Protect, a concept embodying the responsibilities to prevent catastrophic situations, to react immediately, and to rebuild afterwards –> these responsibilities fall upon states and the international community and notably include the commitment to reconstruction after intervention or initial involvement • The obligation of state to protect human rights on their territory and the primary focus upon the UN with regard to any military action have been blunted. Terrorism • Terrorism is a tough topic in international law • Definition? • Understanding the relationship between terrorism and the use of force by states in response • Understanding the relationship between terrorism and human rights • UN has adopted fourteen international conventions concerning terrorism • A common model, establishing the basis of quasi-universal jurisdiction with an interlocking network of international obligations • Definition: “criminal acts intended or calculated to provoke a state of terror in the general public, a group, a person, particular persons for political purposes are unjustifiable whatever philosophical, ideological, racial, religious or any other reason invoked” • “all acts, methods, and practices of terrorism, as criminal and unjustifiable, wherever and by whomever committed.” • “states are also obliged to refrain from organizing, instigating, facilitating, financing or tolerating terrorist activities; take practical measures to ensure their territories are not used as terrorists installations, training camps or for the preparation of terrorist acts against other; State are obliged to apprehend and prosecute or extradite perpetrators of terrorist act; cooperate with other states in exchanging information and combating terrorism” • Sept 2006 UN Global Counter-Terrorism Strategy • Condemnation of terrorism • International cooperation • Addressing conditions conducive to the spread of terrorism • Adoption of a variety of measures to prevent and combat terrorism • Adoption of measures to build states’ capacity to prevent and combat terrorism • Measures to ensure respect for human rights for all and the rule of law as fundamental basis • The UNSC has been active in dealing with the terrorism threat • Many regional instruments condemning terrorism have been adopted –> by the EU, South Asian Association, Arab Convention, Commonwealth, African Union, etc 1 • Coupled with the increase in international action to suppress the international terrorism has been a concern that this should be accomplished in conformity with the principles of international human rights law and international humanitarian law The Collective Security System • The system established by the United Nations for the maintenance of peace and security was intended to be a comprehensive in its provisions and universal in its application • The wronged state was to be protected by all and the wrongdoer punished by all Security Council • Art 24 of the UN Charter, the Council was granted primary responsibility for the maintenance of the international peace and security, and its decisions are under article 25 binding upon all members states. It was thus to fulfil a dynamic, executive function • Actions taken by the SC are dealing with the pacific settlement of disputes, are purely recommendatory, matters concerning threats to, or breaches of, the peace or act of aggression give rise to the decision-making powers • First the SC must define the situation, before adopting any measures relation to the enforcement of world peace, article 39 of the Charter requires that it must “determine the existence of any threat to the peace, breach of the peace, or act of aggression” • The definition also depends upon the relationship of the five permanent members of the council (UK, US, China, Russia and France) –> for all powers have veto power, one negative vote is sufficient to block all the procedural resolutions of the Council • The adoption of Chapter VII enforcement action constitutes an exception to the principle states in article 2(7) of the Charter, according to which the UN is not authorized to intervene in matters which are essentially within the domestic jurisdiction of any state • For example, the situation in Somalia in 1992 was defined as a threat to the peace, in resolution 794 the council underlines that “the magnitude of the human tragedy caused by conflict in Somalia, further exacerbated by the obstacles being created to the distribution of humanitarian assistance, constitutes a threat to international peace and security” • The council has also determined “the widespread violation of international humanitarian law” constitute a threat to peace • Meanwhile in Libya, as stated in resolution 748 (1992) the council determined that “the failure of the Libyan govt to demonstrate by concrete actions its renunciation of terrorism and in particular it continues failure to respond fully and effectively to it” • The reference to international terrorism were made in the context of a determination of the threat to peace –> this is an important in combating such a phenomenon for it paves the way for the adoption of binding sanctions, this was reinforced by the resolution drafted by the SC in the wake of the attacks on September 11th of 2011 • The SC also identified the proliferation of nuclear, chemical and biological weapons, as well as their means of delivery, constituted a threat to international peace and security and proceeded to establish a sanctions regime monitored by a committee of the Council • A definition of aggression was given UNGA in 1974 as: Article 1 provides that aggression is the use of armed force by a state against the sovereignty, territorial integrity of political independence of another state, or in any other manner inconsistent with UN Charter. • The use of force is an exclusive prerogative of the UNSC: very circumscribed notion (art 51) • The SC will not step in to forcefully enforce a provision • The SC cannot be considered the enforcement and executive power in the international legal order because the wider frame extends, and the executive function is decentralized • In the case of a state's misconduct, the SC will not intervene in the breach, but it will be individually responded to by the injured state only • The boundaries of SC action are depicted under the charter itself --> art 39, chapter 7, highlights that the SC is not the world executive because it steps in only in three occasions • When there is a threat to peace • Breach to peace • Act of aggression Measures VII Measures • Action with respect to threat to peace, breach of the peace or acts of aggression …not involving the use of force • Measures not involving the use of force provided by article 40 of the Charter • “In order to prevent an aggravation of the situation, the Security Council may, before making the recommendations or deciding upon the measures provided for in Article 39, call upon the parties concerned to comply with such provisional measures […].” ■ Examples include the withdrawal of ceasefires or the withdrawal of troops from foreign territory • Article 41 states “The Security Council may decide what measures not involving the use of armed force are to be employed to give effect to its decisions, and it may call upon the Members of the United Nations to apply such measures.” ■ Examples are: complete or partial interruption of economic relations and means of communication, and the severance of diplomatic relations • Another exceptional measure is the set-up of international tribunals to prosecute war criminals by the adoption of binding resolution under chapter VII • The issue of efficacy of sanctions remains open, but the economic damage that sanction can do to the general population of a state, particularly where the govt concerned does not operate in good faith, may be immense • This has been tackled by the increasing resort to sanction against particular individuals or entities • However, a number of cases have come before domestic courts, the European Court of Justice and the European Court of Human Rights arguing that the sanction system affects particular legal or natural persons has to be rendered compliant with human right • The countervailing claim that by virtue of article 25 member state are obliged to carry out SC decisions and by article 103 the obligations under the Charter were to prevail in case of conflict … involving the use of force • Article 42 calls for the actions involving the use of force • Actions extend to demonstrations, blockades and other armed operations by members of the UN • Article 43 provides for members to conclude agreements with the SC to make available armed forces, assistance and facilities • Article 45 holds that “in order to take urgent military measures, member states shall hold immediately available national air-force contingents for combined international enforcement action” • This was intended to create a UN corps to act as the arm of the Council to suppress threats to, or breaches of, the peace or acts of aggression Responsibility to Protect and Humanitarian Intervention by the UN • Each state has the responsibility to protect its population from genocide, war crimes, ethnic cleansing and crimes against humanity, the international community through the UN also had the 1 –> 18 Major Mafart and Captain Prieur were transferred to Hao on 23 July 1986. The Case of Major Mafart • On 10 December 1987 the commander of the Hao military base notified the French Ministry of Defence that Major Mafart was experiencing health issues and recommended that he be evacuated to Paris on 13 December 1987. In a series of communications New Zealand and France attempted to negotiate a means by which a New Zealand doctor could examine Major Mafart on Hao prior to New Zealand formally agreeing to his departure from the island but France was unwilling to allow a New Zealand aircraft to land on Hao. Major Mafart was evacuated from Hao, without New Zealand’s consent. The French authorities, called this a case of force majeure, are that they were forced to proceed so to not compromise any further the health of Major Mafart. • Major Mafart was never returned to Hao. The Case of Captain Prieur • On 3 May 1988 France notified New Zealand that Captain Prieur was six weeks pregnant. France contended that the medical facilities on Hao were inadequate to handle the pregnancy. New Zealand once again requested that it be allowed to conduct its own medical examination prior to repatriation, to which France agreed. However, while a New Zealand doctor was en route to Hao, France notified New Zealand that Captain Prieur required immediate repatriation because her father was dying of cancer. On 5 May 1988 New Zealand refused to agree to repatriation on the basis of the state of health of Captain Prieur’s father. One hour later, France stated that ‘[t]he French Government considers it impossible, for obvious humanitarian reasons, to keep Mrs. Prieur on Hao while her father is dying in Paris.’ • One hour after that, Captain Prieur left Hao for Paris and never returned to Hao. The Contentions of the Parties • New Zealand sought a declaration that France had breached its obligations to it a) by failing to seek in good faith New Zealand’s consent to the removal of Major Mafart and Captain Prieur, b) by removing them from Hao, and c) by failing to return them to Hao. • In addition, it sought a declaration that France was under an obligation to return Major Mafart and Captain Prieur to Hao for the balance of the three-year period, and an order requiring France to do so. • France contended that the two agents’ removal was justified by the special circumstances particular to each case. Concerning its failure to subsequently return the agents to Hao, France argued that Major Mafart had been declared unfit to serve overseas for an indeterminate period and Captain Prieur could not return because after the birth of her child on 15 December 1988.It argued with respect to both individuals that ‘the obligation to return can have no existence after 22 July 1989, the expiration date of the 1986 Agreement.’ International Law The Applicable Law • The Arbitral Tribunal set up for this case concluded that both the customary law of treaties and the customary law of State responsibility were relevant and applicable to the dispute. Circumstances Precluding Wrongfulness • The Tribunal examined in detail whether France’s actions could be justified with regard to the circumstances precluding wrongfulness in the law of State responsibility, in particular the doctrines of force majeure and distress. • Referring to Art. 31 (1) ILC Draft Articles on State Responsibility of 1979, it concluded that force majeure only applied to cases of absolute and material impossibility, not to circumstances merely rendering performance more difficult or burdensome, and thus held unanimously that it did not apply to the case. • The Tribunal distinguished distress from force majeure, arguing that distress was less absolute in that ‘the State organ admittedly has a choice, even if it is only between conduct not in conformity with an international obligation and conduct which is in conformity with the obligation but involves a sacrifice that it is unreasonable to demand. • It also distinguished the doctrine of necessity, the general acceptance of which was controversial. In the context of the case, the Tribunal held that in order for France to justify its conduct with reference to the doctrine of distress, it would have to show: a) the existence of very exceptional circumstances of extreme urgency involving medical or other considerations of an elementary nature, b) a good faith effort to obtain the consent of New Zealand for the repatriation of Major Mafart and Captain Prieur c) their return to Hao as soon as the reasons of emergency had disappeared. • Applying these circumstances to the case of Major Mafart, the Tribunal concluded by two votes to one that his initial evacuation, albeit without the consent of New Zealand, was not wrongful since subsequent examination showed that he required medical treatment not available in Hao. • On the other hand, the Tribunal unanimously concluded that France had breached its obligations to New Zealand by not returning Major Mafart to Hao after 12 February 1988, when he was found to have recovered. • As to Captain Prieur, the Tribunal unanimously held that France had not endeavoured in good faith to secure the consent of New Zealand prior to Captain Prieur’s repatriation, and that consequently it had committed a material breach of its obligations to New Zealand by repatriating Captain Prieur. It also found that France had committed a material breach of its obligations in failing to return Captain Prieur to Hao *a State may not rely upon its own domestic law as grounds for failure to comply with its international obligations. Classification of the Breaches • The Tribunal unanimously held that the breaches by France of its international obligations towards New Zealand constituted material breaches and then applied the distinction drawn by the ILC in its 1996 Draft Articles on State Responsibility between ‘instantaneous breaches’ (Art. 24) and ‘continuous breaches’ (Art. 25 (1)), concluding that the failure to return the two agents to Hao constituted a continuous breach. Duration of the Obligations • A majority of the Tribunal found that France’s obligations regarding the two agents under the 1986 Exchange of Letters came to an end on 22 July 1989, three years after the agents were handed over by New Zealand. It reasoned that France had committed an uninterrupted and continuing breach with respect to each agent until that date, with the result that the period of operation of the obligation had ceased on that date. Accordingly, it rejected New Zealand’s request for an order that France return the two agents to Hao. 1 Remedies • The Tribunal unanimously held that it could not accept New Zealand’s request for a declaration and an order that Major Mafart and Captain Prieur return to the island of Hao, since the majority had found that the obligation to hold them on Hao had expired on 22 July 1989, and an order for the cessation or discontinuance of wrongful acts or omissions is only justified in cases of continuing breaches of international obligations which are still in force at the time the judicial order is issued. • Considering that a declaration by an international tribunal that a State had committed a violation of its international obligations towards another State was a widely accepted form of satisfaction, the Tribunal concluded that the condemnation of France, made public by the Tribunal’s decision, constituted appropriate satisfaction for the legal and moral damage caused to New Zealand. • Finally, the Tribunal unanimously recommended that, in order to promote the process of reconciliation, France and New Zealand should establish a fund to promote close and friendly relations between the citizens of the two countries, and that France should make an initial contribution of US$2 million to that fund.