Public International Law Exam Notes 3w5t6h

REZ ON INTERNATIONAL LAW

Lawpubl 402: International Law 1. History and Theory of International Law 2. Sources of International Law A. Treaties, Customary International Law, Unilateral Acts and General Principles of Law B. The Lotus Presumption 3. The Law of Treaties A. Conclusion, Interpretation, Application and Amendment B. Validity and Invalidity, Termination and Withdrawal C. Reservations 4. The Subjects of International Law A. Statehood B. Self-Determination 5. The Individual in International Law 6. The Law of Responsibility A. Basic Principles B. Attribution

C. Circumstances precluding wrongfulness D. Legal Consequences of a Wrongful Act E. F. G. H.

Invocation of Responsibility Critical Perspectives Responsibility of International Organisations Case Study – The Rainbow Warrior Arbitration 7. International Courts and Tribunals A. Adjudication and Arbitration B. Consultation, Negotiation, Inquiry, Good Offices, Mediation and Conciliation 8. Collective Security 9. Use of Force A. The Prohibition on the Use of Force and the Right to Self-Defence B. The Doctrine of Humanitarian Intervention and the Responsibility to Protect C. The Use of Force in Kuwait in 1991 and in Iraq in 2003 D. The Use of Force in Afghanistan in 2001 E. The Use of Force in Libya in 2013 F. The Situation in Syria 2011-2014 G. Intervention in Internal Armed Conflict H. Conclusion and Comments on Cyber Attacks 10. Domestic Courts’ Relationship with International Law

ICJ Statute Article 38 Asylum Case; North See Continental Shelf Cases; Nicaragua v United States of America; UK v Norway Lotus Case; Legality of the Threat or Use of Nuclear Weapons (Advisory Opinion) Vienna Convention on the Law of Treaties Kosovo Advisory Opinion; Case concerning Oil Platforms (Iran v USA) Gabikova-Nagymaro’s Project; UK v Libya; DRC v Congo; Advisory Opinion on Genocide (Object & Purpose Test) Montevideo Convention on Rights and Duties of States (Criteria for Statehood); Northern Cyprus; Scotland Western Sahara; East Timor; Quebec Secession ILC Law of Responsibility Genocide case (Bosnia v Serbia & Montenegro) (Effective control test); Rainbow Warrior; Nicaragua v USA; Tadic (Overall control test); DRC v Congo (Effective control test); USA v Iran Construction of a Wall; Caroline; Gabikova-Nagymaro’s Project USA v Iran; Gabikova-Nagymaro’s Project; Bosnia v Serbia & Montenegro; Construction of a Wall Barcelona Traction Behrami v

Rainbow Warrior

Chapter VII of Charter; Kadi; Al-Jedda; Bosnia v Serbia & Montenegro Article 2(4) of the UN Charter Article 51 of the UN Charter; Caroline; Nicaragua v USA; Legality of the Threat or Use of Nuclear Weapons (Advisory Opinion); DRC v Uganda; Construction of a Wall Kosovo

Nicaragua US document Seller; Jones

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History and theory of international law


History and theory of international law International law is another legal system but connected constitutionally into our legal system. States are the main actors in international law and are called the main personality. Contents:the 1. 2. 3. 4. 5.

Emergence of the modern state using as a reference point Peace of Westphalia 1648. Core characteristics of international law. Looking back before the Peace of Westphalia. Looking forward from the Peace of Westphalia. How much do breaches of international law matter?

Emergence of the Modern State: Peace of Westphalia 1648  

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Before this time, the Modern state as we know it did not exist. Overall powers existed with the Pope and Emperor. Comprised of two treaties; set territorial boundaries and agreement that citizens in each state were only going to be subject to the commands of their government and not neighbouring government. Emergence of islands of sovereignty; legal equality of state and equally sovereign states. Developed Westphalian sovereignty with individual international personality. This parallels to equal votes on UN regardless of size of country.

Core Characteristics of International Law Today 1. 2. 3. 4. 5.

A horizontal system of sovereign equal states. There is no hierarchy. The state is personified. The state embodies the will of all citizens. The will of the state can be manifested by the actions and thoughts of it’s leader. A positivist system; the law is law because it is made by the proper rules, in the case of international law because it is made by States. A voluntarist system; states opt in i.e. based on consent. Universally applicable; the system applies to all states.

1. What is the difference between public international law and private international law? Whereas private international law regulates individual conduct with a transboundary element (international contracts, international marriages or international traffic accidents, for example), public international law is often said to regulate relations between states. 2. When was the Peace of Westphalia and what was the war that it brought to an end? In 1648, the Peace of Westphalia was concluded to mark the end of the Thirty Years’ War. 3. What was the relationship between religion and statehood following the Peace of Westphalia? Weakened the link between statehood and religion, particularly crippling the secular power of the Pope. In Munster and Osnabruck (two cities in today’s ), the secular power of the pope came to a definitive end. It was agreed to confirm an earlier arrangement emanating from the 1555 Peace of Augsburg, to the effect that Europe would be divided into a number of territorial units, and that each of these units could decide for itself which religion to adopt. No outside reference was permitted, the result being the creation of sovereign states and therewith, the birth of the modern state system. 4. What do you see as the central difficulty of having an international law consisting of “natural law”? Natural law has a moral basis and subjectivity to working out it’s content and different states has different views to it. In theory, we know the content of natural law by deducting it from human reasoning i.e. it is a logical law. The problem with such a view is that it is inherently subjective. Those of a different faith might reach different conclusions, and even people adhering to the same faith might reach different conclusions involving one and the same incident. 5. What is meant by “positivist” international law? What do you see as the central problem of a positivist international law? Positivism starts from the position that law does not hover about in nature but is, instead, man made. The contents of law can be discovered by looking at what states actually do. A law is valid if it made using the correct form. It’s man-made law and it has no necessary moral content. A central problem is that if the law is what states do anyway, well then it does not have much of a normative function.

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REZ ON INTERNATIONAL LAW Looking Back Before the Pecse of Westphalia: (1) The Natural Law Origins of International Law  Natural Law conceptualised as rules of universal relevance there were rational and logical. Stoic conceptions of law have been influential as today international law in of universal relevance.  Also origins in Roman Jus Gentium applying to universal relevance between human relations.  Divine law; particularly Christian concepts of law influential in the conception of natural law i.e. moral law according to Christianity.  Grotius focused on the idea of justice rather than religious morality and therefore severing natural law from divine law (founding father of international law).  Moving through the 1600’s, international law becoming more positivist i.e. states were becoming to regard their own consent and informing law. Looking Back Before the Peace of Westphalia: (2) Factors Leading to the Rise of Positivism The new thinking of the Renaissance period: 1400-1600. Secularism and Empiricism both influenced the rise in positivism. Emphasis on looking around seeing what states were doing based on their consent and this became the dominant view of what international law is. The doctrine of sovereignty emerged in the late Renaissance. Bodin saw the need for internal sovereignty and an overall supreme power with its relations with other states. This ties in with positive law which states that the law is law made by the sovereign. Looking Forward from the Peace of Westphalia      

By the 1800s and international legal order has come into being that is highly Eurocentric. Balance of authority is with the European Christian states. End of the Napoleonic Wars. First and Second World War, and decolonisation – moving into ‘statehood’. Emergence of the UN; forum for new states to establish a power base. States could constitute a majority. New International Economic Order movement 1970s, seeking permanent sovereignty over natural resources, control over their own economies, the importance of rules governing multinational companies’ repatriation of capital, their payment of tax and transfer of technology to developing countries.

How universal has modern international law been? Ukraine – counter to basic principles of international law i.e. non-intervention and use of force. Russian perspective on international law generally; how much have they bought into the concept of international law? Russia – It was not always the case that Russia participated in international law in the way that it does today. During the Russian Revolution, Russian thinkers came up with the idea that we were in a transitional phase where international law would be critiqued from a socialist point of view. Then, Stalin came in and the Soviet Union accepted only certain rules of international law, including national self-determination, state sovereignty and the equality. Post-Stalinist realise that there was a single system of international law and peaceful co-existence. Fading of the Cold War saw the strengthening of the international system and now the Russian outlook is quite similar to the majority of world (after a phase of selection of international law that were in line with the states philosophies and principles). Very much aware and a part of international law, in fact, attempting to defend actions using international law today. Not yet saying that their actions are contrary to international law. China – Shaw tells us that the Chinese perspective has remained that international law is part of international politics and is subject to considerations of power and expediency. However, he also notes that “now the isolationist phase of its history is over” China is fully engaged in world politics and its view on international law has become more legalised. At the same time, we have globalisation i.e. universalising western civilisation in new ways, and through new relationships of inter-dependence between “individuals, groups and corporations, both public and private, across national Do breaches of international law mean there is no international law? Breaches do not mean that international law does not exist, rather, that international laws become weakened. Also, responses to breaches of international law impacts the strength of international law. E.g. Many arguments that Russia is making, using the international law system, is a way of testing the boundaries and find out what international law actually is. Why is International Law followed?

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REZ ON INTERNATIONAL LAW Sir Humphrey Waldock notes that: “It is significant that when a breach of international law is alleged by one party to a controversy, the act impugned is practically never defended by claiming the right of private judgment, which would be the natural defence if the issue concerned the morality of the act, but always by attempting to prove that no rule has been violated…” (H. Waldock, Brierly, The Law of Nations 6th Ed, 1963). Harris repeats Brierly’s view that: The occasions on which international law is complied with greatly outnumber the occasions on which it is breached (Harris, 5). Philip C Jessup, A Modern Law of Nations (The MacMillan Company, New York, 1948):   

“The vast majority of such engagements are continuously, honestly, and regularly observed even under adverse conditions and at considerably inconvenience to the parties” (Harris, 5-6). There is a “law habit” in international relations. Situations where states do not comply with the judgments of international courts as rare as newspaper headlines reporting that “man-bites-dog”.

T M Frank, The Power of Legitimacy Among Nations (Oxford University Press, Oxford, 1990), explains why states obey international law in of legitimacy… Legitimacy attaches to a rule or institution when it has come into being, and operates in accordance with, generally accepted principles of right process. (Shaw, 62) Bureaucratic Inertia – civil servants are creatures of habit. Reputation; it’s in a States interest and purpose to observe international law. Further International Legal Theories:  Critical legal studies  Koskenniemi  Feminist theories So is international law really law? International law has sometimes been referred to as “positive morality” instead of law i.e. international law cannot actually qualify as positive law. This was the expression used by John Austin, the English philosopher, (The Province of Jurisprudence Determined (London, 1954). that Austin views law as based on a concept of a sovereign, who issues commands. Harris describes this view as remarkably persistent, and notes that is “has, to this day, upset international lawyers and placed them on the defensive” (Harris 5). Summary on first topic  Peace of Westphalia  Positivist international law  Impact of serious breaches of international law; non-intervention and use of force  In most cases however, most international laws are observed

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Sources of international law


Sources of international law Sources of international law [Identified in Article 38(1) of the Statute of the ICJ] 1. Treaties 2. Customary International law 3. General principles of law 4. Judicial decisions and the teaching of the most highly qualified publicists Article 38 (1) Statute of the International Court of Justice The Court, whose function is to decide in accordance with international law such disputes as are submitted to it, shall apply: a) international conventions. whether general or particular, establishing rules expressly recognised by the contesting states; b) international custom, as evidence of a general practice (state practice) accepted as law (opinio juris); c) the general principles of law recognised by civilised nations; d) 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. Subsidiary means that you would turn to later in one’s decision

Article 59 - The decision of the Court has no binding force except between the parties and in respect of that particular case. States may still enter into a treaty that serves the same purpose of customary international law because it’s more certain. There may also be enforcement mechanisms that customary international law cannot promise. Consistent with voluntarism and consent; states will not be bound by the formation of international customary law with persistent objection.

Treaties, customary international law, principles of law

unilateral acts and general

Treaties 

Treaties, Conventions, International Agreements, Pacts, General Acts, Charters, Statutes, Covenants…these are all usually treaties and are binding instruments  Declarations, Memoranda of Understanding, Resolutions…these are usually non-binding instruments.  E.g. Rio Declaration on Environment and Development 1992, 31 ILM 874 (1992).  E.g. United Nations Declaration on the Rights of Indigenous Peoples G.A. Res. 61/295, A/RES/61/295 (2007), 46 I.L.M. 1013 (2007) e.g. the Ainu people.  Sense of voluntarism; consent it essential to the formation of binding treaties. Note: there are some instances where states may not have a chance to consent – keep an eye out!

Customary international law Article 38(1)(b) ICJ Statute — ‘General practice accepted as law’ At international, custom is a very basic and fundamental source of law. It is still very contemporary and not a thing of the past. Customary international law has two components: 1. State practice; what states do. 2. Opinio juris; what states think. The belief that they are obliged to act the way they do by customary international law.


REZ ON INTERNATIONAL LAW = Fact + belief! If we just left it a state practice, need explicit thought that it is law. This is the basic rubric of customary international law. Shaw’s definition of customary international law – “for a custom to be accepted and recognized it must have the concurrence of the major players in that particular field”.

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The Asylum case, ICJ Reports 1950 266 Case is about Haya de la Torre’s safe age.  Facts: A Peruvian, called Haya de la Torre, seeks asylum at the Colombian Embassy in Peru after he has participated in an unsuccessful rebellion against the Peruvian Government.  Colombia grants him asylum at its embassy but how will he get from the embassy to outside of Peru?  Peru refuses to grant a safe conduct to let him leave Peru. Asylum is not granted for individuals who have committed criminal offences. Peru says that Haya de la Torre has committed a criminal offence rather than a political offence… Peru says that Peru is entitled to define the offence, and because in Peru’s view he is not entitled to asylum from Colombia then Peru can refuse him a safe conduct.  Colombia argues that there is a customary rule of international law in Latin America (a regional custom) according to which Colombia, the country granting asylum, is competent to define the offence.  Issue: Is it the country (Peru) to gets to define the offence or the country hosting the embassy (Colombia)  Whether there is a customary international law that allows Columbia to define the offence. This is a question of customary international law  Judgment: What was the Court’s finding?  Held that there was no such customary international law. The facts showed so much uncertainty and contradiction – was not constant and uniform.  That there wasn’t a regional custom as it didn’t meet the threshold because there was evidence it had occurred but not enough evidence to show that it was a custom, only some and uncertain evidence in the state practice.  It was not possible to discern any ‘constant and uniform usage’ as accepted in law with regard to the alleged rule. Where would you look for evidence of state practice and opinio juris?  E.g., legislation, diplomatic correspondence, policy statements, speeches, press releases, official manuals, decisions and practices of the executive government, orders given to the armed forces, digests of State practice.  Look to the branch of the State  Look to the decisions of our courts – whether the judges say it is to be understood as customary international law

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North Sea Continental Shelf Cases ICJ Reports 1986 14 This case is the locus classicus, or classical reference point, on customary international law. Issue: what is the rule on how to determine the maritime boundaries for The Netherlands, and Denmark.  What is the international law rule on determining where the continental shelf lies, and under whose jurisdiction Facts: is not party to the Geneva Convention on the Continental Shelf 1958 but Denmark and the Netherlands say it doesn’t matter because it is a customary international law. Arguments arise - where a treaty has many parties it must be perceived as custom. However this is generally viewed as not enough - is there opinio juris [Are states acting that way only due to the fact that there is a treaty or is there evidence that they perceive it as an expected custom].  Netherlands and Denmark argued that this was irrelevant as it was ruled under customary law.  The court rejects this. It argues: State practice must be constant and uniform, and must include states whose interest is especially affected. — see para 77. The custom must be viewed as a legal obligation.  Denmark and The Netherlands argue that the equidistance principle is also a customary international law. Rejected by the court. Shaw (77-78) summarises. “In the North Sea Continental Shelf cases, the ICJ remarked that state practice: 1. Had to be ‘both extensive and virtually uniform’; 2. Would have to have occurred in a way that showed “a general recognition that a rule of law or legal obligation is involved”; and 3. Include that of “states whose interests are specially affected’. Was there sufficient evidence of State practice and opinio juris in this case to the finding that there existed a rule of customary international law requiring the application of the equidistance principle?   Held not enough evidence. It is very hard to establish customary international law. Note: no issues with being cross-over between treaty agreements and customary international law but there a very distinct and different tests for determining each. Must use the prescribes rubric for each.   Note: it is difficult to establish customary international law.


REZ ON INTERNATIONAL LAW You have to use the rubric to establish there is custom. So there may be a treaty and customary international law but they are two different sources of law. If there is state practice, you have to find whether there’s the belief that it’s a custom (i.e. states are not just acting this way because there is a treaty but they actually believe it’s a custom).

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Participating States: Shaw (p.76): “for a custom to be accepted and recognised it must have the concurrence of the major players in that particular field”. Charles De Visscher, (Theory and Reality, 1953): among the s are always “some who mark the soil more deeply with their footprints”.

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Duration “Instant” customary international law?

Sometimes it can occur very quickly — i.e. WW2 custom of sovereignty over airspace came into being with the rapid rise of industrial progress in airplanes etc. It has been suggested that this problem is understood by States, and for a new rule it may be sufficient if states act in a certain way with the belief this is in accordance with a new rule that is coming into being. Treaties and custom operate concurrently Different sources of international law can exist alongside one another Case Concerning Military and Paramilitary Activities In and Against Nicaragua (Nicaragua v United States of America) (Merits) [1986] ICJ Rep 14  Issue 1: is Article 2(4) also reflected in customary international law?  Issue 2: Is the right to self-defence paralleled in customary international law.  Facts: Dispute over US of the contras in Nicaragua (the contras opposed the Socialist Sandinista military junta that had overthrown the elected President Samoza in 1979). Nicaragua alleged breach of Article 2(4) (use of force) of the UN Charter by the US. So US was ing the idea of the elected government. Contras were fighting the military government who had overthrown the elected President Samoza in 1979. There is a deeply political element apparent here.  Nicaragua wanted the USA to leave and end their - The USA objected to the jurisdiction of the ICJ in this scenario.  The USA had a reservation to its optional clause declaration - Van Den Berg Amendment to Article 36(2) of the ICJ Statute  The United States acceptance of the Court’s compulsory jurisdiction does not extend to: “disputes arising under a multilateral treaty, unless (1) all parties to the treaty affected by the decision are also parties to the case before the Court…  Thus argued that Art 2(4) of the UN charter could not be invoked, as it was a multilateral treaty.  Judgment: The Court therefore relied upon customary international law rules to exercise its jurisdiction under the US optional clause declaration.  The ICJ held that the United States had breached customary international law obligation not to use force against another State…  And that the US action did not satisfy the criteria required for an argument of self-defence to succeed under customary international law. Why would states become party to a treaty when there’s established customary international law? Treaties are a more certain way of ensuring compliance and they may have enforcement mechanisms in place. States can avoid being bind by new rules of customary international law by becoming a persistent objector. You can’t be bound if you don’t believe it is law. However is it realistic to expect a state to object to every issue? 

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The persistent objector: Would a customary international legal rule be legally binding on States that have persistently objected during the formation of the rule? The Anglo-Norwegian Fisheries case (UK v Norway) [1951] ICJ Rep 116 Skjärgaard eg the Lofoten Islands UK states that customary international law has a rule that straight baselines can only be drawn for bays less than 10miles across. Norway had for many years drawn baselines from its islands — A baseline is where you measure your EEZ from. The UK attempted to enforce the rule that the baselines could be drawn only where the bay is less than 10 miles across. However, Norways practice of baselines further out was historical and had largely been tolerated by states.



Questions on Readings:

Nicaragua alleges the unlawful use of force by the US. The US reservation to its optional clause declaration under Article 36(2) of the ICJ Statute means the Court has no jurisdiction to consider Nicaragua’s allegations against the US under Article 2(4) of the UN Charter, i.e. under treaty. But is the Court prepared to refrain from making findings under customary international law concerning Nicaragua’s allegations against the US? (paras 173-182, see especially 182) In its Judgment of 26/11/84, the Court affirmed that it “ cannot dismiss the claims of Nicaragua under the principles of customary and general international law, simply because such principles have been enshrined in the texts of the conventions relied upon by Nicargua. The fact that they have been codified or embodied in multilateral conventions does not mean that they cease to exists and to apply as principles of customary law, even as regards countries that are parties to such conventions. Principles such as those of the non-use of force, non-intervention, respect for the independence and territorial integrity of States, and the freedom of navigation, continue to be binding as part of customary international law, despite the operation of provisions of conventional law in which they have been incorporated”. The court concludes that it should exercise the jurisdiction conferred upon it by the US declaration of acceptance under Article 32, para 2, of the Statute, to determine the claims of Nicaragua based upon customary international law notwithstanding the exclusion from its jurisdiction of disputes “arising under” the UN and Organisation of American States Charters. The law of self-defence is found in Article 51A of the UN Charter. Does customary international law in self-defence continue to exist alongside this treaty law? (paras 176-182) It cannot be held that Article 51 is a provision which “subsumes and supervenes” customary international law. It rather demonstrates that in the field in question, the importance of which for the present dispute need hardly be stressed, customary international law continues to exist alongside treaty law. The areas governed by the two sources of law thus do not overlap exactly, and the rules do not have the same content. But even if they did have the same content, that would not be a reason for the Court to hold that the incorporation of the customary norm into treaty-law must deprive the customary norm of its applicability a distinct from that of the treaty norm. No grounds for holding that when customary international law is comprised of rules identical to those of treaty law, the latter “supervenes” the formed, so that customary international law has no further existence of its own. What are the two traditional elements of customary international law that the Court sets out to establish? (paras 183-184) It is axiomatic that the material of customary international law is to be looked for primary in the actual practice and opinio juris of States, even though multilateral conventions may have an important role to play in recording and defining rules deriving from custom, or indeed in developing them. Must State practice be uniform and consistent? (para 186) It is not expected that in the practice of States the application of the rules in question should have been perfect in absolutely rigorous conformity with the rule. The Court deems it sufficient that the conduct of States should, in general, be consistent with such rules and that instances of States conduct inconsistent with a given rule should generally have been treated as breaches of that rule, not as indications of the recognition of a new rule. What weight will the Court place on situations where a state has acted inconsistently with the alleged rule, but has appealed to justifications for this? (para 186, last paragraph) If a state acts in a way prima facie incompatible with a recognised rule, but defends its conduct by appealing to exceptions or justifications contained within the rule itself, then whether or not the State’s conduct is in fact justiciable on that basis, the significance of that attitude is to confirm rather than to weaken the rule. How does the Court say it may deduce opinio juris? (para 188) The opinio juris may, though with all due caution, be deduced from inter alia, the attitude of the Parties and the attitude of the States towards certain General Assembly resolutions, and particularly resolution 2625(XXV) entitled “Declaration on Principles of International Law concerning Friendly Relations and Co-operation among States in accordance with the Charter of the United Nations”. It would therefore seem apparent that the attitude referred to expresses an opinio juris respecting such a rule (or set of rules), to be thenceforth treated separately from the provisions, especially those if an institutional kind, to which it is subject on the treaty-law plane of the Charter. What is the relevance of the fact that Article 51 of the Charter, in describing the right of self-defence, calls it an inherent right? What other evidence does the Court rely on in establishing that the right to collective self-defence exists at customary international law as well as in Article 51? (para 193) The language of Article 51 of the UN Charter, the inherent right (or “driot naturel” which any State possessed in the event of an armed attack, covers both collective and individual self-defence. Thus, the Charter itself testifies to the existence of the right of collective self-defence in customary international law. Just as the wording of certain General Assembly declarations adopted by States demonstrates their recognition of the principle of the principle of the


REZ ON INTERNATIONAL LAW prohibition of force as definitely a matter of customary international law, some of the wording in those declarations operates similarly in respect to the right to self-defence (both collective and individual).

Did the Court find that the US had acted contrary to the customary international law prohibition on the use of force? (para 292 (4)) By twelve votes to three, the Court decides that the US has acted against the Republic of Nicaragua, in breach of its obligation under customary international law not to use force against another State. Did the Court find that the United States argument for justification of its use of force by reason of collective selfdefence on behalf of Nicaragua’s neighbours was justified? (para 292(2)) By twelve vote to three, the Court rejects the justification of collective self-defence maintained by the US in connection with the military and paramilitary activities in and against Nicaragua the subject of this case. Summary:  How do you show that a rule exists under customary international law? You have to show consistent State practice and also opinio juris. 

Can treaties provide evidence of State practice and opinio juris? o The mere existence of the treaty will not prove the existence of a rule of custom as we saw in the North Sea Continental Shelf cases… o However, the treaty, and acts consistent with the treaty, could constitute some of the evidence of state practice and opinio juris that together with other elements might be used to establish the existence of a customary law rule. o Note that in Military and Paramilitary Activities in and against Nicaragua in finding rules of customary international law to exist, the ICJ took of certain treaties including the UN Charter of the Organisation of American States as additional evidence of “a general practice accepted as law” (para 184). o Similarly for a Declaration or Resolution other non-binding international instrument. These could provide evidence of state practice and opinio juris. o In Military and Paramilitary Activities in and against Nicaragua the Court considered that there was opinio juris, e.g. looking at :  Attitudes to UNGA resolutions (UN Declaration on Principles of International Law Concerning Friendly Relations and Co-operation Among States (UNGA Resn 2625)). (para 188)  US of a number of resolutions and documents (para 189) o Resolutions can provide useful evidence especially of opinio juris, i.e. States’ belief about the law: you need to investigate States’ attitudes to the resolution, eg. The voting pattern of the resolution, the resolution’s content, the language used, the voting pattern on the resolution. o See also Nuclear Weapons Advisory Opinion 1996 ICJ Reports paras 68-73. Certain GA resolutions asserting the illegality of nuclear weapons were held not to be declaratory of custom.

Significance of breach If there is a customary international legal rule of non-intervention in other States and if the US has acted inconsistently with that rule, e.g. by intervening in Iraq or Aghanistan, then what effect might that have on the customary international law rule? Nicaragua case: “it is not to be expected that in the practice of states the application of the rules in question should have been perfect”. (para 186) The Grundnorm of international law?  The peak of positivism is sometimes identified with the work of Hans Kelsen “The Pure Theory of Law” (1934) 50 LQR 474 and 1935 51 LQR 517.  In Kelsen’s pure theory, rules or norms depending on a prior norm for their legal validity.  Burrowing down we need to find the basic norm or “grundnorm” of the whole system, which is its foundation.  For example, in a Westminster legal system the grundnorm appears to be the principle of parliamentary supremacy.  In international law, Kelsen saw the basic norm or grundnorm as the rule that says that customary international law is a source of law.  From customary international law we get the important rule that treaties must be observed, pacta sunt servanda.  “States ought to behave as they [have] customarily behaved” (Hans Kelsen, General Theory of Law and State, Cambridge, 1946) 328.  This reinforces the idea that if you are looking for a grounding norm, you look towards custom. The Grundnorm could be that customary int law is a source of law = This is the basic or founding norm. From this - it is a custom that dictate that treaties are binding.

General principles of law (seldom used)


REZ ON INTERNATIONAL LAW Differences of views among the committee of jurists who prepared the Statute of the ICJ Belgian jurist, Baron Descamps, had natural law concepts in mind: ‘the rules of international law recognized by the legal conscience of civilized peoples’. t proposal by Elihu Root (former US Secretary of State) and Lord Phillimore (British maritime jurist) was accepted. Root and Phillimore regarded the principles in of rules accepted in the domestic law of all civilized states. Oppenheim : ‘The intention is to authorize the Court to apply the general principles of municipal jurisprudence, in particular of private law, in so far as they are applicable to relations of States’. Eg:  estoppel or acquiescence  abuse of rights  good faith  circumstantial evidence  “Clean hands principle”

Judicial decisions Decisions of the International Court of Justice, ICJ and its predecessor, the Permanent Court of International Justice (1922-1946): no doctrine of precedent, but strives nevertheless to maintain judicial consistency. No doctrine of precedence in international courts and tribunals! But both the current court and the previous court strive for consistency. The same is true in world trade organisations. Coherent bodies of jurisprudence and those have implications for the law. They create a central core and relative certainty. Together with the teachings of the most highly qualified publicists judicial decisions are a subsidiary means for determining content of law.

Writing of publicists   

Article 38(1)(d) has been played very softly. The International Court has not referred to writings of any publicists and will only refer generally to “doctrines found in current writings”. Except in separate and dissenting opinions.

Unilateral acts Unilateral acts – One-sided declarations/promises that a nation makes to the international forum. They are part of hard law. Nuclear Tests cases (Australia v ) (New Zealand v ) (Jurisdiction) [1974] ICJ Rep 457. 1970s case: Atmospheric testing 1990s case: Underground testing Our focus is on the earlier Atmospheric testing case. had announced that the last test was to occur — Court chose not to decide the case due to this assurance.  Facts: had made public statements to the effect that atmospheric testing was about to cease: the remaining test/s would “normalement” constitute the last in the series. It was the last one  Those statements by constituted binding unilateral acts. The court was able to dismiss the case on the basis that it was now moot  Court said the character of the binding unilateral acts was founded on the State’s intention to be bound and the principle of good faith.  Pacta sunt servanda – doctrine that isn’t so common, reasonably controversial, the commission of law sought to codify it and adopts a guiding principle which relate to unilateral acts. The International Law Commission - Guiding principle on if a statement should be considered as a unilateral act: a. Declaration is publicly made and manifests a will that they may be bound by the content of the statement b. If other states have relied on the statement made… Report of the International Law Commission “Guiding principles applicable to unilateral declarations of States capable of creating legal obligations, with commentaries thereto”, Yearbook of the International Law Commission, 2006, vol. II, Part Two, Principle 1: “Declarations publicly made and manifesting the will to be bound may have the effect of creating legal obligations. When the conditions for this are met, the binding character of such declarations is based on good faith; States concerned may then take them into consideration and rely on them; such States are entitled to require that such obligations be respected.”



Soft law Soft law in non-binding, it is any legal instrument that is not binding.. Examples take the form of declarations and other instruments such as resolutions, statements by monitoring bodies, voluntary codes of conduct, introductory paragraphs in treaties (preambles):  Principles on the Effective Prevention and Investigation of Extra-legal, Arbitrary and Summary Executions, Recommended by Economic and Social Council Resolution 1989/65 of 24 May 1989  UN Declaration on the Elimination of Violence against Women, GA Res 48/104, A/RES/48/104 (1993)  Further reading: Alan Boyle and Christine Chinkin The Making of International Law (Oxford University Press, 2007) KC100 BOY Chapter 5 “Law-making Instruments”, on short loan in the Davis.

What are the pros and cons of soft law? Pros Easier to put in place and represent diversity of views and positions

A step in the development of new international law (often seen in the Human Right’s field from declaration to convention) Has political brevity (offer platform of pressure points for government action) A sign of democratisation of international law making as its processes are more inclusive and deliberate process.

Cons Principle that international law is based on the consent of state? Soft law can go a long way of a consensualist legal order. A vehicle used by impatient idealists to push international law without consent. Detached from international law based on state behaviour. A head without a body. Relationship with democracy at a national level? If you have national processes Byes the national law making process. Not enforeceable

The Lotus presumption What is the position where there appears to be no international legal rule governing a situation? According to what is known at the lotus presumption, States are in principle free to do that which is not prohibited by international law. Lotus Case, SS Lotus Case ( v Turkey)  Facts: Involved a collision on the high seas between a French steamer (the Lotus) and a Turkish steamer (BozKourt). Upon arrival of the Lotus at a Turkish port the French officer on watch, Lieutenant Demons was arrested.  Issue: Whether Turkey, by exercising jurisdiction and prosecuting a French citizen, was acting contrary to international law.  Law:  “International law governs relations between independent states. The rules of law binding upon States therefore emanate from their own free will as expressed in conventions or by usages generally accepted as expressing principles of law and established in order to regulate the relations between these co-existing independent communities or with a view to the achievement of common aims. Restrictions upon the independence of States cannot therefore be presumed.”  "Now the first and foremost restriction imposed by international law upon a State is that … it may not exercise its power in any form in the territory of another State…  It does not, however, follow that international law prohibits a State from exercising jurisdiction in its own territory, in respect of any case which relates to acts which have taken place abroad…”  “Consequently, once it is itted that the effects of the offence were produced on the Turkish vessel, it becomes impossible to hold that there is a rule of international law which prohibits Turkey from prosecuting Lieutenant Demons because of the fact that the author of the offence was on board the French ship…”  "The conclusion at which the Court has therefore arrived is that there is no rule of international law in regard to collision cases to the effect that criminal proceedings are exclusively within the jurisdiction of the State whose flag is flown…” i.e. there is not rule prohibiting Turkey from prosecuting the Frenchman.  Conclusion


REZ ON INTERNATIONAL LAW 

No presumption of international law unless can be positively identified. There is no prohibition on states doing what Turkey did. The question is ‘are there any prohibitions’, if none found, no breach of international law. Therefore, Turkey was allowed to do what they had done.

Currently - the Lotus Presumption stands Legality of the Threat or Use of Nuclear Weapons (Advisory Opinion) (pp 68) NB: This is a good example of how the courts employ the Lotus Presumption in its judicial methodology and decision-making. In 1996, the UN General Assembly decided to seek an advisory opinion from the ICJ on the legality of the threat or use of nuclear weapons. This was the result of pressure from non-nuclear weapon States and campaigns by NGO movements like the Campaign for Nuclear Disarmament. The question on which the UN General Assembly requested an Advisory Opinion was “Is the threat or use of nuclear weapons in any circumstance permitted under international law?” Some states objected to the way this was phrased as this premised that permission must be given which would be inconsistent with the Lotus Presumption. It was suggested that the word “permitted” should be replaced “prohibited”.

What did the Court say about this? (paras 22-23). The court notes that the nuclear weapon States appearing before it either accepted or did not dispute that their independence to act was indeed restricted by the principles and rules of international law. Hence, an argument concerning the legal conclusions to be drawn from the use of the word “permitted” and the question of burden of proof to which it was said to give rise, are without particular significance for the disposition of the issues before the court. The Court went on to examine the law that might be applicable to the threat or use of nuclear weapons. Identify the bodies and rules of international law examined by the Court in paras 24, 26, 27 and the Court’s findings on each point. 1. ICR – Article 6: “every human being has the inherent life to life. This right shall be protected by law. No one shall be arbitrarily deprived of his life” (international humanitarian law). Problem: arbitrarily? 2. Prevention and Punishment of the Crime of Genocide Convention – the prohibition of genocide is a relevant rule of customary international law, which the Court must apply. Problem: there must be an element of intention. 3. The use of nuclear weapons would be unlawful by reference to existing norms relating to the safeguarding and protection of the environment. Additional Protocol I of 1977, Geneva Conventions of 1949 and the Convention of May 1977 on the Prohibition of Military or Any Other Hostile Use of Environmental Modification Techniques. These were said to apply at all times, in war as well as in peace. Problem: state may still have right to act in selfdefence. Which bodies of international law does the Court then say are the most directly relevant? (para 34) In the light of the foregoing the Court concludes that the most directly relevant application law governing the question of which it was seized, is that relating to the use of force enshrined in the United Nations Charter and the law applicable in armed conflict which regulates the conduct of hostilities, together with any specific treaties on nuclear weapons that the Court might determine to be relevant: 1. The law on the use of force – rules when you can go to war, law on self-defence fits into here i.e. when a state wants to defend itself against an armed attack from another state. 2. The law of armed conflict – rules that apply when in war. The Law on the Use of Force What do Articles 2(4) and 51 of the UN Charter provide? (para 38) Article 2(4) – the threat or use of force against the territorial integrity or political independence of another State or in any other manner inconsistent with the purposes of the United Nations is prohibited. Article 51 – the Charter recognises the inherent right of individual or collective self-defence if an armed attach occurred. What are the two requirements of the law on self-defence? (para 41) The submission of the exercise of the right of self-defence to the conditions of necessity and proportionality is a rule of customary international law. There is a specific rule whereby self-defence would warrant only measures which are proportional to the armed attack and necessary to respond to it, a rule well established in customary international law. The dual condition applies equally to Article 51 of the Charter, what the means of force employed. What does the Court say about proportionality? (para 42, 43)? The proportionality principle may thus not in itself exclude the use of nuclear weapons in self-defence in all circumstance. But at the same time, a use of force that is proportionate under the law of self-defence must, in order to be


REZ ON INTERNATIONAL LAW lawful, also meet the requirements of the law applicable in armed conflict which comprise in particular the principles and rules of humanitarian law. The Court does not find it necessary to embark upon the quantification of such risks; nor does it need to enquire into the question whether tactical nuclear weapons exist which are sufficiently precise to limits those risks: it suffices for the Court to note that the very nature of all nuclear weapons and the profound risks associated therewith are further considerations to be borne in mind by States believing they can exercise nuclear response in self-defence in accordance with the requirements of proportionality. The Law of Armed Conflict What are the two issues here (identified in para 51)? 1.

The Court turns to look for a specific prohibition on nuclear weapons in the Law of Armed Conflict either in treaty law or in customary international law.

What are its findings so far as treaty law is concerned is paras 56, 58, 62 and 63, and, under customary international law, in paras 64, 67, 71? a. Treaties It does not seem to the Court that the use of nuclear weapons can be regarded as specifically prohibited on the basis of the relevant provisions in the Second Hague Declaration of 1899, the Regulations annexed to the Hague Convention IV of 1907 or the 1925 Protocol. The pattern until now has been for weapons of mass destruction to be declared illegal by specific instrument… the Court does not find any specific prohibition of recourse to nuclear weapons in treaties expressly prohibiting the use of certain weapons of mass destruction. In the last two decades, a great many negotiations have been conducted regarding nuclear weapons; they have not resulted in a treaty of general prohibition of the same kind as for bacteriological and chemical weapons. However, a number of specific treaties have been concluded in order to limit the acquisition, manufacture and possession of weapons, the deployment of nuclear weapons and the testing of nuclear weapons. The Court notes that the treaties dealing exclusively with acquisition, manufacture, possession, deployment and testing of nuclear weapons, without specifically addressing their threat or use, certainly point to an increasing concern in the international community with these weapons; the Court concludes from this that these treaties could therefore be seen as foreshadowing a future general prohibition by themselves. The Court does not consider current treaty laws as amounting to a comprehensive and universal conventional prohibition on the use, or the threat of use, of nuclear weapons. b. Customary International Law The Court will now turn to an examination of customary international law to determine whether a prohibition of the threat or use of nuclear weapons as such flows from that source of law. As the Court has stated, the substance of that law must be “looked for primarily in the actual practice and opinio juris of States.” Furthermore, the member of the international community are profoundly divided on the matter of whether nonrecourse to nuclear weapons over the past 50 years constitute the expression of an opinio juris. Under these circumstances the Court does not consider itself able to find that there is such an opinio juris. Examined in their totality, the General Assembly resolutions put before the Court declare that the use of nuclear weapons would be “a direct violation of the Charter of the United Nations”; and in certain formulations that such use “should be prohibited.” The focus of these resolutions under consideration in the present case have been adopted with substantial numbers of negative votes and abstentions; thus, although those resolutions are a clear sign of deep concern regarding the problem of nuclear weapons, they still fall short of establishing the existence of an opinio juris on the illegality of the use of such weapons. 2.

Then the Court turns to look for a general prohibition that might apply to the use of nuclear weapons in the law of armed conflict also known as international humanitarian law (IHL) (para 74).

What are the two cardinal principles of IHL? (para 78) The cardinal principles contained in the texts constituting the fabric of humanitarian law are the following. The first is aimed at the protection of the civilian population and civilian objects and establishes the distinction between combatants and non-combatants; States must never make civilians the object of attach and must consequently never use weapons that are incapable of distinguishing between civilian and military targets. According to the second principle, it is prohibited to cause unnecessary suffering to combatants: it is accordingly prohibited to cause weapons causing them such harm or uselessly aggravating their suffering. States do not have unlimited freedom of choice of means in the weapons they use. What is the Martens clause and what does it say? (para 78)? “In cases not covered by this Protocol or by other international agreements, civilians and combatants remain under the protection and authority of the principles of international law deprived from established custom, from the principles of humanity and from the dictates of public conscience.”



Does the Court consider the Martens clause to infer that any use of nuclear weapons would be illegal (paras 94-97 and para 105E). The Court would observe that none of the States advocating the legality of the use of nuclear weapons under certain circumstances.. has indicated what, supposing such limited was feasible, would be the precise circumstances justifying such use; nor whether such limited use would not tend to escalate into the all-out use of high yield nuclear weapons. This being so, the Court does not consider that it has a sufficient basis for a determination on the validity of this view. Nor can the Court make a determination on the validity of the view that the recourse to nuclear weapons would be illegal in any circumstances owing to the inherent and total incompatibility with the law applicable in armed conflict… In view of the unique characteristics of nuclear weapons, to which the Court has referred above, the use of such weapons in fact seems scarcely reconcilable with respect for such requirements. Nevertheless, the Court considers that it does not have sufficient elements to enable to conclude with certainty that the use of nuclear weapons would necessarily be at variance with the principles and rules of law applicable in armed conflict in any circumstance. The Court cannot lose sight of the fundamental right of every State to survival, and this its right to resort to self-defence, in accordance with Article 51 of the Charter, when its survival at stake. The Court is led to observe that it cannot reach a definitive conclusion as to the legality or illegality of the use of nuclear weapons by a State in an extreme circumstance of self-defence, in which its very survival would be at stake. It follows… that the threat or use of nuclear weapons would generally contrary to the rules of international law applicable in armed conflict, and in particular the principles and rules of humanitarian law. What was the outcome? (para 105E). In the view of the current state of international law, and of the elements of fact at its disposal, the Court cannot conclude definitively whether the threat or use of nuclear weapons would be lawful or unlawful in an extreme circumstance of self-defence, in which the very survival of a State would be at stake. How would you describe how the Court set about addressing the problem before it? What exactly did it do in the Opinion? Does the approach taken by the Court accord with the Lotus presumption? The approach taken was consistent with the Lotus Presumption. The court endeavoured to find prohibitions against the use and threat of nuclear weapons. There were prohibitions of a general nature against the use and threat of the nuclear weapon however no absolute prohibition and therefore the courts could not come to a definitive answer. Accordance with International Law of the Unilateral Declaration of Independence in Respect of Kosovo (Advisory Opinion) [2010] ICJ Reports Recently, there have been some who have questioned the binary approach reflected in the Lotus principle. The 2008 Kosovo declaration of independence was adopted on 17 February 2008 by individual of the Assembly of Kosovo. The Declaration of Independence declared Kosovo to be independent from Serbia. Serbia considered the Declaration illegal and the GA decided it would be helpful to ask the ICJ for an advisory opinion on the subject.  Issue: The question before the Court was: “Is the unilateral declaration of independence by the Provisional Institutions of Self-Government of Kosovo in accordance with international law?”  Law: When we see how the court handled this case, we see the Lotus Presumption at work again. Turns to various sources of law to decide the legality of Declarations of Independence. International customary law – finds no general prohibitions in state practice. Treaties – no prohibitions found. Right to determination outside of decolonisation – doctrine of remedial secession; no prohibition found here.  Concludes that Declaration of International did not violate general international law. NB: Judge Simma’s declaration (obiter dicta) Take issue on the Lotus Presumption – old, tired view on international law – in which prohibitions on states cannot be presumed. In contemporary international law, this approach is obsolete and leads to an unsatisfactorily conclusion. However, the orthodox position is that the Lotus Presumption applies

The law of treaties


The law of treaties The law of treaties is based on two foundational principles: 1. Treaties need to be based on the free consent of states 2. However, the freedom of states is not unlimited; once consent to be bound has been expressed and the treaty has entered into force, the treaty shall be kept by the parties in good faith – paca sunt servanda (Article 26 VLCT) Vienna Convention of the Law of Treaties 1969 This is a treaty about treaties, deals with the treatment and application of treaties. Has now well over 100 parties and came into force in 1980. Many of the provisions reflect customary international law. Examples of this are: - Interpretation - Material breach - Fundamental change in circumstances. Convention on Treaties between States and International Organisations or between International Organisations 1986 This is a separate convention that deals with treaties between states and international organisations. The content of the this treaty is similar to the VCLT. International organisations have sufficient legal personality to conclude treaties also Treaties Treaties, Charter, Covenants, Protocols and Conventions are legally binding. It is important to look at the wording of the documents to see whether the intent is to bind i.e. “parties shall”. In contrast to binding agreements, non-binding agreements are written in more aspirational e.g. negotiations may conclude a memorandum of understanding rather than a treaty. Treaties are binding legal agreements, they can be known by other names such as charter, convention or agreement. - Binding status can be determined by the language of the document, the name (i.e. treaty or convention), content that indicates intent to be bound. - A declaration etc. is not legally binding — contains aspirational language. - A memorandum of understanding is not an agreement — they are merely articulating a shared understanding, however these are usually not binding. Again, however one should assess the language and content to determine if this is the case. Article 2(1) - A treaty should be in written form – this is fundamental. Article 26 —Pacta Sun Servanda (a rule of customary international law) Every Treaty is binding upon the parties to it and must be performed by them in good faith. Article 27 – A party may not invoke the provisions of its internal law as justification for a future to perform a treaty

Conclusion Conclusion of a Treaty - The completion of negotiations and adoption of a treaty. Representation of the State in Treaty Actions Treaty actions =  Participating in the adoption of a treaty,  g a treaty,  Ratifying a treaty,  Withdrawing from or terminating a treaty.  A person carrying out these actions must have the authority to act on behalf of the state or require an instrument of full powers to establish authority to represent the State.  Certain individuals are not required to furnish evidence of their authority to represent their State. (Article 7(2)(a)) e.g. heads of state (the Queen), heads of government (the Prime Minister), and foreign ministers.  For adoption of treaty texts, the heads of diplomatic missions (ambassadors or high commissioners) and representatives accredited to international conferences can act without ing evidence of authority  But for any other treaty action these individuals would still require an instrument of Full Powers. NB: A signature to a treaty is usually expected to be followed by ratification. Consent to be Bound – when is a state actually bound to a treaty? How does a state express its consent to be bound?  A variety of means - Article 11

The law of treaties


Article 11. MEANS OF EXPRESSING CONSENT TO BE BOUND BY A TREATY The consent of a State to be bound by a treaty may be expressed by signature, exchange of instruments constituting a treaty, ratification, acceptance, approval or accession, or by any other means if so agreed.

Article 12. CONSENT TO BE BOUND BY A TREATY EXPRESSED BY SIGNATURE 1. The consent of a State to be bound by a treaty is expressed by the signature of its representative when: (a) The treaty provides that signature shall have that effect; (b) It is otherwise established that the negotiating States were agreed that signature should have that effect; or (c) The intention of the State to give that effect to the signature appears from the full powers of its representative or was expressed during the negotiation.

 Signature - Article 12(1) Effect of a Signature: A signature creates no obligation to ratify. However, a signature creates an obligation of good faith to refrain from acts calculated to frustrate the objects of the treaty (article 18).  E.g.US ung the Rome Statute of the International Criminal Court 1998. 

Ratification – Article 14 Article 14. CONSENT TO BE BOUND BY A TREATY EXPRESSED BY RATIFICATION, ACCEPTANCE OR APPROVAL 1. The consent of a State to be bound by a treaty is expressed by ratification when: (a) The treaty provides for such consent to be expressed by means of ratification; (b) It is otherwise established that the negotiating States were agreed that ratification should be required; (c) The representative of the State has signed the treaty subject to ratification; or (d) The intention of the State to sign the treaty subject to ratification appears from the full powers of its representative or was expressed during the negotiation. 2. The consent of a State to be bound by a treaty is expressed by acceptance or approval under conditions similar to those which apply to ratification

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Ratification is an international procedure, usually affected by the deposit of an instrument of ratification with the depository identified in the treaty. For a multilateral treaty; more likely to be a two-step process. First, signature and second, ratification which is when the state signifies its consent to be bound by the treaty. Ratification often means deposit an instrument of ratification.

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Accession - Article 15 Article 15. CONSENT TO BE BOUND BY A TREATY EXPRESSED BY ACCESSION The consent of a State to be bound by a treaty is expressed by accession when: (a) The treaty provides that such consent may be expressed by that State by means of accession; (b) It is otherwise established that the negotiating States were agreed that such consent may be expressed by that State by means of accession; or (c) All the parties have subsequently agreed that such consent may be expressed by that State by means of accession

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Accession may take place when a treaty is already in force, and takes the place of signature plus ratification. An alternative procedure to ratification. If the treaty is already in force, one skips the two-step process and merely sends a notice of accession to the depository.

Why is it useful to have a two-step process of signature and ratification? So that governments can consult with their internal governments. An even firmer reason is that so parliament can laws to be consistent with the treaty. In New Zealand, before we ratify a multilateral treaty or significant financial agreement, we table it in cabinet and goes to select committee to be reported to the House. Then, the executive branch will ratify which is an exercise of the royal prerogative under foreign affairs. What is the effect of signature if you sign and then decide not to ahead and ratify? Article 18 It seems that a state can make clear of their intentions not to ratify and remove their article 18 obligations.

The law of treaties


Entry into force Article 24(1): A treaty will enter into force on the specific in the treaty. Article 24. ENTRY INTO FORCE 1. A treaty enters into force in such manner and upon such date as it may provide or as the negotiating States may agree. 2. Failing any such provision or agreement, a treaty enters into force as soon as consent to be bound by the treaty has been established for all the negotiating States. 3. When the consent of a State to be bound by a treaty is established on a date after the treaty has come into force, the treaty enters into force for that State on that date, unless the treaty otherwise provides. 4. The provisions of a treaty regulating the authentication of its text, the establishment of the consent of States to be bound by the treaty, the manner or date of its entry into force, reservations, the functions of the depositary and other matters arising necessarily before

   

Each treaty will require a different number of ratifications in order to enter into force. E.g. VCLT required 35 ratifications to enter into force. E.g. Rome Statute for the International Criminal Court required 60 ratifications to enter into force. Treaties must be ed with the United Nations, Article 80 VCLT. This brings certainty and transparency to the international community and avoids secrecy in diplomacy.

Interpretation Article No. of VCLT

31(1)

31(2)

31(3) (a)

(b)

(c)

Provision A treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the of the treaty in their context and in the light of its object and purpose.” 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. There shall be taken into , together with the context: Any subsequent agreement between the parties regarding the interpretation of the treaty or the application of its provisions; Any subsequent practice in the application of the treaty which establishes the agreement of the parties regarding its interpretation; Any relevant rules of international law applicable in the relations between the parties.

Description *The Golden Rule*: This is always your starting point. This is a textual approach in that what matters is the text of the treaty over and above the intention and aim of the treaty, although these factors are important and come into the formula when we go to unpack it.

Context includes text (including preamble and annexes) as well as agreements or instruments made in connection with the treaty’s conclusion.

Also to be taken into are:

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Subsequent agreements on interpretation

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Subsequent practice in interpretation establishing agreement

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Any relevant rules of international law applicable in the relations between the parties. These could be rules from any of the sources of international law, eg customary international law. This sometimes called the principle of systemic integration; it is powerful to bring together different bodies of international law and interpret such law in light of each other. There is a big problem of fragmentation in international.

The law of treaties


Application Amendment Article 31(3)(c) E.g. Case concerning Oil Platforms (Iran v USA): the two areas of law that come together is a bilateral treaty of friendship between Iran and USA and the law on self-defence.  Facts: Iran took proceedings against the US after the US bombed Iranian platforms during the 1980-1988 Iran-Iraq war. The Court had jurisdiction under the parties’ bilateral 1955 Treaty of Amity, Economic Relations and Consular Rights  Law: The US invoked the security provision in Article X of this treaty: "The present Treaty shall not preclude the application of measures: (d) necessary to fulfil the obligations of a High Contracting Party for the maintenance or restoration of international peace and security, or necessary to protect its essential security interests." When the court went to apply this, using article 31(3)(c), it read the security provision in the light of the general international law rules concerning the use of force and self-defence.  Judgment: The Court found that as the US acts did not qualify as self-defence they were not protected by the security provision. Article 32: Supplementary means of interpretation: Resource may be had to supplementary means of interpretation including preparatory work of the treaty (travaux préparatoires) and circumstances of its conclusion, in order to confirm the meaning resulting from the application of Article 31 or to determine the meaning when the interpretation according to Article 31 (a) leaves the meaning ambiguous or obscure or (b) leads to a result that is manifestly absurd or unreasonable. ‘Travaux’ refers to the work that went into the creation of the treaty text i.e. the preparatory work/documentation. NB: Looking at the travaux moves us away from a textual approach and moves more towards looking at the aims and intentions of the parties involve i.e. teleological approach. This is particularly important when the text of the treaty just does not make sense. Treaties do not bind third party states.

Application  

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A later treaty prevails over an earlier treaty with the same subject matter, i.e. VCLT employs a lex posterior approach. However, this article allows escape from the usual lex posterior approach - Articles 30(3) and (4) VCLT: Application of successive treaties relating to the same subject-matter: 3. When all the parties to the earlier treaty are parties also to the later treaty but the earlier treaty is not terminated or suspended in operation under article 59, the earlier treaty applies only to the extent that its provisions are compatible with those of the later treaty. 4. When the parties to the later treaty do not include all the parties to the earlier one: (a) As between States parties to both treaties the same rule applies as in paragraph 3; (b) As between a State party to both treaties and a State party to only one of the treaties, the treaty to which both States are parties governs their mutual rights and obligations. In the event of conflict between the UN Charter and another international treaty, the Charter will prevail. Article 103 of the UN Charter: “In the event of a conflict between the obligations of the of the United Nations under the present Charter and their obligations under any other international agreement, their obligations under the present Charter shall prevail.”

Amendment

The law of treaties

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Article 39: General rule regarding amendment of treaties “A treaty may be amended by agreement between the parties. The rules laid down in Part II apply to such an agreement except in so far as the treaty may otherwise provide. Article 40: amendment of multilateral treaties: 1. Unless the treaty otherwise provides, the amendment of multilateral treaties shall be governed by the following paragraphs. 2. Any proposal to amend a multilateral treaty as between all the parties must be notified to all the contracting States, each one of which shall have the right to take part in: (a) The decision as to the action to be taken in regard to such proposal; (b) The negotiation and conclusion of any agreement for the amendment of the treaty. 3. Every State entitled to become a party to the treaty shall also be entitled to become a party to the treaty as amended. 4. The amending agreement does not bind any State already a party to the treaty which does not become a party to the amending agreement; article 30, paragraph 4(6), applies in relation to such State. 5. Any State which becomes a party to the treaty after the entry into force of the amending agreement shall, failing an expression of a different intention by that State: (a) be considered as a party to the treaty as amended; and (b) be considered as a party to the unamended treaty in relation to any party to the treaty not bound by the amending agreement. Treaties can also be modified when some of the parties conclude an agreement among themselves, as per Article 41.

Validity and Invalidity Grounds for the Invalidity of Treaties a. Provisions of Internal Law Regarding Competence to Conclude Treaties (Article 46) E.g. NZ House of Representative purports to ratify a treaty. Can constitutional limitations on the treat making power within states be invoked internationally as a basis for not being bound by a treaty? States will be bound unless there was a manifest irregularity. The idea of notorious irregularity. Consider the relationship between international and national law as you have seen in Article 27 VCLT that a state cannot invoke provisions of its internal as a reason for not complying with international law. In international law we are truly operating on a different plane and playing field, unless it is a manifest violation of internal law, a State will not get out of their breach. b. Lack of Authority on the Part of a Representative (Article 46) E.g. Cameroon v Nigeria [2002] ICJ Held: Nigeria to the treaty because it was the Head of State and regarded that they are in full capacity to consent on behalf of the state. c. 

Error (Article 48(1) and (2)) E.g. Temple of Preah Vihear, (Cambodia v Thailand)  Would not have been fair on Thailand to rely on error, similar to estoppel.

d. 

Fraud (Article 49) E.g. Permanent Court of Arbitration (PCA) instituted by East Timor against Australia concerning their 2006 Treaty on Certain Maritime Arrangements in the Timor Sea ? East Timor (formally Timor Leste) argues that the treaty is invalid because Australia was spying on East Timor during negotiations, allegedly using listening devices inserted by Australian intelligence services into the wall of Timor Leste’s negotiating room during an Australian aid programme for the renovation of government offices in Timor Leste. Timor Leste seems to be alleging bad faith on the part of Australia, and may argue Article 49. Timor Leste has also sought provisional measures from the ICJ in order to try and obtain documents seized by Australia in a raid on the Canberra offices of the lawyer representing Timor Leste in the PCA case.



  e. f.

Corruption of a State Representative (Article 50) Coercion of State Representative (Article 51) e.g. Blackmail or threat to his/her family

g.

Coercion of a State (Article 52)  It does not cover political and economic pressures and are found in varying degrees. During the conclusion of the Vienna Convention, Third World nations argued strongly for this to be added in however, this was unsuccessful. In of where these pressure may sit on a scale, it would be very difficult to prove this kind of coercion. However, the conference did adopt a declaration that did condemn political, economic or military coercion in the conclusion of treaties.

The law of treaties


h.

Conflict with Peremptory Norm of International law (peremptory norms or ‘jus Cogens’ which means ‘compelling law’ (Article 53)*

Article 53: ‘A treaty is void if, at the time of its conclusion, it conflicts with a peremptory norm of general international law. For the purposes of the present Convention, a peremptory norm of general international law is a norm accepted and recognized by the international community of States as a whole as a norm from which no derogation is permitted (you have to follow it) and which can be modified only by a subsequent norm of general international law having the same character (uncommon).’  Brownlie states that “A peremptory norm is a rule of customary international law “which cannot be set aside by treaty or acquiescence but only by the formation of a subsequent customary rule of contrary effect”.  There is a hierarchy of international law, jus Cogens is it at the pinnacle. There are few jus cogens. They include norms prohibiting: aggression, slavery, genocide or apartheid, massive pollution of the atmospheric or the seas, the use of threat of force. As well as norms protection fundamental human rights (in particular the rules banning racial discrimination or torture as well as the general rules on self-determination) and possibly fundamental principles of humanitarian law.  Jus cogens falls under the scope of customary international law. Jus cogens has remnants of natural law and a lower consensual threshold (no scope for persistent objection). If the international community as a whole agrees to a particular norm, there may be few states that object, however it would still be considered jus cogens. Arguably, still positivists because there are rules (see above to the test) to determine a jus cogens.  adheres very strongly to sovereignty and do not accept this non-consensual jus cogens concept. For this part, they are not a part of the Vienna Convention.  What is the effect of a treaty contrary to jus cogens? Article 53 - A treaty is void if, at the time of its conclusions, it conflicts with a peremptory norm of general international law. The rules regarding invalidity of treaties divide into two groups: 1. Those rendering a treaty voidable (Articles 46-50) - irregularity under internal law (must be manifest) - lack of authority on the part of a representative (must be notified) - error (state must not have contributed) - fraud - corruption 2. Those rendering a treaty void (Articles 51-53) - coercion of a representative - coercion of a State - conflict with jus cogens

Termination and withdrawal Article 54 sets down the general rule that termination or withdrawal may take place:  in conformity with the provisions of the treaty; or  at any time by the consent of all the parties after consultation with the other contracting States. In addition see Article 56(1) requiring that where there is no provision in the treaty for denunciation or withdrawal, withdrawal will only be permissible where (a) it is established that the parties intended to it the possibility of this or (b) a right of denunciation or withdrawal is implied by the nature of the treaty. Generally, you can take away from article 54 and 56 that you need the consent of the other parties to withdraw. But there are specific grounds for termination such as: a.

Material Breach of a Treaty (Article 60)  ‘ Material breach’ is a repudiation of the treaty not permitted by the Vienna Convention or violation of a provision of the treaty that is essential to the accomplishment of the treaty’s object and purpose: Article 60(3).  It is not the gravity of the breach that cunts but the importance of the provision breached. However this is unworkable in practice, tribunals conceptualise it as referring to grave breaches.  It recognised that some multilateral treaties have a public law character and cannot be reduced to bilateral sets of rights/obligations. It does so by granting all parties to treaty he right to at in response to a material breach. Under para 2 the other parties (not directly injured, so no the victims) may unanimously decide to terminate the treaty or suspend its operation in response to the breach.  The doctrine of material breach does not apply to provisions relating to the protection of the human person contained in treaties of a humanitarian character: Article 60(5).  E.g. Obstruction of Chemical Weapons Convention inspectors

The law of treaties

REZ ON INTERNATIONAL LAW b.

Supervening Impossibility of Performance (Article 61) E.g. submergence of an island Permanent disappearance or destruction of an object indispensable for the treaty’s execution (Article 61(2)). May not be invoked where the impossibility is the result of a breach by that party (Article 61(2))

c.

Fundamental Change of Circumstances: Rebus Sic Stantibus doctrine (Article 62) Suggests that treaties are only binding as long as they’re convenient. Courts are reluctant to apply it as it might open up a Pandora’s box. E.g. military and political alliance, exchange of military and intelligence information, change of government Article 62(1): -Three elements: a) The change must be unforeseen and: b) Existence of the circumstances must have constituted an essential basis of the parties’ consent to be bound; and c) The effect of the breach must be radically to transform the extent of the obligations still to be performed under the treaty. Only one case where it was upheld – decision of the CJEU in the Racke case found that EU lawfully suspended a free trade agreement with Yugoslavia upon outbreak of civil war as the circumstances underlying the treaty had been peace and stable state institutions which no longer applied. (However his is criticized as casting the net too wide.

d.

Conflict with a New Peremptory Norm (Article 64)  ‘If a new peremptory norm of general international law emerges, and existing treaty which is in conflict with that norm becomes void and terminates’.  Ius cogens have the highest status, then of equal value are: General Principles, Customary international law, Treaties, Unilateral Acts



Gabikova-Nagymaro’s Project  Facts: This is involved one of the big European rivers running through many countries. It has been the source of stories, trade and hydropower. Concerned section between Hungary and Slovakia. Building dams on the river. Concluded a bilateral treaty 1977 and agreed to build dams and locks on the river for navigation and source of hydro power. Work became suspended on the dam in 1980 by Hungary as seen as an environmental and political issue. Then work was abandoned on the project. However, Slovakia continued work alone. In particular, Slovakia unilaterally dammed and diverted the Danube river saying they were giving effect to the 1977 Treaty. Hungary declared that it was terminating the 1977 treaty. There is a dispute and takes it to the world court.  Issue: Whether Hungary had lawfully terminated the Treaty.  Law: Four grounds to terminate a treaty.  Impossibility of performance  Fundamental change of circumstances  Material breach by Czechoslovakia  Development of new norms of international environmental law Impossibility of performance – findings:  Recall the Article 61 of Vienna Convention tests: 61(1): impossibility must be due to the permanent disappearance or destruction of an object indispensable for the treaty’s execution.  Court did not decide whether this needs to be a physical object. It left open the possibility it could be a non-physical object such as that argued by Hungary: an economic t investment consistent with environmental protection.  Hungary argued it could be a legal situation that was the basis of the Treaty.  The Court finds that it is not necessary to determine whether the term "object" in Article 61 of the Vienna Convention can also be understood to embrace a legal regime as in any event, even if that were the case, it would have to conclude that in this instance that regime had not definitively ceased to exist as the 1977 Treaty allowed for adjustment to ecological imperatives.  The 1977 Treaty and in particular its Articles 15, 19 and 20 actually made available to the parties the necessary means to proceed at any time, by negotiation, to the required readjustments between economic imperatives and ecological imperatives.  Also, a State could not invoke impossibility of performance to terminate a treaty where it has produced this situation through its own conduct (paras 94 (Hungary’s argument), 102 (views of the Court)). Fundamental change of circumstances – findings:  Recall the Article 62 tests: 62(1)(a) the circumstances must have constituted an essential basis of the parties’ consent to be bound; and 62(1)(b) the effect of the change must be radically to transform the extent of the obligations still to be performed under the treaty.

The law of treaties

REZ ON INTERNATIONAL LAW  

   

Hungary listed a number of elements that had changed fundamentally including the notion of socialist integration, both States’ conversion to market economies and the treaty’s transformation into an environmental disaster. Court found that prevalent political conditions and economic systems were not so closely linked to the treaty’s object and purpose that they constituted an essential basis of the consent to be bound, and in changing radically altered the extent of the obligation to be performed. The same holds good for the economic system in force at the time of the conclusion of the 1977 Treaty. Nor does the Court consider the new developments in the state of environmental knowledge and of environmental law can be said to have been completely unforeseen. What is more, the formulation of Articles 15, 19 and 20 is designed to accommodate change The changed circumstances invoked by Hungary are thus, in the Court’s view, not of such a nature either collectively or individually, that their effect would radically transform the extent of the obligations still to be performed in order to accomplish the Project. And that would found the invocation of this doctrine of fundamental change of circumstances. (paras 95 (Hungary’s argument), 104 (views of the Court)).

Material breach. What 2 material breaches by the other party did Hungary invoke? a) That Slovakia had violated Articles 15, 19 and 20 of the Treaty by refusing to enter into negotiations with Hungary to adapt their implementation of the Treaty through their t Contractual Plan to new scientific and legal developments relating to the environment. b) Secondly and more centrally Hungary argued that Slovakia had committed a material breach by unilaterally damming the Danube under Variant C. Material breach – findings:  Recall the Article 60 of the Vienna Convention test: 60(3) material breach is defined as violation of a treaty provision essential to the accomplishment of a treaty’s object and purpose.  Violation of Articles 15, 19 and 20 of the Treaty: Failure to give effect to these obligations could not on the record be attributed solely to one party as the Court had not found sufficient evidence that Slovakia had consistently refused to consult with Hungary. (paras 96 (Hungary’s argument), 107 (views of the Court)).  There wasn’t evidence that it was just Slovakia.  The construction and putting into operation of “Variant C”: Court also rejected this argument, because at the time Hungary terminated the treaty Slovakia had not yet implemented Variant C, they had only undertaken preparations to do so. (paras 96 (Hungary’s argument), 108 (views of the Court)).  The Court pointed out that it had already found that Czechoslovakia violated the Treaty only when it diverted the waters of the Danube into the by canal in October 1992. In constructing the works which would lead to the putting into operation of Variant C, Czechoslovakia did not act unlawfully. In the Court's view, therefore, the notification of termination by Hungary on 19 May 1992 was premature. No breach of the Treaty by Czechoslovakia had yet taken place and consequently Hungary was not entitled to invoke any such breach of the Treaty as a ground for terminating it when it did.  Hungary terminated before the material breach actually took place. New environmental law norms – findings:  Recall Article 64 of the Vienna Convention which provides that the emergence of a new norm of ius cogens will mean that any treaty provision in conflict with it becomes void and terminates.  The Court noted that neither party asserted a new peremptory norm or rule of ius cogens had emerged since the conclusion of the 1977 Treaty and so it did not need to consider the scope of Article 64 VCLT.  The Court rejected Hungary’s argument that new requirements of international environmental law precluded performance of the treaty (such as the precautionary principle, which included an obligation to prevent harm).  However, the Court did point out to the parties that new norms of international environmental law would be relevant in the implementation of the Treaty and that the parties could, by agreement, incorporate them through the application of Articles 15, 19 and 20 of the Treaty (paras 97 (Hungary’s argument), 111-112 (views of the Court)).  These articles do not contain specific obligations of performance but require the parties, in carrying out their obligations to ensure that the quality of water in the Danube is not impaired and that nature is protected, to take new environmental norms into consideration when agreeing upon the means to be specified in the t Contractual Plan. By inserting these evolving provisions in the Treaty, the parties recognized the potential necessity to adapt the Project. Consequently, the Treaty is not static, and is open to adapt to emerging norms of international law. By means of Articles 15 and 19, new environmental norms can be incorporated in the t Contractual Plan. The awareness of the vulnerability of the environment and the recognition that environmental risks have to be assessed on a continuous basis have become much stronger in the years since the Treaty's conclusion. These new concerns have enhanced the relevance of Articles 15, 19 and 20. The Court recognizes that both Parties agree on the need to take environmental concerns seriously and to take the required precautionary measures, but they fundamentally disagree on the consequences this has for the t Project. In such a case, third-party involvement may be helpful and instrumental in finding a solution, provided each of the Parties is flexible in its position. 

Judgment: Finally, the Court is of the view that although it has found that both Hungary and Czechoslovakia failed to comply with their obligations under the 1977 Treaty, this reciprocal wrongful conduct did not bring the

The law of treaties


 

Treaty to an end nor justify its termination. In the light of the conclusions it has reached above, the Court finds that the notification of termination by Hungary of 19 May 1992 did not have the legal effect of terminating the 1977 Treaty and related instruments. Hungary had no lawful grounds for termination. The treaty survived. (para 115)The parties had to find an agreed solution within the framework of the Treaty. (paras 141-142) Note - the case is still open, as the parties have not managed to agree on a solution.

Reservations “A unilateral statement, however phrased or named, made by a State, when g, 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.” (Article 2(1)(d)). Two problems with reservations: a) There is no mechanism for routinely deciding when a reservation is valid. So this actually will only be decided authoritatively when it is a result of dispute when it comes before international courts. b) The international law relating to reservations doesn’t deal satisfactorily with the question of consequences of reservations, particularly invalid reservations. Reservations have a reciprocal effect. They apply to both states - Libyan People’s Bureau Incident of 1984 “searching the diplomatic bag”. E.G: Libya able to search diplomatic bag of another state with the consent of the state to whom the bags owner belongs  The UK did not object to this reservation.  Libya AND the UK could rely on this reservation. Not limited to Libya.  UK relied on the reciprocal effect of the reservation to search the diplomatic bags.  Resulted in the end of Diplomatic relations between the UK and Libya Examples of reservations to ICR–  NZ reserves the right to: mix of juveniles with adults in prisons, there is a policy reason for this. We are a small country etc.  Mauritania: Shariah law When is a reservation valid? (a) Pre WW2 - The principle of the absolute integrity of treaties. There used to be a unanimity rule that reservations would only be valid if the treaty permitted reservations and all the other parties accepted the reservation. The aim was to preserve the integrity of the treaty absolutely and avoid the “honeycomb effect”. (Shaw). Everybody is going to be bound by the same rules instead of having holes like “honeycomb” instead its like a block of wood. In 1948, issues arose about the Genocide Convention this lead to the Advisory Opinion. A number of states wanted to make a reservation about Article 9 which of the Genocide Convention governs the intervention of the ICJ over disputes of genocide. ICJ ruled that reservations to treaties should be deemed permissible so long as they were consistent with the object and purpose of the treaty concerned. The Ruling of the ICJ on the permissibility of the reservations gave birth to the “object and purpose” test: (b) The “object and purpose” test Advisory Opinion on Reservations to the Convention on the Prevention and Punishment of the Crime of Genocide, [1951] ICJ Rep 15: The Court found that “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 being a party to the Convention if the reservation is compatible with the object and purpose of the Convention”. So the test is softer than it previously was. Why have they softened the test? They wanted more parties to the Genocide Convention; they wanted to attract universal ratification if it was possible. “In casu, the outcome was easy to predict; the object and purpose of the Genocide Convention can plausibly be described as preventing and punishing the crime of genocide. While it might be usueful to employ the ICJ for purposes of enforcement, this is not thought to be absolutely pivotal; there might be other ways to enforce the convention, and indeed, the convention had high expectations of the role of domestic courts” (Klabbers) The test was then given form in the VCLT – Article 19 which governs the formulation of reservations. (c) The “object and purpose” test in the VCLT:

The law of treaties

REZ ON INTERNATIONAL LAW Vienna Convention on the Law of Treaties, exceptions to the liberty to formulate reservations in Article 19:  Article 19(a) reservations expressly prohibited in the treaty;  Article 19(b) where the treaty lists permissible reservations, any reservations that do not fall within the list;  Article 19(c) reservations incompatible with the object and purpose of the treaty. Article 19: Formulation of reservations A State may, when g, ratifying, accepting, approving or acceding to a treaty, formulate a reservation unless: (a) the reservation is prohibited by the treaty; (b) the treaty provides that only specified reservations, which do not include the reservation in question, may be made; or (c) in cases not falling under sub-paragraphs (a) and (b), the reservation is incompatible with the object and purpose of the treaty.

Article 20: Acceptance of and objection to reservations 1. A reservation expressly authorized by a treaty does not require any subsequent acceptance by the other contracting States unless the treaty so provides. 2. When it appears from the limited number of the negotiating States and the object and purpose of a treaty that the application of the treaty in its entirety between all the parties is an essential condition of the consent of each one to be bound by the treaty, a reservation requires acceptance by all the parties. 3. When a treaty is a constituent instrument of an international organization and unless it otherwise provides, a reservation requires the acceptance of the competent organ of that organization. 4. In cases not falling under the preceding paragraphs and unless the treaty otherwise provides: (a) acceptance by another contracting State of a reservation constitutes the reserving State a party to the treaty in relation to that other State if or when the treaty is in force for those States; (b) an objection by another contracting State to a reservation does not preclude the entry into force of the treaty as between the objecting and reserving States unless a contrary intention is definitely expressed by the objecting State; (c) an act expressing a State's consent to be bound by the treaty and containing a reservation is effective as soon as at least one other contracting State has accepted the reservation 5. For the purposes of paragraphs 2 and 4 and unless the treaty otherwise provides, a reservation is considered to have been accepted by a State if it shall have raised no objection to the reservation by the end of a period of twelve months after it was notified of the reservation or by the date on which it expressed its consent to be bound by the treaty, whichever is later.

The VCLT sketches four different sorts of responses in article 20: 1. The first of these is simply acceptance. A state can expressly accept a reservation made by another state. (Rare) 2. More common is the state remains silent. Perhaps it agrees with the reservation but feels no need to spell it out; or perhaps it never even gets around to properly investigating what it thinks of the proposed reservation. If a state remains silent, then 20(5) ascribes consent to its position; if a state does not react within 12 months, it is considered to have accepted the reservation. 3. More problematic is when states may object to a reservation but without wishing to jeopardise their treaty relations with the reserving state. VCLT determines that despite the objection, the relations between the two states will include the reservation. Reserving state gets what it wants. 4. If the treaty partner specifies that it does not accept a proposed reservation and does not wish to have treaty relations with the reserving state, only then does the reservation have no effect. The entire treaty remains without effect between those two states. However this is only plausible on the presumption that the treaty can be carved up into ever so many bilateral sets of rights and obligations. E.g. a multilateral treaty on extradition typically creates sets of bilateral relations between states A and B and A and C and B and C etc. This is far more problematic, however with treaties aiming to create a more or less unified regime; e.g. human rights treaties. Here something gets lost if its considered a bundle of bilateral relations or set of bilateral rights and obligations. As a result, states are reluctant to indicate that they wish to have no relations at all with a reserving state, even if they think the reservation is highly problematic.

The law of treaties

REZ ON INTERNATIONAL LAW a) So you have a reservation to Treaty by State A. B and C object. b) The treaty will be given effect between State A, B and C provided - Article 20(4)(b): neither of them expresses a contrary intention c) And the point in which State A will be considered a party to the treaty is - Article 20(4)(c): when at least one other State accepts A’s reservation (expressly or by remaining silent for 12 months).

Will the reservation have the legal effect that State A wants it to have?  Article 21(1)(a) a reservation modifies the provisions of the treaty for the reserving state  Article 21(1)(b) and for other parties in their relations with the reserving state (reciprocal modification)  Article 21(3) when a treaty comes into force between a reserving state and an objecting state, the provisions of the treaty to which the reservation relates do not apply as between those two States.  So, yes, the treaty could come into effect between A and B and between A and C, and between A and all the other treaty parties, with the provisions to which A has entered a reservation not applying. The VCLT regime on reservations is said to be titled in favour of the reserving state; reserving states can “get away with it” (Klabbers). This infuriated many Human Rights Commissions and other organisations as reserving states could just carve out parts of human rights. Can an invalid reservation be severed so that the reservation has no effect and the reserving state is regarded as consenting to the treaty as a whole?  The problem with this approach is that international law is about consent between states and can only be enforced with their consent. This is a highly nonconsensual outcome which undermines the notion of international law.  International law is based on states’ consent so you can’t force states to oblige with Treaties they don’t consent to. It would be highly nonconsensual. Restrictions to the Death Penalty 1984 23 ILM 320 Guatemala had a reservation, the American Court of Human Rights severed their reservation. - Criticised for being highly non-consensual. States are bound by that they did not intend or choose, with no option to reconsider their agreement to the treaty. E.g. Pakistan made a reservation of Article 40 of ICR which deals with reporting requirements. Human Rights Commission doesn’t accept their reservation, and sees them bound without the benefit of the reservation sending reminders about its reporting obligations The Human Rights Committee. It is an authoritative body. It is not a court, it is a treaty body. It is a body that can make a decision about the validity of reservations by applying the Article 19 of the VCLT test of object and purpose.  However, it wasn’t the first body to sever reservations.  Monitors the compliance of states to the treaty obligations  Receives reports and communications from states and individuals  Issues general comments, which elaborate on the interpretation of the articles within the treaties.  However, it has taken the view that it may determine the validity of reservations o Does so, based on the object and purpose test. Example: Swiss case.  Deals with right to a fair trial. The Swiss system allowed some judicial decisions to be made by istrative offices as opposed to Judges.  The committee considered the reservation invalid - considered the State bound by the treaty as it stood. International Law Commission (ILC) Guide to Practice on Reservations to Treaties 2011 Yearbook of the International Law Commission, 2011, vol. II, Part Two. The Guide deals with all kinds of treaties, not just human rights treaties. This is not law but recommended approach. Just proposed law – lex ferenda. (e.g. ILC Guide) verses lex lata. Para 3.1.5: “A reservation is incompatible with the object and purpose of the treaty if it effects an essential element of the treaty that is necessary to its general tenour, in such a way that the reservation impairs the raison d'être of the treaty.” Raison d'être: reason for existence Para 3.1.5.7:

The law of treaties

REZ ON INTERNATIONAL LAW “A reservation to a treaty provision concerning dispute settlement or the monitoring of the implementation of a treaty provision is not, in itself, incompatible with the object and purpose of the treaty, unless: (i) the reservation purports to exclude or modify the legal effect of a provision of the treaty essential to its raison d'être;

The ILC espouses the doctrine of severability: Para 4.5.3(2): “Unless the author of the invalid reservation has expressed a contrary intention or such an intention is otherwise established, it is considered a contracting State or a contracting organisation without the benefit of the reservation.”

The ILC addresses the issue of consensual participation in the treaty as follows: Para 4.5.3(3): “the author of an invalid reservation can at any time express its intention not to be bound by the treaty without the benefit of the reservation.”

“At any time” that is a wide clause; because normally when you want to exit a treaty, you have to follow all those rules about exiting a treaty. There is timeframe on this: Note that:  Para 4.5.3(4): when a treaty monitoring body expresses the view that a reservation is invalid para 4.5.3(4) gives a State or an international organisation making a reservation a period of 12 months to express its intention not to become bound by the treaty. Armed Activities on the Territory of the Congo (New Application: 2002) Case Rwanda) ICJ Rep 2006

(Democratic Republic of Congo v

Facts: The DRC is alleging that there has been armed aggression by Rwandan forces in the territory of the DRC which amounts to genocide. Both States are parties to the Genocide Convention. But Rwanda has a reservation to Article 9. The prohibition of genocide is a rule of ius cogens. Rwanda had a reservation to Article 9 of the Genocide Convention, which is the provision giving the ICJ jurisdiction over the interpretation, application and fulfilment of the Convention. On what basis did the DRC argue that this reservation was invalid? The DRC argued, inter alia, that the reservation was invalid because it prevented the ICJ from ruling on an alleged breach of a rule of ius cogens. Did the Court accept the DRC’s argument? What did the Court view as the relationship between peremptory norms of international law and the Court’s jurisdiction? No, the mere fact that rights and obligations erga omnes may be at issue in a dispute would not give the Court jurisdiction to entertain that dispute. The same applies to the relationship between peremptory norms of general international law (ius cogens) and the establishment of the Court’s jurisdiction: the fact that a dispute relates to compliant with a norm having such a character, cannot of itself provide a basis for the jurisdiction of the Court to entertain that dispute. Jurisdiction is always grounded on consent of the parties. In the light of that, was the Court prepared to view Rwanda’s reservation as incompatible with the object and purpose of the Convention? No. The Court cannot conclude that the reservation of Rwanda in question, which is meant to exclude a particular method of settling a dispute relating to the interpretation, application or fulfillment of the Convention, is to be regarded as being incompatible with the object and purpose of the Convention. Judge Higgins, Kooijmans, Elaraby, Owada and Simma gave a t separate opinion. Did they consider the Court to have an important role under the Convention? Yes, while it is States who monitor of each other’s compliance with the Convention, Article IX then gives the State who believes another State is committing genocide the chance to come to the Court. Article IX speaks not only of disputes over the interpretation and application of the Convention, but over the ‘fulfillment of the Convention’. Did they consider the matter of whether a reservation to Article IX was incompatible with the object and purpose of the Convention to be closed? (Para 29) It is thus not self-evident that a reservation to Article IX could not be regarded as incompatible with the object and purpose of the convention and we believe that this is a matter that the Court should revisit for further considerations. They’re tried to leave the door open. The weight of 5 judges may just be enough to do that.


To summarise: The ILC has staked out the middle ground which says invalid reservations may be severable. But taking into the whole concept of state sovereignty, that a reserving state should have the option of opting out of the treaty altogether if its reservations is going to be severed.

The subjects of international law


The subjects of international law 1. 2. 3. 4. 5. 6. 7. 8. 9. 10.

Objective and qualified personality Statehood and sovereignty The criteria of Statehood Recognition of States Extinction of Statehood State Succession Territories Under Trusteeship Decolonisation Self-determination Assessing the situation in Crimea

Statehood Objective and qualified personality 

Objective legal personality, e.g. States, entitled to be accepted as an international legal person.  All states have objective personality and get it from the system and because of this we call them the subjects of international law.  Also argued that some intergovernmental organisations e.g. UN have objective personality.



Qualified personality may be acquired through acceptance by other international legal persons, and may be limited to specific circumstances or capacities. E.g. may be acquired by treaty provisions and recognition or acquiescence.  Can get a degree of personality if it is conferred onto them by another personality i.e. under treaties or under practice of recognition  E.g. International Committee of the Red Cross, a private non-governmental organisation subject to Swiss law, was granted special functions under the 1949 Geneva Red Cross Conventions and has been accepted as being able to enter into international agreements under international law with international persons, such as with the EC under the World Food Programme.  But does not have objective legal personality  It has subjective personality divulged onto it by other personalities  Individuals can be subjected to responsibilities and duties but they don’t have objective legal personality

Statehood and sovereignty  States are sovereign. They are the only entities that have sovereignty in international law.  They do occasionally infringe one another’s sovereignty in various ways, and usually there is a protest, an explanation and an apology. E.g.:  Russian bombers flew over the airspace of Colombia in 2013;  2013 discovery that French agents had planned to kill an extremist cleric in London (Abu Hamza, based at the Finsbury Park Mosque).  The US National Security Agency conducted hacking operations across the world, including in China and Hong Kong.  The NSA had spied on EU offices in the US and Europe (as revealed by German magazine Der Spiegel) and 38 embassies and government missions (file leaked to The Guardian).  This is a clear infringement of sovereignty Montevideo Convention on Rights and Duties of States 1933 CRITERIA FOR STATEHOOD: “The State as a person of international law should possess the following qualifications: (a) a permanent populations; (b) a defined territory; (c) government; and (d) capacity to enter into relations with other States.”

 

A permanent population: No specified minimum number of inhabitants, e.g. Nauru with 12,000 people and Tuvalu with 10,000 people, this may still constitute a permanent population Does need to be a stable community Klabbers refers also to Monaco, Lichtenstein, Andorra and San Marino (Europe’s “ministates”).

  

A defined territory Consistent band of territory that is governed by the State. Klabbers calls it a ‘core territory’

 


REZ ON INTERNATIONAL LAW  

Can the ‘State of Palestine’ be regarded as a valid state? Cf Israel has been accepted as a State. What will be the effect of sea level changes on the requirement for a permanent population?

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Government Needs to have a political structure A coherent political structure, not necessarily a sophisticated apparatus Practice with regard to the new states of Croatia and Bosnia and Herzegovina emerging out of the former Yugoslavia (see on screen) shows the flexibility on the criteria of government, as they were permitted to be governments even though they didn’t have control of territories and there was essentially still a civil war going. Similarly with the Independence of the former Belgian Congo, now the Democratic Republic of the Congo, (DRC) on 30 June 1960 where there was a breakdown of government. Given there is no objective with compliance with the principles, Klabbers points out there is no difference or moral judgment with a nasty dictatorship and light democracies. Oppressive regimes should not be considered States (Klabbers) Difficulties with this proposal is who would make the decision as to where States were to be considered so oppressive that they ought to be excluded. This is subjective.

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Is compliance with the principle of self-determination also a criterion of statehood? EU Community Guidelines said they would look for these, but it is not inherent in the requirement for government.  The capacity to enter into relations with other States What about states that formally are independent but are dependent on aid? How independent must a State be? Does “ad hoc interference and advice” undermine Statehood? Delay in recognition e.g. Baltic States after 1990 Recognition of States: when new States are “recognized” by other States E.g.  Recognition of South Sudan by Sudan 2011  Recognition of Kosovo 2008  Recognition of South Ossetia and Abkhazia by Russia 2008 Does an entity that meets the criteria for being a state then become a State automatically as of right or does the entity need to be recognized as a state by other states?  Constitutive theory of recognition: ‘an entity has to be recognised as a state in order to attain the legal status of statehood’  Declaratory theory of recognition: ‘recognition of new states is not what creates their statehood, it merely accompanies their statehood’ Distinction between recognition of a new state and recognition of a new Government of an existing state  E.g. coup by George Speight in Fiji in 2000… Commonwealth countries refused to recognise the purported new Government of Fiji.  E.g. the US recognised the Somali Government in 2013 for the first time in 2 decades since US helicopters were shot down in 1993 over Mogadishu in the Black Hawk Down battle. (US forces were in Somalia in 1993 in conjunction with the UN, attempting to create an environment in which humanitarian aid could get in.) Extinction of statehood Extinction of statehood may take place for instance as a result of… 1. Dismembering of a prior State e.g. former Soviet Federal Republic of Yugoslavia 2. Merger with another state 3. Annexation   

1 January 1993, Dissolution of Czechoslovakia and establishment of the Czech Republic and of Slovakia. In December 1991, proclamation of the Commonwealth of Independent States… Union of Soviet Socialist Republics (USSR) ceased to exist. And what came into being was a whole lot of new states. USSR lasted from 1922 to 1991. 3 October 1990, Reunification of the German Democratic Republic and the Federal Republic of … previously separate prior states cease to exist. Post-War , the allied powers assumed supreme authority and was divided into four occupation zones, which then became two states from 1954 until 1990 when they unified through a treaty.

State Succession  E.g. The Russian Federation was accepted internationally as a continuation of the USSR.


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E.g. The Federal Republic of Yugoslavia (Serbia and Montenegro) (FRY) saw itself as the sole continuation of the former Soviet Federal Republic of Yugoslavia and wanted to hold the former state seat…but Croatia, Slovenia and Bosnia and Herzegovina also claimed to be successor States. International community didn’t recognise Serbia and Montenegro as the sole successor state thus they had to it to the UN as a new state.  In 2000 the Republic of Yugoslavia was eventually itted to the UN as a new state (i.e. because it could not occupy the seat of the former Yugoslavia).  Legality of the Use of Force cases, Judgments of 15 December 2004 (concerning the NATO bombing in the Kosovo crisis): ICJ held no jurisdiction in these cases on the basis that the FRY was not a UN member in 1999 and not a party to the Court’s Statute in 1999.

The situation in Scotland  An advisory referendum on Scottish independence will be held on 18 September 2014, with “should Scotland be an independent country”?  Would Scotland meet the criteria of Statehood?  Would the assertion of Scottish independence involve a breach of the UK’s territorial integrity and political unity? It is understood that independence would not be not opposed by the UK if the referendum produced an affirmative outcome.  Would Scotland be recognized by other countries?  Practical problems for Scotland … Scotland will not be regarded as a successor State for the purposes of EU hip, and would have to the EU as a new State. Spain has said it will block hip of the EU for Scotland. Why might this be?  Proposed referendum for Catalonia’s independence in November 2014, but Spain does not recognise it as legal.  NATO and EU have said they would exclude the new state of Catalonia.

Self-determination Article 1 ICR: ICESCR 1. All peoples have the right of self-determination. By virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development. 2. All peoples may, for their own ends, freely dispose of their natural wealth and resources without prejudice to any obligations arising out of international economic co-operation, based upon the principle of mutual benefit, and international law. In no case may a people be deprived of its own means of subsistence. 3. The States Parties to the present Covenant, including those having responsibility for the istration of NonSource of self-determination:  Customary international law (Article 38(1)(b) ICJ Statute)  Jus cogens i.e. preemptory norm under Art 52 VCLT  Treaty rule –ICR + ICESCR (Article 38 (1)(a) ICJ Statute)  Recognised in UN Charter  Recognised in cases – Western Sahara Advisory Opinion and East Timor Advisory Opinion (Article 38(1)(d) ICJ Statute)  Elaborated in HRC General Comment 12  Also General Assembly Resolutions 1514, 1541, 2625 (Friendly Relations Declaration) - not binging but these show opinio juris and state practice.  It has obligation erga omnes Territories Under Trusteeship 1. Post First World War “Mandate” system a “sacred trust of civilisation”… colonies of the defeated powers entrusted to ‘nations who by reason of their resources, their experience or their geographical position’ could undertake the responsibility. 2. Post Second World War United Nations trusteeship system (Chapters XII and XIII of the UN Charter).  E.g. South West Africa previously German) had been istered after the end of the First World War as a mandate by South Africa.  E.g. New Zealand was given Western Samoa (a former German colony) to look after.  A Trusteeship Council was established to oversee the trusts until territories reached self-determination, which was expected to involve self-government or independence.  E.g. Western Samoa became independent as Samoa in 1962. Decolonisation


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Wide-ranging state practice and opinio juris ing self-determination as a rule of customary international law of ius cogens status. Article 1(2) UN Charter noted as one of the UN’s purposes the development of friendly relations among nations based upon respect for the principle of the equal rights and self-determination of peoples, and Article 55 used the same language. Article 55, on Economic and Social Co-operation, instructs the United Nations to promote higher standards of living, solutions to health and cultural problems, and universal respect for human rights – all in order to create conditions necessary for peaceful and friendly relations among nations ‘based on equal rights and self-determination’.  This purpose is further developed in Articles 55 and 56, which have direct relevance for non-self governing territories which are dealt with in Chapter XI. This confirms and emphasises the application of the right of self-determination requires a free and genuine expression of the will of the peoples concerned.

Three UNGA Resolutions: 1514, 1541, 2625 UNGA Resolution 1514, adopted the Declaration on the Granting of Independence to Colonial Countries and Peoples, 1960, para 2 stating that: “All peoples have the right to self-determination; by virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development.” II. UNGA Resolution 1541, 1960, referred to possible options for non self-governing territories exercising their right to self-determination: (a) Emergence as a sovereign independent State; (b) Free association with an independent State (e.g. Cook Islands); (c) Integration with an independent State. I.

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UNGA Resolution 1541, adopted the 1970 Declaration on Principles of International Law Concerning Friendly Relations, stating inter alia that: ‘by virtue of the principle of equal rights and self-determination of peoples enshrined in the Charter of the United Nations, all peoples have the right freely to determine…their political status’ while all states are under the duty to respect this right in accordance with the Charter. N.B. ‘safeguard’ clause in the Friendly Relations Declaration: “Nothing in the foregoing paragraphs shall be construed as authorizing or encouraging any action which would dismember or impair, totally or in part, the territorial integrity or political unity of sovereign and independent States conducting themselves in compliance with the principle of equal rights and self-determination of peoples as described above and thus possessed of a government representing the whole people belonging to the territory without distinction as to race, creed or colour.”

Principle VII of resolution 1541 (XV) declares that: “free association should be the result of a free and voluntary choice by the Peoples of the territory concerned expressed through informed and democratic processes. IX –Integration should have come about in the following circumstances: (b) The integration should be the result of the freely expressed wishes of the territory’s peoples acting with the full knowledge of the change in their status, their wishes having been expressed through informed and democratic processes, impartially conducted and based on universal adult suffrage. The UN could when it deems necessary, supervise these processes. Western Sahara Case Advisory Opinion [1975] ICJ Rep 12  This case arose out of the decolonization of the Western Sahara, previously under Spanish control.  When it came time for a referendum of the population, both Morocco and Mauritania stepped in and tried to claim the Spanish Sahara.  The Court was asked by the UNGA for an Advisory Opinion on: 1. whether the Western Sahara was terra nullius at the time it was colonized by Spain. 2. the legal ties between the territory at that time and its neighbours, Morocco and the Mauritanian entity.  The Court stressed that the right of the people of the territory to self-determination constituted a basic assumption of the questions put to the Court.  The Court concluded that the right to self-determination and the application of Resolution 1514 (XV), the Colonial Declaration, in the decolonization of the territory were not affected by the various titles which had existed between Morocco and Mauritania and the territory of the Western Sahara during the relevant period of the 1880s East Timor (Portugal v Australia) [1995] ICJ Rep 90, 102  Facts: In 1975 Indonesian forces occupied East Timor and committed human rights violations there. Portugal was the colonial power in charge of East Timor at the time (on the way to decolonization) but did not step in. East Timor was on the UN’s decolonization list and remained there from the 1970s on, while continuing to be run by Indonesia.  The 1995 case came about after the conclusion of a treaty between Australia and Indonesia concerning the delimitation of the continental shelf between Australia and East Timor.  Portugal objected to Australia entering the treaty with Indonesia, inter alia, because it infringed the right to selfdetermination of the East Timorese people.



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 Indonesia was not a party to the case. The Court held that it could not decide this case in the absence of Indonesia, as Indonesia’s rights and obligations would have been affected by any judgment of the Court (the “Monetary Gold” principle). However the Court observed that: “For the two Parties, the territory of East Timor remains a non-self-governing territory and its people has the right to self-determination.” Subsequently this right to self-determination was exercised and the new State of Timor L’Este came into being in 2002. The also Court declared that ‘Portugal’s assertion that the right of peoples to self-determination, as it evolved from the Charter and from United Nations practice, has an erga omnes character, is irreproachable’.

Obligations erga omnes are obligations owed to the international community as a whole…  An obligation erga omnes will arise where the importance of a right is such that all States can be held to have a legal interest in its protection.  So Portugal was saying that because all States have standing to assert the breach of the right to self-determination, the Court had jurisdiction to hear the claim in the absence of Indonesia.  The Court accepted that respect for the principle of self-determination is an obligation erga omnes.  But the Court rejected the argument that this meant it had jurisdiction to hear the claim in the absence of Indonesia. Examples of decolonisation …  E.g. In 1965 the Cook Islands, a British protectorate since 1888, which had been governed from NS since 1901…. became self-governing in free association with NZ.  NZ can still act for the Cook Islands in foreign relations and defence if they wish us to.  that the governing principle of self-determination allows for free choice of the population as to its future status... Shaw says that… “The principle of self-determination provides that the people of the unit in question may freely determine their own political status. Such determination may result in independence, integration with a neighbouring state, free association with an independent state or any other political status freely decided upon by the people concerned.’ Self-determination in international law today  ICR, Article 1.  ICESCR, Article 1.  UN Human Rights Committee, General Comment 12

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The right of self-determination is of particular importance because its realisation is an essential condition for the effective guarantee and observance of individual human rights and for the promotion and strengthening of those rights. Higgins emphasises that the right remains an ongoing one. It is not only at the moment of independence from colonial rule that peoples are entitled freely to pursue their economic, social, and cultural development. I.e. it is a constant entitlement. With this goes the view that the “people” entitled to self-determination is the whole people of the State. Communications procedure under the First Optional Protocol to the ICR is for communications by individuals about breaches of rights in the Covenant.

Indigenous peoples’ self-determination  The Declaration on the Rights of Indigenous Peoples (DRIP) does recognise a right of self-determination for indigenous peoples. Article 3.  See also Article 4…”Indigenous peoples, in exercising their right to self-determination, have the right to autonomy or self-government in matters relating to their internal and local affairs, as well as ways and means for financing their autonomous functions.  Many provisions of DRIP connect with self-determination in a broad sense.  See also Article 46 language preserving the territorial integrity and political unity of States where indigenous people live. Reference re Secession of Quebec, [1998] 2 S.C.R. 217 (SC of Canada)  ‘International law expects that the right to self-determination will be exercised by peoples within the framework of existing sovereign states and consistently with the maintenance of the territorial integrity of those states’.  The Court’s main finding was that Quebec had no right to secede from Canada.  However, as seen in the remarks of the SC of Canada, should such secession prove successful in fact, then the concepts of recognition and the appropriate criteria of statehood would prove relevant and determinative as to the new situation.


REZ ON INTERNATIONAL LAW The choice of language is important – no right, no positive entitlement. But if it took place, and Quebec said we are independent, would other states recognise it? Would it meet the objective criteria? If it ticked both those boxes then it would become an independent State. Does international law recognise a right to self-determination where this will affect a State’s territorial integrity and political unity? Article 46 – Drip importance of territorial integrity “Remedial secession” – if there is mistreatment to a certain limit, could be entitled to secession. Secession = separation from a state When Crimea seceded from the Ukraine and became part of Russia, could this have been an exercise of the right to self determination? Consider  UN Charter, Friendly Relations Declaration  Self-determination in context of decolonisation: Resolution 1514, Resolution 1541  ICR, ICESCR, HRC General Comment 12 Putins Speech: Appeared to represent that Crimea was/ ought to have been part of Russia and thus the secession was merely a formality. Argued that the Russians in Crimea were being mistreated by the Ukraine Difficulty is when it will impede on sovereignty or have an impact on the territorial/ political unity of the parent state. Does international law recognise a right to self-determination where this will affect a State’s territorial integrity and political unity?  No right to self-determination if territorial integrity or political unity of the State would be impaired, provided the State is conducting itself in accordance with the principle of self-determination and is thus possessed of a government representing the whole people of the State…FRD Savings Clause; ICR according to the Human Rights Committee; Judge Higgins; Reference re Secession of Quebec [1998]  i.e. it may be permissible for the exercise of the right to self-determination to affect a State’s territorial integrity and political unity if that State does not have a government that can be considered to represent the whole people of the State When can the right to determination be asserted when it involves affects on a state’s territorial integrity and political unity? Would Crimea’s declaration of independence have been legal as a matter of international law if we set aside all matters relating to the Russian presence in Crimea? Consider the Kosovo Advisory Opinion:  Declarations of independence can be evaluated on a case by case basis to see if there is any applicable prohibition. If there is no prohibition, the Declaration is not illegal under international law…although it might be illegal under national law. If Crimea had wished to remain an independent country rather than ing the Russian Federation, could it have become a State?  Consider the Canadian Supreme Court's remarks on the reference in relation to Quebec's secession: whether or not a new state emerges will depend on:  compliance with the criteria for Statehood (objective criteria); and  the recognition of the international community (subjective) Some subscribe to the view that Statehood is an objective criteria whereas some believe it is subjective as to whether other states recognise it. Consider the situation in relation to northern Cyprus which shows us that there has to be some recognition/ The response of the International Community = See the UNGA Resolution on Crimea States that the referendum was not valid s the notion that the Ukraine should remain territorially whole Status of Declarations of Independence in International Law Would Crimea’s declaration of independence have been legal if we set aside all matters relating to Russian presence in Crimea? Go back to the Kosovo opinion No prohibition found that prevented Kosovo from declaring their independence Unless positive law prohibits it, declarations are legal


REZ ON INTERNATIONAL LAW Could argue that what has occurred in Crimea is the same as Kosovo - however the difference here is Russian military involvement in Crimea which brings in the issues of threat of use of force. Northern Cyprus:  Cyprus, under British istration since 1878, became independent in 1960. The population was mixed Turkish and Greek, more Greek in the south and Turkish in the north.  In exercising self-determination they contemplated “enosis” with Greece, but decided against it.  A Constitution was adopted in 1960, envisaging a Federal Republic of Cyprus covering the whole of the island of Cyprus, but a troubled history ensured.  In 1974, following a coup backed by the Greek military regime…  …Turkish forces invaded the island, and took over territory where the Turkish Cypriot population lived in the north (as we discussed when we looked at the Loizidou case when we studied reservations to treaties).  The Security Council called upon all states to respect the sovereignty, independence and territorial integrity of Cyprus and demanded an immediate end to foreign military intervention in the island that was contrary to such respect. UNSC Resolution 353 (1974).  On 13 February 1975 the ‘Turkish Federated State of Cyprus’ was proclaimed in the area occupied by Turkish forces, and would potentially have become a unit within the overall Federal Republic of Cyprus envisaged in 1960. This did not eventuate.  On 15 November 1983, the Turkish Cypriots proclaimed their independence as the ‘Turkish Republic of Northern Cyprus’. It is recognized only by Turkey.  This declaration, consolidating a situation created in violation of the prohibition on the threat or use of force, was declared illegal by the Security Council. All states were requested not to recognize the ‘purported state’ or assist it in any way.  Taking this into , as well as its heavy dependence on Turkey, the ‘Turkish Republic of Northern Cyprus’ cannot be considered a State.  Its status is said to be that of ‘a de facto istered entity within the recognised confines of the Republic of Cyprus and dependent upon Turkish assistance’. Emergence of a new State If Crimea had become an independent country, as Scotland may wish to do, could it have become a State? Consider the criteria for statehood, Consider SC of Canada - Should such secession prove effective, in fact, despite the prior illegalities, if there was recognition that was widespread and compliance with the objective criteria of statehood, that would be determinative and relevant. What is debatable is whether enough recognition would be made considering the strength of the Russian presence and military involvement.

Crimea Background on Crimea • Population 2.2m of which 1.5m are Russian • Formed part of Russia for two centuries but was transferred to Ukraine in 1954 at the time when both Russia and Ukraine were part of the same entity, mega state, the USSR • So maybe it was not foreseen that USSR would dissolve and Ukraine would end up with Crimea as a separate State. • Russian Black Sea Fleet has been based in Sevastopol in Crimea since it was established in 1783 (by agreement since 1954) • Crimea is a great strategic point for Russia, thus it is such crucial importance EVENTS SINCE NOVEMBER 2013 • November 2013: unrest in Ukraine after President Viktor Yanukovych abandons deal with EU in favour of closer ties to Russia • December 2013: Protestors occupy Kiev’s city hall and Independence Square. That met with violence • February 2014: demonstrations against the President continue, popular unrest is met with violence, 88 killed by state forces. • February 2014: President flees to Russia. (Ukraine has begun procedures to seek his extradition, wanted on suspicion of mass murder) • Late February 2014: Russia increases volume of troops already present in Crimea under Black Sea Status of Forces agreement. Russia takes control of Crimea, confining the Crimean marines and air force to their bases. • March: Crimea is fully under Russian control. Russia prevents international monitors from entering across the border from the rest of Ukraine. • A proposed UN Security Council Resolution is tabled at an emergency meeting calling for all nations to respect Ukraine’s territorial integrity and condemning as illegal a proposed referendum of the Crimean people. Vetoed by Russia. China abstains (media believes this is a success as China usually vetoes with Russia, they tend to have similar policy beliefs but this time it just abstained)



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This means that UN could not adopt the resolution Ukraine is not on the Security Council but they are permitted to participate, and the President of the Security Council (currently Luxemborg) invites others who are not currently for example New Zealand also.

Sunday 16 March 2014: referendum held in Crimea with a claimed 82% participation, they were asked the following two questions: Are you in favour of the Autonomous Republic of Crimea reuniting with Russia as a constituent part of the Russian Federation? Are you in favour of restoring the Constitution of the Republic of Crimea of 1992 and of Crimea’s status as part of Ukraine?  The reported outcome is a 96% vote in favour of ing Russia.  It was not externally monitored; the monitors were Russian.  The referendum is being called unconstitutional and illegal under international law Monday 17 March 2014: Crimean Parliament declares independence from Ukraine and asks to the Russian Federation. Crimean independence recognized by decree by President Putin of Russia. Wednesday 19 March 2014: President Putin requests Russian Parliament to bring into Russian constitutional law the creation of two new entities within the Russian Federation: the Republic of Crimea and the city of Sevastopol. And to ratify the treaty itting those two new entities to the Russian Federation. Friday 28 March: fireworks celebrations were held in Crimea and Moscow to celebrate. Ukrainian interim President Turchynov does not accept the situation. When the Crimean Parliament decided to hold the referendum, he annulled that decision. An arrest warrant was issued for the speaker of the Crimean Parliament. EU and US have responded with increasingly serious sanctions on trade and on Russian officials.

US Proposal announced on 29 March 2014  The White House said in a statement that the US was keen to de-escalate the crisis  Offers a "diplomatic off-ramp”  Developed in consultation with Ukraine and several EU countries  Proposes: 1. Halting the military build-up near Ukraine's border, 2. The deployment of international monitors in eastern Ukraine to protect the rights of Russian speakers; and 3. The return of Russian troops in Crimea to their bases there.  Result so far: standoff

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Russia is proposing that Ukraine adopt a federal structure. Why is the EU taking such a strong stance? Ukraine and Crimea as potential trading partners. Ukraine was turning away from the EU and away from Russia. So, for the EU Ukraine is important economically.

UPDATE: April and May 2014  40 000 Russian troops remain stationed on Russian border with Ukraine (despite repeated statements that some of them are being withdrawn).  Sanctions are biting: Russia is propping up the rouble  Early April 2014 - In Donetsk and Luhansk in the east insurgents have taken over government buildings and Ukrainian armed forces have taken back the intelligence service building and television tower.  Mid April 2014 - Violence in Mariopol, Ukrainian Black Sea por; 3 pro-Russian activities killed, 13 injured, 60 + detained.  Early May 2014 - Violence in Odessa, on the Black Sea. 32 pro-Russian protestors die in a fire in a building.  11 May 2014 - Referenda in Donetsk and Luhansk: Declaration of Donetsk People’s Republic and Luhansk People’s Republic.  24 May 2014 these two purported republics are said to have signed a bilateral treaty proclaiming their merger into a new State called “New Russia” (Novorossiya).  They say they will not participate in the Ukrainian Presidential election on 25 May.  25 May 2014 Ukrainian Presidential election (despite disruptions to high proportion of polling stations in the East, with alleged Russian involvement). Crimea’s Declaration of Independence: Set aside the issue of Russian presence - Like Kosovo, there is no prohibition to declarations of independence. Russian involvement gives rise to use of force issues. Statehood and self-determination: Look at the required criteria.

The individual in international law

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What about the territorial integrity of Ukraine Is there a government that represents all? Rebut a right to self-determination/ separate statehood. Recognition: is Russia enough?

The individual in international law The rise of human rights Traditional theory that only states are subjects of the law (now plus international organisations). Concern for the human being / natural law origins of international law. Individuals increasingly recognised as participants in international law. Status of individuals in international law is bound up with rise in human rights. Link between the state and the individual Traditionally:  Individuals rely on States to take up their claims =“Diplomatic Protection”. Individuals lack standing. Today:  Today several treaties do provide for individuals to have direct access to international courts and tribunals. E.g.  European Convention on Human Rights, 1950;  European Communities treaties, 1957;  Optional Protocol to the International Covenant on Civil and Political Rights, 1966;  Convention on the Settlement of Investment Disputes, 1965. International criminal responsibility An individual can be held responsible for international criminal acts. Distinguishes between the responsibility of the person AND the state.         

Charter of the Nuremberg tribunal, annexed to the Agreement for the Prosecution and Punishment of the Major War Criminals, 1945: individual responsibility for crimes against peace, war crimes and crimes against humanity. Individual responsibility for grave breaches of the four 1949 Geneva Red Cross Conventions and 1977 Additional Protocols I and II dealing with armed conflicts. Rome Statute of the International Criminal Court in 1998, EIF 2002, Article 25: a person committing a crime within the jurisdiction of the court shall be individually responsible. Prosecutor can initiate an investigation on the basis of a referral from any State Party Or from the United Nations Security Council (as we will see in UNSC Resolution 1970 on Libya). Prosecutor can also initiate investigations proprio motu on the basis of information on crimes within the jurisdiction of the Court received from individuals or organisations (“communications”). Also International Criminal Tribunal for the former Yugoslavia (ICTY); International Criminal Tribunal for Rwanda (ICTR) Sierra Leone Special Court established under agreement between UN and Sierra Leone in January 2002 pursuant to a UNSC Resolution eg prosecution of Charles Taylor.

The law of responsibility


The law of responsibility Based on two foundational principles: 1. States can be held responsible for acts that are attributable to them 2. States can only be held responsible for internationally wrongful acts i.e. acts that are somehow committed in violation of an international obligation incumbent on the state

Basic principles a) Primary and secondary rules  HLA Hart: international law = a primitive or simple form of social structure lacking secondary rules.  Primary rules (specifying standards of behaviour)  Secondary rules (rules for identifying and developing primary rules). Hart, The Concept of Law, 1961 Secondary rules in international law today:  the rules regarding treaties found in the Vienna Convention on the Law of Treaties, 1969;  the law of state responsibility as reflected in the International Law Commission’s Articles on State Responsibility, 2001. “It is now generally acknowledged that a distinction can be made between:  ‘primary rules’ of international law, that is, those customary or treaty rules laying down substantive obligations for States (treatment of foreigners, respect for the territorial sovereignty of other States, etc)…and  ‘secondary rules’, that is, rules establishing (i) the conditions on which a breach of a ‘primary rule’ may be held to have occurred and (ii) the legal consequences of this breach.” Cassesse (p 244) b) The law on the treatment of aliens  Customary rules on the legal consequences of wrongful acts were “lumped together” historically with the substantive rules governing State behaviour, especially with the customary rules concerning the treatment of foreigners.  Reason: the customary international law rules on State responsibility crystallised as a result of disputes concerning the treatment of nationals of industrialised States in non-industrialised countries (e.g. Latin American countries).  The injured citizen’s national State takes up a claim under international law against another State in the interests of the national. This is called “Diplomatic Protection”.  E.g. a claim that the other State has not acted consistently with the customary international law requirement for compensation in cases where aliens’ property is expropriated  The standard for compensation commonly applied is the Hull formula, named after U.S. Secretary of State Cordell Hull: "prompt, adequate and effective” compensation c)   

Work done on the law of State responsibility 1924 – 30, League of Nations, codification attempt Codification Conference in The Hague 1930: disagreement The International Law Commission ILC worked on State Responsibility 1953-2001

You will recall the ILC fulfils the General Assembly’s function under Article 13 of the Charter to: ‘initiate studies and make recommendations for the purpose of … encouraging the progressive development of international law and its codification’ Results of ILC work: 1. Law of State responsibility “unfastened” from the substantive rules on the treatment of foreigners


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Notion of fault set aside > simple rule that wrongful act creates responsibility Cassesse adds that two forms or categories of State ability are reflected in the ILC’s work:

Responsibility for ‘ordinary’ breaches of international law:  “Responsibility for breaches of … rules protecting reciprocal interests of States (economic and commercial relations, the reciprocal treatment of nationals and of consuls or diplomats, etc.).”  These rules might be found in bilateral treaties, but could be in multilateral treaties, or customary international law.  Here “The consequences of any breach of any such rule …remains a … matter between the two States.”

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‘Responsibility ‘for violations of some fundamental general rules that enshrine essential values’: “Responsibility for violations of fundamental general rules that enshrine essential values … arises when a State violates a general rule laying down a ‘community obligation’ Will there be a convention (ie treaty) on State responsibility in due course? GA Res 56/83 of 12 December 2001, A/RES/56/83 GA Res 65/19 of 10 January 2011, A/RES/65/19.d … decided to examine further the question of a convention on State responsibility, using a working group of the Sixth Committee of the General Assembly, and to address this subject again in three years’ time at its 68th session i.e. in 2013 GA Res 68/104 of 16 December 2013 A/RES/68/104…’acknowledged that a growing number of decisions by international courts, tribunals and other bodies referred to the draft articles on responsibility of States for internationally wrongful acts. It requested the Secretary-General to update the compilation of such decisions and invite Governments to submit information on their practice in that regard.’ (UN summary)

(d) General Principles in the ILC Articles on State Responsibility Article 1 Responsibility of a state for its internationally wrongful acts “Every internationally wrongful act of a State entails the international responsibility of that State”. Article 2 Elements of an internationally wrongful act of a State There is an internationally wrongful act of a State when conduct consisting of an action or omission:  Is attributable to the State under international law; and  Constitutes a breach of an international obligation of the State Article 3 Characterisation of an act of State as internationally wrongful Irrelevant that act may be lawful under national law

Attribution

(or imputability) ‘States can only act by and through their agents and representatives.’ German Settlers in Poland Case, Advisory Opinion, 1923 P.C.I.J. (ser. B) No. 6 (Sept. 10) c.f. Private conduct not attributable to the State. A state will be held responsible fort the acts of its organs and officials even those who act outside their proper competences (ultra vires). Article 4 Conduct of organs of a State 1. The conduct of any State organ shall be considered an act of that State under international law, whether the organ exercises legislative, executive, judicial or any other functions, whatever position it holds in the organization of the State, and whatever its character as an organ of the central government or of a territorial unit of the State.  de jure organ of a State: where the State’s internal law establishes that an agency is an organ of the State (see Article 4(2)  de facto organ of the State: where persons, groups or entities act in “complete dependence” on the State. (Bosnia and Herzegovina v Serbia and Montenegro) [2007] ICJ Reports 43  

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Genocide case (Bosnia and Herzegovina v Serbia and Montenegro): Facts: massacre at Srebrenica mid 1995 The Court ordered provisional measures in April 1993 and reaffirmed them after fuller proceedings in September 1993. The Court found at the provisional measures stage that the Genocide Convention appeared to afford a basis for jurisdiction to address the merits. These provisional measures ordered the FRY to take all measures within its power to prevent the crime of genocide. Subsequently the FRY contested jurisdiction, unsuccessfully. Those who carried out the action at Srebrenica were:  Bosnian Serbs including in the VRS (Army of the Republika Srpska) led by General Mladić, and  Paramilitary (non governmental) units including:  the Scorpions,  the Red Berets,



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 the Tigers and  the White Eagles. Held: genocide had taken place at Srebrenica But these acts of genocide were not attributable to Serbia (para 415) Not attributable under Article 4 of the ILC Articles. Nothing to justify the view that the perpetrators were organs (whether de jure or de facto) of the FRY (paras 385-395) Not attributable under Article 8 of the ILC Articles, as FRY did not have “effective control” of the actors (paras 396-415) (we will look at Article 8 below) Held however that: Serbia could be and was held responsible for violation of the obligation to prevent the genocide (paras 425-438) Serbia was responsible for the failure to comply with its obligation to punish genocide, (paras 439-450) specifically through non-cooperation with the ICTY, especially by not handing over General Mladic. (findings on failure to prevent and punish are not relevant to our study on attribution) Had the army of the FRY taken part in the massacre? (Para 386) No. The VRS and the Scorpions had taken part in the massacre  were the acts of the VRS (paras 387-388) or the Scorpions (para 389) attributable under Article 4 to the FRY on the basis they were de jure organs of the FRY? No.  were the acts of the VRS (para 394) or the Scorpions (para 395) attributable under Article 4 to the FRY on the basis they were de facto organs of the FRY? No.  …..so their acts were not attributable to Serbia under Article 4

Article 5 Conduct of persons or entities exercising elements of governmental authority E.g. Rainbow Warrior Arbitration (New Zealand v ) [1990] 82 ILR 499: French security agents who blew up the Rainbow Warrior in Auckland Harbour, New Zealand in 1985. These agents were acknowledged by the French Prime Minister to have acted on orders from the French State; President Mitterand ‘fully accepted that the act was unlawful and engaged the international responsibility of ’ Article 7: Excess of authority or contravention of instructions. Acts ultra vires Officials’ acts are attributable to the State when they act in their official capacity. Note that:  a state is responsible even for the ultra vires acts of its servants i.e. even when they acted beyond their powers.  Also the state will be responsible even if its servants act clearly beyond their orders. 

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This used to be subject to the qualification that it was necessary that the officials had acted at least to all appearances as competent officials or organs, and had used powers or methods appropriate to their official capacity Caire Claim ( v. Mexico) (1929) 5 R.I.A.A. 516 Shaw concludes that the approach in the draft articles is probably the correct one: “the ILC test is whether the individual “acted in the capacity” in which he or she was empowered to exercise governmental authority.’

Article 8 Conduct directed or controlled by a State Acts of persons directed or controlled by a State will be considered acts of the State. Two competing tests:  ‘overall control’ (looser), international criminal courts;  and ‘effective control’ (tighter, ICJ). Military and Paramilitary Activities (Nicaragua v USA) (Merits), ICJ Reports (1986), 14.  In its judgment of the merits, the Court had to look at issues of state responsibility for acts of persons not their servants and not organs of state. (paras 75-125 of Judgment).  Here the relationship in question was that between the US and the contras (contra-revolucionarios).  ‘For the conduct to give rise to legal responsibility of the US, it would in part have to be proved that that state had effective control of the military or para-military operations in the course of which the alleged violations were committed’.  The Court looked at whether: 1. they were paid or financed by a State, 2. their action had been coordinated and supervised by that State, and 3. the State had issued specific instructions concerning each of their unlawful actions.  Found no clear evidence of such degree of control (para 277), although the contras were partially dependent on the USA: their leaders were selected by the US and the US was involved in their training, equipping, planning, choice of targets, etc.  Accordingly, the US was not responsible for the contras’ alleged violations of international humanitarian law (IHL).  However, the US had breached certain other rules of international law by its own actions including:


REZ ON INTERNATIONAL LAW Intervention: By financial , training, supply of weapons, intelligence, logistical for the contras: the US intended to coerce Nicaragua, and so the US had breached the obligation under customary international law not to intervene in the affairs of another State. Use of force: By assistance to contras and by attacking ports, oil installations, and mining operations, the US had breached the obligation under customary international law not to use force against another State.

Prosecutor v. Tadić (Judgment), (Merits (ICTY) Appeals Chamber, 15 July 1999), 38 ILM 1518  Appeals Chamber had to establish whether individuals (Bosnian Serbs) fighting a prima facie civil war (between Bosnian Serbs and the central authorities in Bosnia and Herzegovina) had in fact acted on behalf of a foreign country (the Federal Republic of Yugoslavia (Serbia and Montenegro)), thus turning the civil conflict into an international armed conflict.  crimes.  So question whether Bosnian Serbs had acted on behalf of Serbia was central.  Found the Nicaragua test ‘unconvincing’.  Elaborated the overall control test: In the case of armed groups or militarily organised groups, whether they are under the overall control of a State.  Held that the Bosnian Serbs had acted on behalf of Serbia and Montenegro, so the acts in question had taken place in an international armed conflict. So was there a fragmentation of the law on imputability here..? How do the two tests differ? Arguably, “overall control” is a looser test, and may be appropriate to assess when there is an international armed conflict. But a tighter test is appropriate for working out when acts are attributable to a State and the State should be responsible for those acts under the law on State responsibility. The commentary to the ILC draft Articles sought to reconcile the two views, noting that Nicaragua concerned State responsibility while Tadic was an international criminal law case that did not concern State responsibility, but rather the interpretation of IHL. Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v Uganda) [2006] ICJ Rep 168  ICJ affirmed ‘effective control’ test. Genocide case (Bosnia and Herzegovina v Yugoslavia (Serbia and Montenegro)) Judgment of 26 February 2007 (paras 396-415)  , BH recounted acts committed in BH since 1992 which BH contended amounted to genocide under the Genocide Convention, and which BH said had been committed by former of the (Yugoslavia People’s Army), and by Serb military and paramilitary forces for which the FRY was fully responsible under international law.  First, as we saw above, the Court considered the application of Article 4 of the ILC Articles. There was nothing to justify the view that the perpetrators were organs of the FRY.  Then the Court considered the application of Article 8 of the ILC Articles.  ICJ again applied the ‘effective control’ test.  Found that there was some evidence of influence, but not of effective control over the perpetrators.  Evidence showed that Belgrade (capital of the FRY and of Serbia) was aware of the intended attack on Srebrenica, but not that operations were coordinated with Belgrade.  ICJ follows Military and Paramilitary Actvities in Nicaragua  Distinguishes Tadic on the basis that it did not deal with State responsibility and the overall control test adopted by the ICTY was unsuitable for the purposes of state responsibility, although it may have been of use in determining whether the conflict in Yugoslavia was in fact an international conflict.  Overall control stretches too far, even a fairly slender connection could suffice. Article 11 Conduct acknowledged and adopted by a State as its own Case Concerning United States Diplomatic and Consular Staff in Tehran (USA v. Iran), [1980] ICJ Rep 3, 30.  Facts: In the Iran hostage crisis of 1979-1981 after the overthrow of the Shah of Iran, 66 Americans were held hostage by Iranian revolutionaries in the US embassy in Tehran, 52 of them for 444 days (see 30 seconds of clip)  Shah travelled to the US for cancer treatment at the Mayo Clinic and among other factors this raised tensions and fears among the Iranian population about continued US influence in Iran.  The seizure of the US embassy was precipitated and led to the hostage crisis.  An attempted rescue mission by the US failed, with 2 aircraft destroyed and several soldiers killed.  The hostages were eventually released on the day that Ronald Reagan replaced Jimmy Carter as US President.  Issue: Was the Iranian militants’ attack on the US embassy and consular premises in Tehran attributable to Iran?  Court divided the attack into two phases First stage:


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Carried out by militants with no official status…armed attack on the US Embassy by militants of 4 November 1979, the overrunning of its premises, the seizure of its inmates as hostages, the appropriation of its property and archives Actions of the militants not attributable to Iran Second stage: Once takeover of building was complete, Iranian authorities including religious, judicial, executive, police, broadcasting authorities and the Ayatollah Khomeini expressed their approval. Above all, the Ayatollah Khomeini himself made crystal clear the State’s endorsement. As Klabbers says, he applauded it as a means for exercising pressure on the US.(p 128). Actions of the militants became attributable to Iran, they became agents of the Iranian State.

Article 10 Conduct of an insurrectional or other movement  Conduct of an insurrectional movement that becomes the new Government of a State is to be considered an act of that State.  Not applicable in the US Hostages Case. Revolutionary Guards never became the new government. Breach  Article 12: “There is a breach of an international obligation by a State when an act of the State is not in conformity with what is required of it by that obligation, regardless of its origin or character.”  Note also Article 13: there will only be a breach if the State is bound by the obligation at the time the act occurs.

Circumstances precluding wrongfulness Circumstances precluding wrongfulness do not annul or terminate the obligation. They provide a justification or excuse for non-performance (while the circumstances remain).      

Article 20 Consent Article 21 Self-defence Article 22 Countermeasures Article 23 Force majeure Article 24 Distress Article 25 Necessity

Article 20 Consent Valid consent precludes the wrongfulness of an act. E.g. consent to:  Station foreign troops on national territory;  Allow foreign aircraft to cross a State’s airspace;  Authorize a foreign State to fish;  Or drill for oil in territorial waters.  Consent is not valid for activities contrary to jus cogens (such as consent for armed forces to enter the territory to massacre a specific ethnic group). Article 21 Self-defence Self-defence precludes the wrongfulness of an act.  We already know that Article 51 of the Charter of the United Nations preserves a State’s “inherent right” of selfdefence in the face of an armed attack and forms part of the definition of the obligation to refrain from the threat or use of force laid down in Article 2(4).  The right to self-defence clearly forms part of the primary law on the use of force.  Under the rubric in the ILC articles, self-defence can also be applied as a secondary rule precluding State responsibility as well as being applied as a primary rule.  But if self-defence is going to be invoked in relation to the use of force against another State, then the issue needs to be resolved by determining the legality of this action under the primary law rather than getting to the stage of trying to argue that its wrongfulness is precluded under the secondary law of State responsibility. Advisory Opinion on the Construction of a Wall [2004] ICJ Rep 136.  Note also that the ILC rule would not be applicable as a defence to the violation of international humanitarian law or human rights obligations.  So it is difficult to imagine circumstances in which the secondary rule of self defence might be invoked.  But an example might be for example if you destroyed cultural heritage in your own territory, in breach of the UNESCO World Heritage Convention, as part of defending yourself against an armed attack. Article 22 Countermeasures in respect of an internationally wrongful act If an act is a countermeasure, this precludes the wrongfulness of the act. A countermeasure is an act that breaches an international legal obligation that is carried out in order to induce another party to cease its breach of an international legal obligation and provide reparation. Articles 49-54 govern countermeasures. Article 49 defines a countermeasure by its objects and limits.


REZ ON INTERNATIONAL LAW To qualify, countermeasures:  must be proportionate (Article 51).  must be preceded by a demand by the injured State that the responsible State comply with its obligations, Article 52(1)(a).  must be generally accompanied by an offer to negotiate, Article 52(1)(b) but see 52(2).  must be suspended if the internationally wrongful act has ceased and the dispute is submitted in good faith to a court or tribunal with the authority to make decisions binding on the parties, Article 52(3). Examples of the requirement of proportionality:  In the Air Services Arbitration of 1978 United States v - refused to allow a change of gauge in London for flights from the US West Coast. This breached the US- Air Services Agreement. As a countermeasure the US suspended all Air flights to LA. The Arbitral Tribunal found this to be a proportionate countermeasure. Naulilaa Case 2 RIAA 1011 (1928) decided by Special Arbitral Tribunal  Facts: Germans had colonised SW Africa (Namibia). Portuguese had colonised Angola.  1914 German forces enter Angola to meet Portuguese for negotiations on food imports and postal services.  Bad misunderstanding in Naulilaa port, 3 x German officers killed.  German troops sent in to undertake reprisal.  Held: had violated international law because:  Portugal had not been in breach to begin with, although the Naulilaa incident was deplorable;  had not requested peaceful settlement first;  had used excessive force out of proportion to what the Portuguese had done. Note that: 1. Use of force used to be permitted. Now countermeasures have to be non-forceful. Article 50. 2. The purpose for which countermeasures was permitted has changed. They used to have a more reactive, even punitive character. They are now permitted only to bring about an end to a breach of law by the other party, and provide reparation for injury. Article 49. Article 23 Force majeure Force majeure precludes the wrongfulness of an act.  the act in question must be brought about by an irresistible force or an unforeseen event.  which is beyond the control of the State concerned, and  which makes it materially impossible in the circumstances to perform the obligation. E.g. where to damage or loss of control of the aircraft due to weather forces a State aircraft into the airspace of another State without permission  Force majeure differs from a situation of distress (article 24) or necessity (article 25) because the conduct of the State which would otherwise be internationally wrongful is involuntary or at least involves no element of free choice. Article 24 Distress Distress precludes the wrongfulness of an act.  where an individual whose acts are attributable to the State is in a situation of peril, either personally or in relation to persons under his or her care. Alternative course of action exist but would demand sacrifice of the actor (Klabbers)  in circumstances where the agent had no other reasonable way of saving their lives.  Unlike force majeure this plea applies where a person is not acting involuntarily. E.g. in December 1975 British naval vessels entered Icelandic territorial waters seeking “shelter from severe weather”. Article 25 Necessity Necessity precludes the wrongfulness of an act. The most ‘political’ ground as it justifies behaviour that would otherwise be wrongful as necessary to protect vital state interest.  Applies where an act contrary to its international law obligations is the only way a State can safeguard an essential interest threatened by a grave and imminent peril.  Again, In contrast with force majeure this plea applies where conduct is not involuntary.  In contrast with distress, necessity involves not a danger to the lives of individuals in the charge of a State official, but a grave danger either to the essential interests of the State or of the international community as a whole.  The conduct concerned must be relatively harmless towards the state to which the obligation is owed or international community as a whole.   

Caroline case 29 B.F.S.P. 1137-1138; 30 B.F.S.P. 195-196 Facts: Incident in 1937 Frequently referred to as an instance of self-defence, but really involved the plea of necessity. British armed forces went into United States territory. Destroyed the “Caroline”, a vessel owned by American citizens. Burnt it and sent it over Niagara falls.


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They did this because the vessel had been being used to carry recruits and supplies to Canadian insurgents. The US protested. British representative Fox referred to the “necessity of self-defence and self-preservation”. Secretary of State Webster: “nothing less than a clear and absolute necessity can afford grounds of justification” for the commission “of hostile acts within the territory of a Power at Peace”… And famously said the British Government must prove that the action of its forces has really been caused by “a necessity of self-defence, instant, overwhelming, leaving no choice of means, and no moment for deliberation”. Incident eventually closed in 1842, with an exchange of letters. The Governments agreed that “a strong overpowering necessity may arise” requiring suspension of the great principle (of respect for territorial sovereignty).” “Russian Fur Seals” controversy, 1893 “essential interest” for protection against “grave and imminent peril” = the natural environment in an area beyond national jurisdiction. Russian government issued a decree to prohibit sealing in part of the high seas, to protect the fur seal population from extermination. Russian Minister for Foreign Affairs explained the: “absolute necessity of immediate provisional measures” given the hunting season was imminent. Torrey Canyon 1967 Liberian oil tanker ran aground off Britain on the high seas. Rough seas made salvage difficult. The UK bombed the ship to open the cargo tanks and burn the oil inside, to avoid damage to the British and French coasts and the marine environment. The British invoked necessity. Necessity is a controversial doctrine. It is an exceptional plea. Article 25 is cast in negative language (“Necessity may not be invoked … unless …”).

Can necessity justify humanitarian intervention? The commentary to the ILC principles says that the question of whether forcible humanitarian intervention, not sanctioned pursuant to Chapters VII or VIII of the Charter of the United Nations, may be lawful under modern international law is not answered by article 25 and remains a question of primary international law. Essential interest? Peril –grave and imminent, no other means.   

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Case Concerning the Gabcikovo-Nagymaros Project) (Hungary/Slovakia) [1997] ICJ Rep 7 State of necessity does not belong to the law of treaties, it is not a ground to terminate a treaty (see para 101 of the judgment). But it may be invoked as a circumstance precluding wrongfulness to exonerate a state for responsibility for failure to implement a treaty. It does not terminate a Treaty; the Treaty may be ineffective as long as the condition of necessity continues to exist; but unless parties by agreement terminate the Treaty – it continues to exist. Once state of necessity ceases to exist, the duty to comply with treaty revives. In the Gabčikovo-Nagymaros case Hungary argued that responsibility for the breach of its bilateral treaty was precluded by virtue of the existence of a state of ‘ecological necessity’. Judgment: What did the Court say about this? The Court accepted that Hungary’s concerns for its natural environment constituted an ‘essential interest’ of the State. However, the Court was unable to find that there was a grave and ‘imminent’ ‘peril’ to this interest. The peril claimed by Hungary was long term in character and that it ‘more importantly, remained uncertain’. And there were other means available to Hungary to address the situation, including discharging gravel into the river and controlling the distribution of water in the old and new river channels. Similarly in Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory (Advisory Opinion) [2004] ICJ Rep 136 Israel could not rely on necessity because the Court was not persuaded that construction of the wall along the chosen route was the only way to safeguard Israel’s interests. Argentinian investment treaty arbitrations: Will a financial crisis of the dimensions experienced by Argentina in 2001 justify economic measures in breach of bilateral investment treaties as a matter of necessity?

Article 26 Compliance with peremptory norms (Wrongfulness of non-compliance not precluded for breach of peremptory norms)


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i.e. you cannot rely on circumstances precluding wrongfulness in case of breach of a peremptory norm/rule of ius cogens

Article 27 Consequences of invoking a circumstance precluding wrongfulness… Invocation of a circumstance precluding wrongfulness is without prejudice to: (a) compliance when the circumstance no longer subsists; (b) compensation for

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Legal consequences of a wrongful act Remedies Article 28 Consequences of the Wrongful Act A State’s international responsibility for its wrongful acts involves the legal consequences set out in the articles to follow. Article 29 Continued Duty of Performance These legal consequences do not affect the responsible State’s continued duty to perform the obligation breached. Article 30 Cessation and Non Repetition The responsible State is under an obligation: (a) to cease the wrongful act (if it is continuing) (b) to offer assurances and guarantees of non-repetition if the circumstances require E.g. Case Concerning United States Diplomatic and Consular Staff in Tehran (United States of America v. Iran), [1980] ICJ Rep 3: Iran was immediately to take all steps to redress the crisis situation, including immediately terminating the unlawful detention of the hostages, and must make reparation to the US Government Article 31 Reparation 1. The responsible State is under an obligation to make full reparation for the injury caused by the internationally wrongful act. 2. Injury includes any damage caused by the wrongful State (material or moral). Moral damage is e.g. in Rainbow Warrior: there was minimum material damage, but the outrage was the moral injury to the state of New Zealand. Reparation for Injury: Article 34 Forms of reparation: restitution, compensation, satisfaction. Article 35 Restitution – Replacing or restoring the damaged vessel. To put the situation back as it would have been, had the events not occurred (status quo ante). The main form of reparation. Not to punish but to repair. The responsible State is under an obligation to make restitution i.e. to re-establish the situation existing before the wrongful act was committed Factory at Chorzow, PCIJ Series A No 17 47. (a) to the extent this is not materially impossible, and (b) to the extent this does not involve a burden out of all proportion to the benefit derived from restitution rather than compensation. Spanish Zone of Morocco Claims (Great Britain v. Spain) [1924 ] 2 R.I.A.A. 61: Spain was to give Britain ‘the usufruct for a consular residence’ that was to be ‘as convenient’ as the destroyed house Article 36 Compensation – Speaks for itself, it is monetary. This is not seen as regularly in international law as it is in domestic. The responsible State is under an obligation to compensate for damage caused, so far as it is not made good by restitution. “To address the actual losses incurred as a result of the internationally wrongful act” (Crawford).  Compensation covers any financially assessable damage including loss of profit.  Not about punishment.  E.g. US apologised to and compensated China for accidentally bombing the Chinese Embassy in Belgrade, believing it to be a Yugoslav building that was a military target, during the bombing of the FRY in 1999. Also paid $28M compensation to China, and $4.5 to families. Article 37 Satisfaction – making good of a situation usually through some form of acknowledgement. E.g.if apologized to New Zealand, New Zealand would be satisfied. “may consist in an acknowledgement of the breach, an expression of regret, a formal apology or another appropriate modality”. It is about balancing the dignity of a State, the moral damage.


REZ ON INTERNATIONAL LAW A wrong causing moral damage might be redressed by satisfaction. 1. The responsible State is under an obligation to give satisfaction for an injury so far as it cannot be made good by restitution or compensation. 2. Could take the form of: acknowledgment of breach/expression of regret/formal apology 3. Not to be out of proportion to the injury, nor humiliating to the responsible State.  E.g. 2001 US apology to China for entry into airspace by military aircraft.

Article 40 sets the scope of Article 41. It says that Article 41 applies where international responsibility is generated by: a serious breach of an obligation under a peremptory norm Breach is serious when it involves: gross or systematic failure to fulfill the obligation The Commentary to the Articles says: “systematic = carried out in an organised and deliberate way gross = denotes “violations of a flagrant nature, amounting to a direct and outright assault on the values protected by the rule” Article 41: 1. States shall cooperate to bring to an end through lawful means a serious breach under Article 40; 2. No State is to recognise as lawful a situation created by a serious breach; nor render aid or assistance in maintaining it. Case Concerning the Gabcikovo-Nagymaros Project  The Court suggested that they just work it out between them and agreed that they both caused harm to the other so both owed each other. They both owed each other compensation, which balanced out. Bosnia and Herzegovina v Serbia and Montenegro  Compensation, satisfaction and assurances of non-repetition were sought in connection with the breach of the obligation to prevent genocide, punish genocide and in connection with the breach of the Court’s provisional measure orders.  Satisfaction was granted in the form of a declaration. Legal consequences of the Construction of a Wall in the Occupied Palestinian Territory (Advisory Opinion) [2004] ICJ Rep 136.  Issue: The question the GA put to the ICJ in this case was: “What are the legal consequences arising from the construction of the wall?”  Judgment: On the substance of the question before it, the Court found, by fourteen votes to one, with Judge Buergenthal voting against the majority: the construction of the wall being built by Israel, the occupying Power, in the Occupied Palestinian Territory, including in and around East Jerusalem, and its associated régime, are contrary to international law.  Specifically, the Israel was breaching:  International humanitarian law  Civil and political rights  Economic, social and cultural rights and  The right to self-determination.  The applicable human rights included:  Freedom of movement (Article 12 ICR)  Rights to work, health, education and an adequate standard of living (Articles 6, 7, 11, 12, 13, 14 ICESCR and Articles 16, 24, 27, 28 UNCROC)  What were the legal consequences of the construction of the wall as identified by the Court in its Advisory Opinion? The ICJ found that:  Israel was under an obligation to terminate its breaches of international law, ceasing construction of the wall, dismantling the structure and repealing relevant legislation and regulations;  Israel was obliged to make reparation for all damage caused by restitution and, where this is not possible, by compensation;  The UN (the GA and UNSC) was recommended to consider what further action was required to bring to an end the illegal situation (also relates to Article 41).  ICJ said that all States were under an obligation no to recognise the illegal situation arising from the construction of the Wall, and not to render and or assistance in maintaining the situation.  This is all consistent with Article 41 of the ILC article on the consequences of a serious breach of obligations under a peremptory norm of international law (here the right to self-determination and fundamental principles on international humanitarian law)  However the ICJ preferred to view these legal consequences as following from the character of the relevant rules (the right to self-determination and applicable rules of IHL applicable in armed conflict) as obligations erga omnes.


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The Court didn’t link that set of consequences to the status of the rules in question as preemptory norms or jus cogens. When the court was looking at the rules breached, the court was looking at a completely different rule of erga omnes. (As seen in the East Timor case). It is almost as though the court is not comfortable with preemptory norms and instead looks at obligation erga omnes as it may hold more promise for the future of international community.

Invocation of responsibility Invocation of the Responsibility of a State Basic concept is that of the injured state - whose rights have been denied or impacted by an international wrongful act. An invocation of responsibility could consist for example in raising a claim against the allegedly wrongdoing State, or commencing proceedings in an international court or tribunal.  Article 42 deals with invocation of responsibility by an injured State. The definition of “injured State” is implicit in this provision.  Article 48 deals with the invocation of responsibility by a State other than an injured State. The effect of Article 48 is to further help protect shared interests under international law. “The emergence in the world community of values (peace, human rights, self-determination of peoples) deemed of universal significance and not derogable by States in their private transactions has led many States to believe that gross infringements of such values must perforce require a stronger reaction than those normally taken in response to violations of bilateral legal relations.” Cassesse 200-211 Invocation of the Responsibility of a State by an injured State Article 42 Invocation of responsibility by an injured State A State is entitled, as an injured State to invoke the responsibility of another State if the obligation breached is owed to: (a) that State individually; or (b) a group of States including that State, or the international community as a whole, and the breach of obligation: (i) Specially affects that State; or (ii) Is of such character as radically to change the position of all other States to which the obligation is owed with respect to the further performance of the obligation. Article 42(a): examples of where an obligation is owed to a State individually:  Obligations under a bilateral treaty, or  Obligations under a multilateral treaty,  e.g. the obligation between New Zealand and the UK under the Vienna Convention on Diplomatic Relations to protect each other’s diplomatic missions.  Klabbers calls the situation where an obligation is owed to a State individually a dyadic form of treaty relations. 

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Article 42(b) examples of where an obligation is owed to a group of States: the ILC also envisages that some obligations in multilateral treaties are by their nature owed to groups of States, such as the obligation under Article 194 of the LOSC 1982 not to pollute the oceans, or obligations under the Antarctic Treaty 1959. Under Article 42(b)(i) States could invoke the responsibility of the polluting State under UNCLOS as injured States if they were “specially affected” by a breach. E.g. an oil spill Under Article 42(b)(ii) States would be entitled to invoke the responsibility of the offending State as injured States when the breach was of such a character as radically to change the position of all the States to whom the obligation is owed. E.g. the Antarctic Treaty 1959 or a disarmament treaty.

Invocation of responsibility: by a State other than an injured State Article 48 Invocation of responsibility by a State other than an injured State 1. Any State other than an injured State is entitled to invoke the responsibility of another State in accordance with paragraph 2 if: (a) the obligation breached is owed to a group of States including that State, and is established for the protection of a collective interest of the group; or (b)the obligation breached is owed to the international community as a whole. Article 48(1)(a) obligations are known as obligations erga omnes partes (obligations between all parties to a treaty). examples include:… obligations under a regional nuclear free zone treaty (such as the South Pacific Nuclear Free Zone Treaty (Treaty of Rarotonga) 1985 …or a regional system for human rights protection.


REZ ON INTERNATIONAL LAW In both these examples the obligation in question is owed to a group of States, and is established for the protection of a collective interest of the group. Article 48(1)(b) obligations are known as obligations erga omnes (owed to all states in the international community). This is a broader category than obligations erga omnes partes which is obligations owed to all parties Obligations erga omnes arise where the importance of a right is such that all States can be held to have a legal interest in its protection. Dictum in (Barcelona Traction) [1970] Examples include norms prohibiting:  aggression  slavery,  genocide,  apartheid;  the right to self-determination, East Timor case ; Legal consequences of the Construction of a Wall in the Occupied Palestinian Territory (Advisory Opinion)  certain rules of IHL Legal consequences of the Construction of a Wall in the Occupied Palestinian Territory. – consequences of breach of an erga omnes obligation; all states are under an obligation not to render aid or assistance to the wrongdoing state, and to ensure compliance by wrongdoing state. Do the remedies differ where responsibility is invoked by a State other than an injured State? Under Article 48(2) States invoking responsibility under Article 48 can claim cessation, assurances and guarantees of non-repetition and performance of the obligation, or can claim reparation, but only in the interests of the injured State or beneficiaries of the obligation breached. An uninjured state is unlikely to seek compensation or restitution for themselves.  E.g. South West Africa (Liberia v. South Africa); South West Africa (Ethiopia v. South Africa) (Second Phase) (Judgment) [1966] ICJ Rep 6 – sought only declarations of the legal position, i.e. whether South Africa was in breach of the Mandate Agreement in SW Africa  Note that countermeasures may be taken by an injured State as defined in Article 42.  Article 54 indicates that a State entitled to invoke responsibility other than as an injured State may also be entitled to adopt countermeasures.  E.g. The ILC commentary to Article 54 gives the examples of trade embargos adopted following Argentina’s invasion of the Falkland Islands in 1982 and Iraq’s invasion of Kuwait in 1990. Mostly international law is about Art 42, little use of the Art 48 option. In practice, Cassesse observes with a note of realism and resignation, there is actually “scant invocation of responsibility under Article 48, which he calls ‘aggravated responsibility’”. “States still cling to the idea that they should take action in international dealings primarily to protect their own interests. They are bent on shunning any meddling with matters they are not of direct concern to them. As a consequence, they are inclined to invoke State responsibility principally when they are materially or morally injured by another State.” Criticism: The ide of allowing any state (not just directly injured state) to intervene in order to stop gross injustices retains a strongly seductive element (Klabbers). Countermeasures are the continuation of the use of force by other means. Larger or stronger states can use countermeasures more easily than smaller states. Koskenniemi suggests such a wide avenue for countermeasures may open the door for the great powers to establish a domination in the name of community values. Self defence, necessity and countermeasures merely allow retribution and use of force. Crimes Of States: States can commit crimes and be held criminally responsible. Article 19 of the ILC Draft Articles 1996 [Article 48 exists instead].

Critical perspectives on state responsibility Allott, Philip “State Responsibility and the Unmaking of International Law” (1988) 29 Harvard Int Law Journal 1 “There is reason to believe that the Commission’s long and laborious work on state responsibility is doing serious longterm damage to international law and international society…” 1. 2.

“First, it consecrates the idea that wrongdoing is the behaviour of a general category known as “states” and is not the behaviour of morally responsible human beings. Second, the deterrent effect of the imposition of responsibility is seriously compromised, not only by notionalising it but also by leaving room for argument in every conceivable case of potential responsibility”

What does he have to say about the circumstances precluding wrongfulness?


REZ ON INTERNATIONAL LAW “Chapter five is among the sadder memorials to the work of the International Law Commission.” The chapter is entitled “Circumstances Precluding Wrongfulness”. “Confucius is supposed once to have considered the question of whether one single phrase could destroy a whole country. The title to chapter five may be an example of a single phrase which could destroy the possibility of a true international society.” The International Law Commission’s draft articles on state responsibility may thus be “seen as a chapter from the putative constitution of the old international society, a primitive and presocietal society” Allott says. Crimes of States  Article 19 of the ILC Draft Articles of 1996. Liability for Injurious Consequences of Acts not prohibited by International Law Initiated in 1977. Focus is liability where there is no breach of international law. 1997 division into two parts, leading to: 1. Draft articles on the prevention of transboundary damage from hazardous activities 2. Principles on the allocation of loss 

In 2013 the UN GA A/RES/68/114 “Invites Governments to submit further comments on any future action, in particular on the form of the respective articles and principles, bearing in mind the recommendations made by the Commission in that regard, including in relation to the elaboration of a convention on the basis of the articles, as well as on any practice in relation to the application of the articles and principles.”

Responsibility of international organisations Article 57 says that the articles on State responsibility are without prejudice to any question of the responsibility of an international organisation  Draft Articles on the Responsibility of International Organisations adopted by the ILC in 2011, and this was welcomed by the GA in February 2012. GA Res 66/100, 27 February 2012.  In many respects parallel the articles on State responsibility What happens where there could potentially be responsibility both on the part of a State and an international organisation? Court of Appeal The Hague, LJN: BR0132 (July 5, 2011):  Netherlands Court of Appeal found the Dutch State liable for the deaths of three Bosniak men who had taken refuge with the Dutch battalion (“Dutchbat”) in Srebrenica in 1995  “Dutchbat” was under command of the United Nations peacekeeping force UNPROFOR in Srebrenica in 1995…”  UNPROFOR was the UN peacekeeping force in Bosnia and Herzegovina, set up under UNSC Resolution 743 in 1992, with duties including protecting safe havens including Srebrenica. Facts: The case concerned: 1. Rizo Mustafic, a Dutchbat electrician, and 2. Two relatives of Hasan Nuhanovic, a Dutchbat interpreter: his younger brother Muhamed and his father Ibro.  On July 13, 1995, Dutchbat troops told Rizo and they could not stay inside the Dutch compound and had to leave.  Muhamed’s father went with him. All three men were killed.  The Dutch District Court held that the acts of Dutchbat could only be attributed to the United Nations.  The Dutch Court of Appeal, holding that the attribution question had to be decided on the basis of international law, found the decisive question was who had “effective control” over the individual troops.  i.e. the ability to prevent the conduct in question.  Thus, dual attribution to a State and to an international organisation is possible.  Confirmed by Decision of September 2013 of the Dutch Supreme Court. Article 7 Conduct of organs of a State or organs or agents of an international organisation placed at the disposal of another international organisation The conduct of an organ of a State or an organ or agent of an international organisation that is placed at the disposal of another international organisation shall be considered under international law an act of the latter organisation if the organisation exercises effective control over that conduct.


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This use of the “effective control” test for attribution of conduct to an international organisation can be compared with the approach taken in the interesting case of Behrami v , a decision of the European Court of Human Rights (ECHR) on 2 May 2007. The ECHR declined to take jurisdiction in this case on the basis that certain acts were attributable to the UN and not to States party to the ECHR. Behrami v (2007) 45 EHRR SE 10 para 135. Facts: This case concerned a group of children who were playing in an area adjacent to demining operations being carried out by demining troops from NATO countries who were part of the UN KFOR Mission in Kosovo.  KFOR was the peacekeeping mission in Kosovo operating under UNSC Resolution (1244), NATO-led the same Resolution that set up UNMIK, the UN Interim istration Mission in Kosovo.  KFOR went to Kosovo directly after the NATO bombing of the FRY stopped.  The children were playing with unexploded cluster bombs that had been dropped by NATO on the FRY in 1999, one of the children was killed and the other severely injured.  The troops had known the bombs were there and failed to mark the area, having determined they were not a high priority.  Their families brought a case against , and also and Norway, both troop-contributing countries, to the ECHR. was in charge of the relevant sector of Kosovo. Issue: The case before the ECHR alleged violation of Article 2 of the Convention, the right to life. Judgment: The Court held that “ultimate authority and control” over demining troops from NATO countries forming part of the UN KFOR Mission in Kosovo lay with the UN Security Council, and so responsibility for their actions was attributable to the UN and not to their contributing states.  This meant that the ECHR did not have jurisdiction in the case because it would only potentially have jurisdiction in relation to acts of States party to the ECHR.

Which approach do you consider the better one for determining the attribution of responsibility in peacekeeping missions, effective control or ultimate authority and control? Is dual attribution preferable to attribution solely to the UN? The distinction is meant to be ultimate control as in only UN. NATO is always attributed to the UN.

Case study – rainbow warrior arbitration What were the facts that gave rise to the Rainbow Warrior arbitration?  Facts: 1985: French agents sink Rainbow Warrior in Auckland Harbour, one crew member killed, Dutch, Fernando Pereira. Agents Alain Mafart and Dominique Prieur arrested, sentenced to 10 years for manslaughter  demands release of Agents  NZ demands compensation for incident  NZ says is threatening NZ’s trade in EC in butter and lamb  1986 UNSG mediation. The ruling that comes out of this mediation has several key points:  Formal unqualified apology by  to pay $7M compensation  to make undertakings on trade  M & P to spend 3 years on Hao atoll  M & P prohibited from leaving without consent of 2 govts.  Agreement executed to this effect, with arbitration clause (NZ managed to insert it.) In case of any dispute arising, there would be arbitration.  The 1990 case we are studying was an arbitration that took place under this clause after breached the Agreement  1987 removes M for urgent medical treatment (stomach pains) without NZ consent and is not returned to Hao.  1988 P is removed, pregnant, father dying, without consent and is not returned to Hao. Elderly primagravida (age 39). (1) BREACH What were the alleged breaches by of international legal obligations in the NZ- Agreement?  Failing to seek NZ consent to removals in good faith  Removing M & P  Continuous absence of M & P


REZ ON INTERNATIONAL LAW NZ sought a declaration to this effect. New Zealand also sought a declaration that was under an obligation to return the agents to Hao for the balance of their 3-year periods, and an order that do so. (2) ATTRIBUTION Were the relevant acts attributable to ? Whether the States can be attributed to carrying out those acts, which constitute the breach. French authorities carried out those acts constituting the alleged breaches. Clearly, officials, armed forces are organs of the Head of State. (3) CIRCUMSTANCES PRECLUDING WRONGFULNESS What were the circumstances that might have precluded the wrongfulness of the actions taken by ? argued the circumstances precluding wrongfulness were:  Force Majeure: If it’s force majeure, it needs to be involuntary. The test of its applicability is of absolute impossibility. They were unsuccessful on this.  Distress: only this was successful and only partly. In comparison, distress can be voluntary. Distress precluded wrongfulness in relation to Mafart as it was necessary to remove him due to his severe medical condition without consent. The Tribunal was taking a lenient and broad approach of distress. The action has to be necessary to save the life of the person in question, however, it wasn’t necessary to save his life here. This can lead to slippery slope situation, what qualifies for distress, and where do you draw the line?  Necessity: It was not truly, possibility an “actual existing act precluding wrongfulness”. The Tribunal viewed this as controversial. What wrongful acts did the Tribunal consider had committed?  Failure to endeavour in good faith to obtain NZ consent to removal of Prieur pp.565-6  Removal of Prieur pp. 565-6  Failure to return Prieur pp.565-6  Failure to return Mafart to Hao (wrongfulness not precluded by state of distress that justified his removal) pp. 559560  The Tribunal found all of these obligations were breached up to the date of 22 July 1989, i.e. end of 3 year period running continuously from the delivery of agents by New Zealand to the French authorities.  But New Zealand had also sought a declaration that was under an obligation to return the agents to Hao for the balance of their 3 year periods.  Ken Keith dissented on this point. (4) LEGAL CONSEQUENCES OF THE WRONGFUL ACTS Identify the consequences of the wrongful acts as determined by the tribunal Remedies of damages for New Zealand, asks for  Reparation (in the form of restitution). NZ wants the agents back on the Island to complete the balance of the 3-year period.  says restitution is not the appropriate remedy here, it is cessation and to investigate whether the 3 years has expired. The agents went to Hao atoll on 1986 and it was now 1989 so was no longer under the obligation. So no cessation  Compensation was not sought  Not legal consequence, but recommendation that NZ and establish the -NZ Friendship Fund and it was.  Moderately disappointing outcome for NZ. But in of the moral injury, we got the satisfaction via the declaration that had breached its obligation in those mentioned ways. This was a sort of formal apology.

International courts and tribunals


International courts and tribunals What should you aim to learn from this topic?  understand international law’s emphasis on peaceful settlement of disputes  be familiar with the bases of jurisdiction in the ICJ and be able to advise on whether the ICJ has jurisdiction in a contentious case  be able to provide basic advice on the nature and appropriateness of the various available forms of international dispute resolution depending on the circumstances Will cover:  Peaceful Settlement of Disputes  Mechanisms for Dispute Settlement:  Arbitration  Adjudication a) Contentious Jurisdiction of the ICJ b) Advisory Jurisdiction of the ICJ  Consultation  Negotiation  Inquiry  Good Offices  Mediation  Conciliation Peaceful Settlement of Disputes “The peaceful settlement of international disputes is the most critical issue of our times. The use of force in certain disputes could result in the destruction of civilization.” J.G. Merrills, International Dispute Settlement, 334. 

Recall the obligation under Article 2(3) of the Charter for states to “settle their international disputes by peaceful means in such a manner that international peace and security, and justice, are not endangered”.



Shaw goes so far as to say, “international law has always considered its fundamental purpose to be the maintenance of peace” (p. 1010).

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General Assembly Resolution 2625, the Declaration on Principles of International Law Concerning Friendly Relations and Cooperation among States (the “Friendly Relations Declaration) of 1970 also says that: “States shall… seek early and just settlement of their international disputes by negotiation, inquiry, mediation, conciliation, arbitration, judicial settlement, resort to regional agencies or arrangements or other peaceful means of their choice.” See Article 33 of the UN Charter

Arbitration     

Arbitration was the first form of judicial settlement of disputes to develop internationally. There has been a long practice of referring a dispute for arbitration by a foreign head of state. Today sovereign arbitration is very rare. It is much more common today to use an arbitral tribunal comprising several appropriately qualified . E.g. Rainbow Warrior Arbitration (1990)

Hague Conventions for the Pacific Settlement of International Disputes of 1899 and 1907  As Shaw records, the PCA handled a steady flow of cases in its early days; it heard about 20 cases between 1900 and 1932  After that came a long period when it was used less frequently.

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Now, the PCA is playing an increasingly important role, including by providing facilities for significant proceedings such as the proceedings in the: Arctic Sunrise Arbitration (Netherlands v. Russia) (“boarding and detention of the [Greenpeace] vessel Arctic Sunrise in the exclusive economic zone of the Russian Federation and the detention of the persons on board the vessel by the Russian authorities”) – current Review established under the Convention on the Conservation and Management of High Seas Fishery Resources in the South Pacific Ocean 2013. Government of Sudan/Sudan People’s Liberation Movement (Abyei Arbitration) 2009 (concerning the Abyei boundary area between Sudan and South Sudan). Mox Plant Case (Ireland v UK) 2008 126 ILR 310 (under UNCLOS) (concerning mixed oxide nuclear fuel production at Sellafield).

Adjudication  

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But for simplicity the picture can be seen as: (1) interim measures (2) jurisdiction (3) merits   

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A) Jurisdiction of the ICJ in Contentious Cases No universal compulsory jurisdiction in international law Klabbers (p. 147) describes five possible stages of a dispute brought before the ICJ: (1) interim measures (2) issibility (3) jurisdiction (4) merits (5) compensation

e.g. Military and Paramilitary Activities in Nicaragua: Order of 10 May 1984, Request for the indication of Provisional Measures Judgment of 26 November 1984, Jurisdiction of the Court and issibility of the Application Judgment of 27 June 1986, Merits

The Court only has jurisdiction in cases between States Article 34(1) ICJ Statute: Only States may be parties in cases before the Court. Under Article 36(6): “In the event of a dispute as to whether the Court has jurisdiction, the matter shall be settled by the decision of the Court.” = “la compétence de la compétence” 1.

These are 6 potential bases of the jurisdiction of the ICJ in contentious cases referred to by Klabbers. All cases which the parties refer to it (Article 36(1) ICJ Statute)


REZ ON INTERNATIONAL LAW 2. 3. 4.

5. 6.  

All matters specially provided for in the Charter (Article 36(1) ICJ Statute) All matters specially provided for in treaties and conventions in force (Article 36(1) ICJ Statute) The optional clause (Article 36(2) ICJ Statute): “The states parties to the present Statute may at any time declare that they recognise as compulsory ipso facto and without special agreement, in relation to any other state accepting the same obligation, the jurisdiction of the Court in all legal disputes concerning: a. the interpretation of a treaty; b. any question of international law; c. the existence of any fact which, if established, would constitute a breach of an international obligation; the nature or extent of the reparation to be made for the breach of an international obligation.” See also paras (3), (4) and (5) of Article 36 Transferred jurisdiction, Article 37 ICJ Statute Forum prorogatum Corfu Channel case (Preliminary Objection) [1948] ICJ Rep 15, 27 British vessels sailing through the Corfu Channel off the Albanian coast in 1946 found themselves in a minefield. Two vessels hit mines and 44 people died. Britain broke off diplomatic relations with Albania (restored in 1991). And took proceedings against Albania. Although Klabbers describes these 6 potential bases of jurisdiction for simplicity the jurisdiction of the ICJ can be seen primarily as encoming: (1) All cases which the parties refer to it (2) All matters specially provided for in treaties (3) The optional clause jurisdiction - Article 36(2)

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Non-appearance: In case of a respondent’s non-appearance, the Court must satisfy itself that an applicant’s claim is “well founded in fact and law”, Article 53 ICJ Statute.  e.g. did not appear in the Nuclear Tests cases (1974) dealing with atmospheric nuclear testing; cf did appear in Request for an Examination of the Situation in accordance with Paragraph 63 of the Court's Judgment of 20 December 1974 in the Nuclear Tests (New Zealand v. ) Case [1995] ICJ Rep…dealing with underground nuclear testing;  e.g Iran did not appear in US Diplomatic and Consular Staff in Tehran (USA v Iran) [1980] ICJ Rep 3. Binding and final character of the Court’s judgments in contentious cases: Article 59 The decision of the Court has no binding force except between the parties and in respect of that particular case. Article 60 The judgment is final and without appeal. In the event of dispute as to the meaning or scope of the judgment, the Court shall construe it upon the request of any party. B) The advisory jurisdiction of the ICJ The Court’s advisory jurisdiction is found in Article 65 of the ICJ Statute. Article 65 1. The Court may give an advisory opinion on any legal question at the request of whatever body may be authorized by or in accordance with the Charter of the United Nations to make such a request. 2. Questions upon which the advisory opinion of the Court is asked shall be laid before the Court by means of a written request containing an exact statement of the question upon which an opinion is required, and accompanied by all documents likely to throw light upon the question.

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No separate interim measures or jurisdictional stages in advisory proceedings. Advisory Opinions are not binding. The UNGA and the UNSC are both expressly empowered under Article 96 of the UN Charter to seek Advisory Opinions from the ICJ, and the GA is empowered to authorise other UN agencies and specialised organs to do so. Adjudication beyond the ICJ: Please be aware that of course the ICJ is not the only international adjudicatory body. There are other institutionalised adjudicatory mechanisms Crawford’s 8th Edition of Brownlie provides a good overview of the various dispute settlement bodies in the field of the Law of the Sea, and WTO law as well as investment law.

Consultation Creating an opportunity to discuss an issue.



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To prevent disputes arising: E.g. “Interim Reciprocal Information and Consultation System” in the relationship between the UK and Argentina in connection with their dispute over the Falkland Islands (Malvinas) in 1990

As part of dispute settlement:  E.g. Article 4 of the WTO Understanding on Rules and Procedures governing the Settlement of Disputes 1995

Negotiation Negotiation “consists basically of discussions between the interested parties with a view to reconciling divergent opinions, or at least understanding the different positions maintained” (Shaw, 1014-5)  Negotiation does not involve a third party.  Usually the precursor to other dispute settlement procedures.  Helps clarify disagreements, and is a “satisfying” way to resolve them.  Requires goodwill, flexibility and sensitivity. Distrust and hostile public opinion can undermine negotiations (Shaw).  An example of an obligation to negotiate in the course of dispute settlement is found in the UN Convention of the Law of the Sea 1982, Article 283(1): In case of a dispute “the parties to the dispute shall proceed expeditiously to an exchange of views regarding its settlement by negotiations or other peaceful means.”

North Sea Continental Shelf cases [1969] ICJ Rep 3, 47, obligations to negotiate require:  “the parties so to conduct themselves that the negotiations are meaningful” i.e. not insisting on their own position     

Negotiation requires: not merely going through a formal process of negotiation entering into negotiations with a view to arriving at an agreement good faith is required a duty to negotiate does not imply an obligation to reach an agreement, but there has to be a serious effort examples of not negotiating in good faith include unusual delays, systematically refusing to consider proposals, and breaking off conversations (Shaw 1017 referring to Lac Lanoux).

There are treaties that require exhaustion of attempts to negotiate an outcome as a precondition for judicial settlement. What issues or problems do you see as arising here?

Inquiry  

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A disinterested third party investigates the facts. Process established under the Hague Convention for the Peaceful Settlement of International Disputes 1899.

e.g. Dogger Bank Inquiry: Facts: In 1904, early in the morning… squadron of Russian warships was on its way from the Baltic Sea to the Far East (there was a war on between Russia and Japan, and the Russian squadron had been on its way to participate in the conflict) The Russian squadron unknowingly steamed into an English fishing fleet, fishing near an area known as the Dogger Bank. In the confusion that followed, the Russian iral who was in charge thought that his Squadron was being attacked by Japanese torpedo boats. The Russians opened fire on the English fishing fleet. One of the fishing trawlers was sunk, five others damaged, two crew were killed and six wounded. The English prepared to intercept the Russian fleet which had travelled down further south and was near Gibraltar. intervened to try and preserve the relationship between Great Britain and Russia, and persuaded them to establish a Commission of Inquiry under the Hague Convention. Comprised an iral from each of the two parties, and three more irals from , Austro-Hungary and the US. The Commission was asked to “inquire into and report on all the circumstances relative to the North Sea Incident, and particularly on the question as to where the responsibility lies and the degree of blame attaching to the subjects of the two High Contracting Parties, or to the subjects of other countries, in the event of their responsibility being established by the inquiry.” Declaration between Great Britain and Russia, relating to the constitution of an International Commission of Inquiry on the subject of the North Sea incident, signed at St Petersburg, 12/25 November 1904, Article 2. The Commission found that no justification on the part of the Russians for opening fire. However, the Commission added that its findings were not “of a nature to cast any discredit upon the military qualities or the humanity of iral Rojdestvensky, or the personnel of his squadron”. The parties accepted the report. Russia paid Britain approximately £65,000 damages.



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Report of the Secretary-General’s of Inquiry on 31 May 2010 Flotilla Incident (The Flotilla inquiry) Facts: In May 2010, 6 vessels carrying humanitarian supplies to Gaza (which was under Israeli blockade) were intercepted by the Israeli Defence Forces 72nm offshore. Nine people were killed and many wounded. They used substantial force, boarding by means of speedboats and helicopters. On some s, they were firing before boarding with live fire (including from automatic and semiautomatic weapons), stun and smoke grenades, paintball guns and rubber bullets. UN was led by New Zealand’s Sir Geoffrey Palmer, and the outgoing Colombian president, Álvaro Uribe, and included Turkish and Israeli representatives. Findings: That the Israeli action was excessive and unreasonable, and non-violent options should have been used in the first instance. The force used was substantial and there had been no final warning immediately prior to boarding (the traditional shot across the bows). The loss of life and injuries after boarding were unacceptable and no explanation or satisfactory forensic evidence explained the deaths. engers were mistreated afterwards, and timely consular assistance denied. Additional inquiry into the Flotilla incident under the auspices of the UN Human Rights Council. Found: there was clear evidence to prosecutions, and that there was unnecessary violence; acts that “constituted grave violations of human rights law and international humanitarian law”; “willful killing; torture or inhumane treatment; and willfully causing great suffering or serious injury to body or health” in breach of IHL. The report rejected Israel’s justification of its soldiers’ decision to open fire, and found that even individuals not attempting to stop Israeli soldiers boarding received injuries, some of them fatal. Live fire was used extensively and arbitrarily. Israel denounced the report as one-sided and biased.

Good offices 

The disputing parties ask a third party to provide a communication channel between them E.g. Good offices provided by Saudi Arabia in the dispute leading to the case of Maritime Delimitation and Territorial Questions between Qatar and Bahrain (Qatar v. Bahrain) [2001] ICJ Rep 94

Mediation Mediation is like negotiation with the active participation of a third party. Third party transmits and interprets proposals put forward by the parties to one another. Different to conciliation because with conciliation the third party also puts forward proposals of his/her own devising.  Mediators normally have their own motives for involvement in a dispute.  E.g. attempted mediation by Mr Alexander Haig (US Secretary of State) of the dispute over the invasion of the Falkland Islands in 1982…  Merrills suggests you might imagine trying to mediate between Margaret Thatcher and General Galtieri, the military leader of Argentina, saying that this calls for even more than “patience and iron constitution”.   

conciliation   

A conciliator has a more active role than a mediator A conciliator will be involved in the formulation of the possible for a settlement of the dispute These may be presented in the form of a report (non-binding)

E.g. Jan Mayen Dispute:  Conciliation Commission established in 1980  Dispute between Iceland and Norway over the dividing line between the continental shelves of Iceland and Jan Mayen Island (a Norwegian island in the Arctic about 600 km off Iceland and 1000 km off Norway).  The Commission proposed a t development agreement for hydrocarbon production.  Accepted by the parties and put into a treaty between them.

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Treaties frequently set out a whole range of possible ways to resolve disputes E.g. The Vienna Convention for the Protection of the Ozone Layer 1985 says that if there is a dispute about the interpretation or application of the convention, the parties must first of all: Try negotiation; Then good offices or mediation; Then arbitration, or adjudication by the ICJ; But if the parties don’t mutually accept these procedures, then they are obliged to submit the dispute to conciliation, unless they can agree on some other means of peaceful dispute settlement.

Collective Security


Collective security The United Nations Security Council is the most central mechanism within the UN for pursuing the aim of international peace and security. The permanent of the United Nations Security Council as set out in Article 23 of the UN Charter are: China; ; Russia; United Kingdom; United States of America  The non-permanent shall be elected for a term of two years.  Article 27 tells us about the voting power of the permanent of the UNSC that permanent ’ votes must be concurring.  The formal process for amending the UN Charter is set out in Article 108 which states that it must be adopted by a vote of two thirds of the of the General Assembly, and ratified into their constitutional processes by two thirds of the of the UN, including all the of the SC.  The responsibility conferred on the UNSC by the of the UN under Article 24 of the Charter is primary responsibility for the maintenance of international peace and security and agree that in carrying out in these duties, SC acts on their behalf.  Article 25 of the Charter states that the of the UN agree to accept and carry out the decisions of SC.

Collective Security

REZ ON INTERNATIONAL LAW  Article 103 of the UN Charter, which says that: “In the event of a conflict between the obligations of the of the United Nations under the present Charter and their obligations under any other international agreement, their obligations under the present Charter shall prevail”. Klabbers tells us that the provision that lies at the heart of the UN security mechanism is Article 39 of the UN charter: “The Security Council shall determine the existence of any threat to the peace, breach of the peace, or act of aggression and shall make recommendations, or decide what measures shall be taken in accordance with Articles 41 and 42, to maintain or restore international peace and security”.

 The types of measure which may be recommended or authorized by the UNSC: Article 41: Measures not involving the use of armed force. Such measures may include complete or partial interruption of economic relations and of rail, sea, air, postal, telegraph, radio, and other means of communication, and the severance of diplomatic relations. Article 42: If the above is inadequate, it may take such actions by air, sea or land forces as may be necessary to maintain or restore international peace and security. Such actions may include demonstrations, blockade, and other operations by air, sea, or land forces of the .  Note that under Article 43 that each time troops are provided for UN purposes agreements are to be put in place between troop contributing countries and the UN, covering matters including numbers/types/location of troops.

Common types of sanctions (a)economic sanctions  e.g. 1992 Former Yugoslavia, on parts of Croatia and Bosnia controlled by Bosnian Serb forces.  e.g. in 1990 on Iraq after its invasion of Kuwait in 1990. (b) arms embargoes  E.g. 1991 Former Yugoslavia  E.g. 1998 FRY in relation to Kosovo  E.g. Somalia, Rwanda, Liberia, Ethiopia and Eritrea, Sierra Leone and groups in the DRC, North Korea, Sudan... (c) asset freezes  e.g. 1999 freezing of the assets held by the Taliban in Afghanistan (d) sanctions with special characteristics  E.g. embargo on trade in uncertified rough-cut diamonds from Sierra Leone – where it was believed the rebels were relying on income from the sale of diamonds to buy weapons.  You might the allegations that Naomi Campbell received a very large diamond from one time Liberian President Charles Taylor, who was involved in the civil war in Sierra Leone and was prosecuted by the Special Court for Sierra Leone for war crimes there, and found guilty in 2012.

Sanctions affecting individuals Kadi (2008).  Facts: a businessman from Saudi Arabia whose assets were frozen by the EU in 2002 following the destruction of the twin towers of the World Trade Centre on 9/11 2001, in accordance with UNSC Resolution 1267 of 1999.  Resolution 1267 was the resolution that imposed an arms embargo and asset freeze on the Taliban in Afghanistan after 9/11.  Kadi challenged the EU under EU law on the basis that EU measures implementing the sanctions entailed violations of his rights to property, access to justice and right to a fair trial.  Kadi I case 2008. Unsuccessful in the European Court of First Instance. Appealed to the European Court of Justice. Appeal was successful.  EU made new regulation, still listing Kadi as subject to sanctions.  Kadi took fresh proceedings and was again successful. Kadi II decision in July 2013.

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In the meantime… An Office of Ombudsperson was created by UNSC Resolution 1904 of 2009 and strengthened by UNSC Resolution 1989 of 2011. Under Resolution 1989, when the Ombudsperson recommends an individual be delisted then they will be delisted unless there is consensus against this in the Sanctions Committee.

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In fact Kadi submitted a delisting request to the office of the Ombudsperson and was duly delisted in October 2012. However, what we are interested in is the substance of the decisions in Kadi I and II, and what this finding under EU law means for the UN Charter system.

 What is the problem with regard to Article 25 of the UN Charter following the Kadi case?  In addition you will recall Article 103 of the UN Charter Al-Jedda v the United Kingdom, 7 July 2011, Application 27021/08.  Facts: Al Jedda, who had been held for 3 years without trial by British forces in Basra in Iraq on suspicion of being connected with terrorism complained to the European Court of Human Rights (ECHR) under the European Convention on Human Rights.  The UK argued that Security Council Resolution 1546 authorized the multinational force still present in Iraq at the request of the Iraqi interim government to “take all necessary measures to contribute to the maintenance of security and stability in Iraq”. The Resolution contained no reference to detention.  The ECHR read the resolution in the light of UN Charter provisions encouraging respect for human rights so that there was no conflict between the UK’s obligations under the UN Charter and under the ECHR.  Therefore, the Resolution did not authorise indefinite detention without trial.  The Court based its interpretations on an assumption the UNSC certainly would not implicitly authorize a breach of human rights obligations.  For that to be regarded as the intention of the UNSC it would need to be made clear and explicit.  We know from Kadi that the ECJ would in the face of a conflict between EU law and the Charter, it would uphold EU law. But we do not know what the ECHR would do.

UN sanctions contrary to jus cogens You will have noted that Article 103 refers to UN ’ obligations “under any other agreement”. What would the ICJ say about a Chapter VII UNSC Resolution that appeared to be requiring UN act contrary to ius cogens (peremptory norms of international law)?Would Article 103 apply here?

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Case Concerning Application of the Genocide Convention (Bosnia and Herzegovina v Serbia and Montenegro) (2007)  The UNSC had imposed an arms embargo in relation to the conflict in the former Yugoslavia.  Bosnia and Herzegovina’s self defence was impeded by the arms embargo in the UNSC resolution, it argued.  The Court addressed the issue at the provisional measures stage (Orders of 8 April 1993 and 13 September 1993).  The Court said it could not consider those claims by Bosnia and Herzegovina at the provisional measures stage because they went beyond matters within the scope of the Genocide Convention which was the basis of the Court’s jurisdiction in the case.  In his Separate Opinion at the Provisional Measures stage of the Genocide Convention case, Judge ad hoc Lauterpacht said: The concept of jus cogens operates as a concept superior to both customary international law and treaty. The relief which Article 103 of the Charter may give the Security Council in case of conflict between one of its decisions and an operative treaty obligation cannot – as a simply hierarchy of norms – extend to a conflict between a Security Council resolution and jus cogens.”

Use of force This topic will address the following subjects: (1) Introduction to the use of force (2) The right of self defence (3) Humanitarian intervention (4) The ‘Responsibility to Protect’ (5) Kuwait 1991 (6) Iraq 2003 (7) Afghanistan post 2001 (8) Libya 2011 (9) Syria 2012 (10) Crimea 2013

1. Introduction to the use of force  

The just war: the idea that force could be used in compliance with the divine will. doctrine came about after the Roman Empire became Christianised and Christians abandoned pacifism.

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defined by St Augustine (354-430 A.D.) in Summa Theologica II, as for avenging injuries where the other party will not make amends, i.e. to punish wrongs and restore the status quo. did not legitimise aggression. Why might there be problems with the concept of the just war? (Klabbers p. 187). European nation-states rose & fought one another: both sides might be sure that they were in the right. Notion that it was necessary to attempt a peaceful resolution of a dispute before turning to force. Both sides might be right! Turn to positivism: accepted that recourse to war could derive its legality only from formal legal processes. Grotius tried to define the just war with reference to specific concepts of self-defence, protection of property, and punishment for wrongs suffered by citizens. De jure belli ac pacis, 1625. Notion of the sovereign equality of states grew after 1648 and the idea of the just war disappeared: equal and sovereign States could not judge the justness of one another’s causes Distinction between times of war and times of peace. Force was permitted to be used in times of war. League of Nations: Covenant of the League of Nations 1919, 225 CTS 195 (opened for signature 28 June 1919, entered into force 10 January 1920) of the League were to submit their disputes to the Council of the League, for inquiry, arbitration or judicial settlement, and they were not allowed to make war until three months after the Council’s award, decision, or report. This provided a cooling off period. This seemed important to states when it was established, as they reflected on how the assassination of the Austrian Archduke Ferdinand in Sarajevo had fed into the chain of events leading to the First World War. Kellogg Briand Pact: The General Treaty for the Renunciation of War of 1928. Prohibited the use of force. Article I: the parties “condemn recourse to war for the solutions of international controversies, and renounce it as an instrument of national policy in their relations with one another”. Reservations allowing force to be used in self-defensc, including collective self-defence. Article II: settlement of all disputes was to be by peaceful means. The Pact did not prevent the Japanese invasion of Manchuria in 1931, the Italian invasion of Abyssinia in 1935, and the German/Soviet invasion of Poland. It didn’t prevent WWII or other major uses of force! Article 2(4) of the UN Charter: “All shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any State, or in any other manner inconsistent with the Purposes of the United Nations.” NB: Refers to threat of force as well as use.

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Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v Uganda) [2005] ICJ Rep 168, in relation to Uganda’s occupation of towns and airports in the DRC as part of an attempt to overthrow the government The Court described Article 2(4) as “a cornerstone of the Charter”, and found there was a “grave violation of the prohibition of the use of force expressed in Article 2(4) of the Charter”. The provision of self-defence has to be read narrowly, it did not ‘allow the use of force by a State to protect perceived security interests beyond the wording of Article 51. Brownlie calls UN Charter system “a system of public order”. System of coming together institutionally to deal with the use of force. The United Nations “has a monopoly on the use of force” and it is primarily the responsibility of the UN to deal with breaches of the peace internationally. Particularly the Security Council. Subject to Article 2(7) provision that if a matter is found to be solely within the domestic jurisdiction of a disputing party then the Council will not make recommendations. Recall that this requires a determination that there is a threat to international peace and security under Article 39. United Nations engages in enforcement action authorised by the UNSC, under Chapter VII of the UN Charter. UNSC powers under Chapter VII require a determination that there is a threat to international peace and security. When is there a threat to international peace and security, under Article 39?

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Is this only when one State attacks another, for instance? It has gone beyond that now. The suffering of civilian populations and the magnitude of human tragedies have come to be factors to be taken into in making a determination. E.g. in 1992 in relation to the humanitarian scale of situation caused by the heavy fighting in Somalia. Deliberate targeting of civilians and the commission of widespread violations of international humanitarian and human rights law have been accepted by the SC as constituting such a threat (SC Res 1296 (2000) on protection of civilians in armed conflict). Insufficient response to terrorism has also been considered a threat to international peace and security e.g. Libya’s 1992 refusal to prosecute or extradite those alleged to have bombed Pan Am flight 103, blowing it up above Lockerbie in Scotland. Justifications for Use of Force: UNSC decision under chapter VII of the Charter [Treaty] Self- Defence [Art 51 of Charter and Customary Int Law (Nicaragua case)] Humanitarian Intervention [Perhaps part of Customary Int Law] Responsibility to Protect [Customary Int Law] The veto is the biggest problem for achieving a UNSC justification. To find if customary international law exists must look at state practice and opinio juris — Need a lot of evidence in reference to the rule.

2. The right of self-defence Article 51 of the UN Charter “Nothing in the present Charter shall impair the inherent right of individual or collective self-defence if an armed attack occurs against a Member of the United Nations, until the Security Council has taken measures necessary to maintain international peace and security. Measures taken by in the exercise of this right of self-defence shall be immediately reported to the Security Council and shall not in any way affect the authority and responsibility of the Security Council under the present Charter to take at any time such action as it deems necessary in order to maintain or restore international peace and security.” This suggests a tension with the prohibition laid down in Article 2(4) which does not just outlaw the use of force but also the threat thereof. One can hardly expect states to wait until an armed occurs before defending themselves, indeed small states could be completed wiped out by a single armed attack! Surely the Charter cannot have intended to negate self-defence in such a case. For this reason it may be claimed that art 51 doesn’t mean that and point to customary right of self-defence. 

Caroline case “A necessity of self-defence, instant, overwhelming, leaving no choice of means, and no moment of deliberation.” It is generally accepted that the customary requirements are authoritatively formulated in correspondence between UK & USA. Threat mush be imminent (Webster US Secretary of State) - This is not as strict as Art 51 and leaves open the possibility of ‘anticipatory self-defence’, but not preemptive self-defence.   

“Until the Security Council has taken measures necessary to maintain international peace and security”: only a temporary right of self-defence But the Security Council might be hamstrung by the veto, in which case you could rely indefinitely on Article 51. Actions taken in self-defence under Article 51 must be reported immediately to the UNSC: “shall be immediately reported to the Security Council”. Collective self-defence: Self-defence may be exercised collectively both under Article 51 and under customary international law.

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Case Concerning Military and Paramilitary Activities In and Against Nicaragua (Nicaragua v United States of America) (merits) [1986] ICJ Rep 14 Two requirements: that the victim State should declare its status as victim and request assistance; that the wrongful act complained of must constitute an ‘armed attack’. No evidence that Honduras, Costa Rica and El Salvador considered themselves the victims of an armed attack or sought US assistance Two requirements: Necessity and proportionality: “force used in self-defence must be necessary ad proportionate,” whether self-defence is individual or collective.

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The use of force may not necessarily have to be immediate to be necessary. The requirement that the use of force be proportionate “requires that the size, duration and target of the response correspond to the attack in question”. Crawford, 749. Together they must not be punitive, the point of self-defence is to repel an attack not to pursue the attacker. Self-defence may justify a temporary military occupation but not long-term occupation, let alone annexation.

Advisory Opinion on the Legality of the Threat or Use of Nuclear Weapons (Advisory Opinion) [1996] ICJ Rep 136: The Court found that the proportionality principle might “not in itself exclude the use of nuclear weapons in selfdefence in all circumstances”. The Court considered that any use of nuclear weapons would have to be proportionate in order to be a lawful exercise of the right to self-defence. What difficulty might arise in connection with the proportionality requirement if we allow self-defence to be exercised on an anticipatory basis? The test of proportionality will be interpreted in a way that takes into when attacks being experienced are part of a sequence or chain of events: Case Concerning Oil Platforms, (Iran v USA) [2003] ICJ Rep 161 The US attacked two Iranian oil platforms and unsuccessfully claimed that it was doing so in self-defence after two of its vessels were hit sequentially by Iranian missiles during the Iran-Iraq war. The Court found that the US action was neither proportionate nor necessary. The Court took into the scale of the US actions, which also included destroying two Iranian frigates, a number of other naval vessels and aircraft, and other action. Democratic Republic of the Congo v. Uganda [2005] ICJ Rep 168. As Judge Simma described the case: “Uganda invaded a part of the territory of the DRC of the size of and kept it under her own control, or that of the various Congolese warlords she befriended, for several years, helping herself to the immense natural riches of these tormented regions.” The Court held: no proportionality in Uganda’s response to the trans-border attacks it was experiencing from the Democratic Republic of the Congo. Uganda was in breach of the prohibition on the use of force.

3. Humanitarian intervention Humanitarian intervention is highly controversial for a variety of reasons; it lends itself to large-scale abuse. It is next to impossible to draw up formal guidelines to justify such an intervention. How many people need to die? Can it be used against states who don’t actively kill their populations but nonetheless commit other grave human rights violations? Where do you draw the line? Sacrifice: can states be expected to take their own soldiers at risk in order to save the lives of strangers? Few states have the military capacity, so it may quickly become the prerogative of powerful states, providing them with an excuse to exercise dominion. Who has the right? – A state, oppressed populations or even obligation on states that have capacity to intervene? In the absence of authroisation by the SC the general position is that it is prohibited, but that if it occurs and seems morally justified or legitimate, the world community grudgingly accepts it. (Like Kosovo which is deemed illegal). Brownlie has identified two models of humanitarian intervention: 1. The first is a late-19th century model of l’intervention d’humanité: a right to intervene where a state had “abused its sovereignty by brutal and excessively cruel treatment” of individuals.  Intervention would not result in any change in who had sovereignty over a territory.  This doctrine did not survive, as it was realised that it was “a cloak for episodes of imperialism”.  E.g. the US invasion of Cuba in 1898. Crawford’s 8th ed of Brownlie, 752. 2. The second model of humanitarian intervention referred to by Brownlie is connected with two precedents:   

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(a) the NATO bombing of targets in Yugoslavia over a 78 day period in 1999 during the Kosovo crisis. No Security Council condemnation of this use of force. The Security Council declined to condemn NATO’s use of force, by 12 votes to 3. After the conflict the Security Council adopted Resolution 1244 of 1999. This resolution welcomed the withdrawal of Yugoslav forces from Kosovo and decided to deploy civil and military presences under UN auspices. There was still no condemnation of the NATO action, although no formal endorsement either.

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So what happened was that the doctrine of humanitarian intervention in a crisis was invoked, and not condemned.

In May 1999 the Federal Republic of Yugoslavia (Serbia and Montenegro) sued ten member states of NATO  Belgium, Canada, , , Italy, Netherlands, Portugal, Spain, UK and USA. All related to the massive bombing campaign and its consequences (deaths of civilians, injuries, privations, effects on navigation on the Danube caused by the destruction of bridges, environmental damage). However as we have said earlier in the course each of the cases was dismissed for lack of jurisdiction. The reasons varied. The US had a reservation to Article IX of the Genocide Convention requiring US consent to the jurisdiction of the ICJ in any case arising under the Convention. Spain had a carve out from its acceptance of the Court’s jurisdiction under Article 36(2) of the ICJ Statute, according to which Spain did not recognise the Court’s jurisdiction in cases where the other party had accepted the Court’s jurisdiction less than 12 months before filing a case (which was the case here). In the cases against the UK, Portugal, the Netherlands, Italy, , , Canada and Belgium were dismissed after preliminary objections proceedings the Court found that the FRY was not a UN member, and not a party to the ICJ Statute, at the time the proceedings were filed in 1999. The FRY became so in 2000.

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A meeting of G77 foreign ministers in New York on 24 September 1999 rejected the “so-called right of humanitarian intervention” as having no basis in the UN Charter or international law. (Declaration on the Occasion of the Twenty-third Annual Ministerial Meeting of the Group of 77, 24 September 1999)  As Brownlie has noted this represented the opinion of 132 states.

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Brownlie also points out that the UK’s purposes in relation to the bombing included trying to persuade Yugoslavia to accept various political demands in relation to the status of Kosovo, and cites a statement by the UK Permanent Representative to the United Nations, Sir Jeremy Greenstock, on 24 March 1999: “Mr President, In defiance of the international community, President Milosevic has refused to accept the interim political settlement negotiated at Rambouillet; to observe the limits on security force levels agreed on 25 October; and to end the excessive and disproportionate use of force in Kosovo. Because of this failure to meet these demands, we face a humanitarian catastrophe. NATO has been forced to take military action because all other means of preventing a humanitarian catastrophe has been frustrated by Serb behaviour.” (b) the earlier creation of the Air Exclusion Zone or “no-fly zone” in Northern Iraq in 1991. This was intended to help protect the Kurds in Northern Iraq (see up to “granted autonomy over portions of Northern Iraq”).

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After the Gulf War in 1991 there were revolts against the central government which led to widespread repression of the Shias in the South and the Kurds in the North. Security Council Resolution 688 of 1991 condemned the repression and insisted that Iraq must allow international humanitarian organisations access to those in need (but did not authorise the use of force and was not a Chapter VII resolution). The US, UK and very briefly put troops into northern Iraq to set up a safe haven for humanitarian operations and also declared “no-fly” zones over northern Iraq in April 1991 and southern Iraq in 1992. Shaw, 6th ed, 1254. A ‘no fly zone’ is where forces from other countries decide to enforce a ban on flights over the territory of a State that is attacking its own people from the air. Justifications asserted for the no-fly zones included Resolution 688 (which did not explicitly mandate the no- fly zones) and self-defence (arguing that this was a proportionate response to Iraqi actions). At the same time, the UK also invoked a humanitarian justification saying the zones “are justified under international law in response to a situation of overwhelming necessity.” There is a contrast here with the no-fly zone declared in Libya, where this was established by the UNSC acting under Chapter VII, in Resolution 1973, paras 6-12. Not purely humanitarian, some political agendas were involved. The State of Customary Int Law in regards to Humanitarian Intervention Contrast: (a) the UK Foreign Office Policy Document No 148 of 1986 (before Kosovo)

REZ ON INTERNATIONAL LAW Very little basis to argue that a right of Humanitarian intervention does exist — at best it can be said not to be unambiguously illegal. Still an open area (b) the UK Guidelines on Humanitarian Intervention of 2000 (after both Kuwait and Kosovo), Where a govt has shown to be unwilling or unable to prevent the overwhelming crisis or is actively promoting it. A last resort option Any response should proportionate and collective. Important check/balance, no one State can justify an act under this concept - collective response.

4. Responsibility to protect A “responsibility to protect” has been invoked more recently as a concept triggering a responsibility to react immediately when a catastrophic situation takes place.  Launched in 2001 by Canadian Government-sponsored International Commission on Intervention and State sovereignty (ICISS), an ad hoc group of high profile individuals.  States have the responsibility to protect individuals. Where they fail to exercise this responsibility within their own boundaries, others are entitled to step in (at least when it comes to gencocide or ethnic cleansing).  What distinguishes R2P from HI is the attention to prevention and in particular reconstruction.  Orford identifies it as most signifiant normative development in international affairs since the conclusion of the Charter; it provides a justification for putting states under international supervision, thereby changing the nature of sovereignty. Sovereignty becomes conditions and subjected to approval by the international community.  Tried to balance two competing principles: system of equal sovereign States & “shift of the balance between states overeignty and human security to the benefit of the latter”. Richard Cooper and Juliette Kohler (2009)    

The Commission argued that sovereignty should not be seen as the autonomous right of the State to control its citizens, rather “sovereignty implies responsibility (to protect)…” “[T]he primary responsibility for the protection of its people lies with the State itself”. However when the State fails to protect its people, or instead harms them, an international responsibility to protect could become important. The new doctrine received in 2 major UN Reports in 2004 and 2005: Report of the UN High Level on Threats, Challenges and Change, A/59/565, 2004, paras 201-3; United Nations Secretary-General in Larger Freedom, A/59/2005, paras 16-22.

World Summit Outcome, General Assembly Resolution 60/1, A/Res/60/1 (2005), paras 138-9: all States have a responsibility to protect their citizens from:  Genocide,  war crimes,  ethnic cleansing and  crimes against humanity. Furthermore, the international community affirmed that they were prepared to take coercive military action in situations where national authorities were “manifestly failing to protect their populations” from these four crimes….” Responsibility to protect populations from genocide, war crimes, ethnic cleansing and crimes against humanity 138. Each individual State has the responsibility to protect its populations from genocide, war crimes, ethnic cleansing and crimes against humanity. This responsibility entails the prevention of such crimes, including their incitement, through appropriate and necessary means. We accept that responsibility and will act in accordance with it. The international community should, as appropriate, encourage and help States to exercise this responsibility and the United Nations in establishing an early warning capability. 139. The international community, through the United Nations, also has the responsibility to use appropriate diplomatic, humanitarian and other peaceful means, in accordance with Chapters VI and VIII of the Charter, … … to help to protect populations from genocide, war crimes, ethnic cleansing and crimes against humanity. In this context, we are prepared to take collective action, in a timely and decisive manner, through the Security Council, in accordance with the Charter,

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REZ ON INTERNATIONAL LAW including Chapter VII, on a case-by-case basis and in cooperation with relevant regional organisations as appropriate, should peaceful means be inadequate and national authorities are manifestly failing to protect their populations from genocide, war crimes, ethnic cleansing and crimes against humanity. We stress the need for the General Assembly to continue consideration of the responsibility to protect populations from genocide, war crimes, ethnic cleansing and crimes against humanity and its implications, bearing in mind the principles of the Charter and international law. We also intend to commit ourselves, as necessary and appropriate, to helping States build capacity to protect their populations from genocide, war crimes, ethnic cleansing and crimes against humanity and to assisting those which are under stress before crises and conflicts break out. 

What is the scope and legal status of the R2P doctrine? Use of force may be taken by collective action through the SC in accordance with the Charter (Chpt 7). Emphasises the requirement for following the process under the UN system in authorising Use of Force in R2P cases. The High Level Report indicates an emerging norm of a collective R2P, but the GA Resolution 60/1 contains no comparable wording that might be indicative of any intention by states to formulate customary Int Law — Whilst the idea of R2P is not a dead concept, it is linked to SC authorisation and thus restricted somewhat by Veto and UN processes.

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Security Council Resolution 660 (1990) Security Council Resolution 661 (1990) Security Council Resolution 665 (1990) Security Council Resolution 678 (1990) Security Council Resolution 687 (1991) (ceasefire)

The UNSC’s response to Iraq’s invasion of Kuwait in 1990 demonstrates how Chapter VII of the UN Charter may work, and how the use of force is permissible where there is a UNSC mandate.  Facts: On 2 August 1990 Iraq, led by Saddam Hussein, invaded the small neighbouring country of Kuwait.  The same day the UNSC adopted Resolution 660 (1990) condemning the invasion and calling for an immediate and unconditional withdrawal.  UNSC Resolution 661, adopted on 6 August 1990, expressed deep concern that Resolution 660 had not been complied with and imposed strict sanctions on Iraq, in relation to all imports and exports but not including medical supplies, or foodstuffs to meet humanitarian needs.  On 9 August this was followed with Resolution 662 (1990) declaring that Iraq’s purported annexation of Kuwait had no legal validity.  Additional resolutions followed.  UNSC Resolution 665 (1990) adopted on 25 August, expressed grave alarm at Iraq’s failure to comply with previous resolutions and calling on all those with forces in the area to halt inward and outward maritime shipping to inspect it for items subject to the sanctions.  Minimum force was permitted. There was a little unease about this because there were no Article 43 agreements under the Charter.  But the US and the UK had reserved the right to act in collective self-defence of Kuwait, so the use of force was potentially based on that alternative ground.  Recall the criteria of use of self-defence [Article 51] — Self Defence valid until the SC has taken measures necessary to maintain international peace and security. Had the resolutions wiped out valid self defence?  Argued that a right to self defence remained despite the existence of the Resolutions  On 29 November 1990 the SC adopted Resolution 678 (1990), which gave Iraq a final opportunity and grace period to comply with earlier resolutions and to withdraw from Kuwait.  That grace period ran to 15 January 1991 and after its expiry Resolution 678 authorised Member States cooperating with the Government of Kuwait to use “all necessary means” to uphold and implement Resolution 660 “to restore international peace and security in the region”.  The SC asked all States to provide for the actions undertaken. Twelve countries contributed troops and another 27 gave logistical and financial .  On 16 January 1991 armed action began, led by the US in an operation known as Operation Desert Storm.  This action was successful, and Iraq pulled out of Kuwait.  Security Council Resolution 687 (1991) established a formal ceasefire.  Iraq also accepted liability for the damage caused by the invasion and a body called the United Nations Compensation Commission was established to assess the claims emerging from the whole episode.

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The work of the UNCC eventually made a valuable contribution to international law and procedure on matters including reparation for environmental harm during conflict.

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Security Council Resolution 687 (1991) Security Council Resolution 1441 (2002) United Kingdom Foreign and Commonwealth Office Memorandum of 17 March 2003

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More than a decade later, in March 2003, the UK and the US undertook military action against Iraq for the second time because of the concerns that Iraq had weapons of mass destruction. More questionable whether there was a UNSC mandate for the use of force. The name of the military operation itself, Operation Iraqi Freedom, raises questions.

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6. The use of force in Iraq in 2003

SC authorization Both the US and the UK relied almost exclusively on their interpretation of Security Council resolutions as providing a basis for the invasion, on the grounds that Iraq had not complied with its disarmament obligations. The US also relied on preemptive self-defence, both in relation to Iraq’s believed possession of chemical and biological weapons and missiles which were not in the end found in Iraq; and also suspected links between Saddam Hussein and Al-Qaeda that were later discredited. The idea of preemptive self defence is also known as the Bush Doctrine. Their interpretation that there was Security Council authorisation for the use of force rested on a combined reading of Resolutions 678, 687 and 1441. Resolution 678 of 1990 was the Chapter VII resolution authorising the use of all necessary means to restore international peace and security after the invasion of Kuwait, and it was pursuant to this resolution that armed force had been used to get Iraq out of Kuwait. Resolution 687 of 1991, paras 8-13, required Iraq to allow the inspection and destruction or removal of its biological, chemical and missile capabilities and an unconditional undertaking from Iraq not to use, construct or acquire such items, with the development of a future monitoring and verification plan to ensure this outcome. Iraq was to provide details within 15 days to the UNSG and DG of the IAEA of all such items in its possession. Iraq did not comply and this problem remained very high on the international security agenda throughout the 1990s, with ongoing attempts to get Iraq’s cooperation. Finally on 20 December 2002 the UNSC unanimously adopted Resolution 1441 of 2002 (12 years after Resolution 678) acting under Chapter VII, offering Iraq a final opportunity to comply. Resolution 1441, in its preambular text, recorded the view that Resolution 687 imposed disarmament and inspection obligations on Iraq that were a necessary step for achievement of the restoration of peace and security in the area. Resolution 1441, para 1, determined that Iraq had been and remained in material breach of its obligations to comply with successive UNSC resolutions, including Resolution 687. Resolution 1441, para 2, offered Iraq a final opportunity to comply with its disarmament obligations and inspections under the previous UNSC resolutions. Importantly it declares Iraq to continue to be in material breach of obligations under previous Resolutions. Iraq failed to comply with Resolution 1441 and after UNSC discussions broke down in March 2003 military action began on 20 March 2003. It was argued that the mandate for use of force as per the earlier resolution was ongoing. Secondary Source Evidence i. FCO Document: Revival of authorisation in Res 678 — refers to Res 1441 which stated no further resolution required ii. McGoldrick Article: No existence of doctrine of revival. Refers to presumption against use of force in legal order and criticises justifying a military attack from the interpretation of silences in 1441.

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There was no provision in Resolution 1441 explicitly authorising the use of force. Was the use of force legal? At the time, British Attorney General Lord Peter Goldsmith told the PM Tony Blair that military force would be illegal if a new and additional UNSC resolution was not obtained. Later in circumstances of very strong pressure, he softened this to say just that Res 1441 was not clear and the safest legal course would be to secure a further UNSC resolution. Then the following month 3 days before the missiles began to fall he told the British Parliament that the use of force was justified in international law even without a new UNSC resolution. No WMD were found in Iraq, and embarrassing revelations showed that an intelligence dossier relied upon by the British government was not properly based on the evidence.

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The Chilcot Inquiry: former British Prime Minister, Gordon Brown announced in 2009 that an Inquiry would be conducted to identify lessons that can be learned from the British experience in relation to the Iraq conflict, chaired by Sir John Chilcot. The Inquiry took evidence over a number of months, with as many hearings as possible held in public. The Inquiry held its final round of public hearings between 18th January - 2nd February 2011. The Inquiry intends to deliver its report in 2014.

7. The use of force in Afghanistan in 2001      

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Attacks of 11 September 2001 Attacks on the World Trade Centre in New York and on the Pentagon in Washington on 11 September 2001. 4 planes hijacked by 19 people 2 planes crashed into World Trade Centre Twin Towers, in New York. Both buildings collapsed. 1 plane crashed into the Pentagon near Washington, D.C. 1 plane crashed into a field in Pennsylvania. no survivors, nearly 3,000 people died.

Intervention in Afghanistan Operation Enduring Freedom - launched 7 October 2001 U.S. and British Special Forces including large scale U.S. air , ing the ground forces of the Afghan United Front Ousted the Taliban regime in Kabul and most of Afghanistan Interim government was established under Hamid Karzai Successful in the 2004 general elections International Security Assistance Force (ISAF) established by the UN Security Council, late December 2001 Osama bin Laden killed in Abbottabad, Pakistan, by US Navy Seals, 2 May 2011, body buried at sea. Step-by-step events after 9/11 12 September 2001 UN Security Council Resolution 1368, referring to “the inherent right of individual or collective self-defence in accordance with the Charter”, in preambular paragraph 4. Resolution 1368: 1. emphasised the right to self-defence, 2. condemned the attacks and stated that it “regards such acts, like any act of international terrorism, as a threat to international peace and security”, and 3. called on all States to work together urgently to bring to justice the perpetrators. This was reaffirmed in Resolution 1373 of 2001, adopted under Chapter VII, and the Security Council adopted a series of further decisions under Chapter VII. Resolution 1373 set out the actions that all states must take against terrorism, such as freezing assets, or sanctions. Both Resolution 1368 and Resolution 1373 gave general authorisations: States were to “take the necessary steps to prevent the commission of terrorist acts” and to “cooperate, particularly through bilateral and multilateral arrangements and agreements, to prevent and suppress terrorist attacks and take action against perpetrators of such acts”. 7 October 2001 the USA and the UK reported to the United Nations Security Council that they had commenced the use of military force in self-defence. The US notification stated that:  “My Government has obtained clear and compelling information that the Al-Qaeda organisation, which is ed by the Taliban regime in Afghanistan, had a central role in the attacks [against the World Trade Center, the Pentagon and in Pennsylvania].”  “The attacks on 11 September 2001 and the ongoing threat to the United States and its nationals posed by the AlQaeda organisation have been made possible by the decision of the Taliban regime to allow the parts of Afghanistan that it controls to be used by this organisation as a base of operation. Despite every effort by the United States and the international community, the Taliban regime has refused to change its policy. From the territory of Afghanistan, the Al-Qaeda organisation continues to train and agents of terror who attack innocent people throughout the world and target United States nationals and interests in the United States and abroad. Letter from Ambassador John Negroponte, Permanent Representative of the USA to the UN in New York, to the President of the Security Council, S/2001/946, 7 October 2001. In response to these attacks, and in accordance with the inherent right of individual and collective self-defence, United States armed forces have initiated actions designed to prevent and deter further attacks on the United

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REZ ON INTERNATIONAL LAW States. These actions include measures against Al-Qaeda terrorist training camps and military installations of the Taliban regime in Afghanistan. In carrying out these actions, the United States is committed to minimising civilian casualties and damage to civilian property. In addition, the United States will continue its humanitarian efforts to alleviate the suffering of the people of Afghanistan. We are providing them with food, medicine and supplies.” The USA also reserved the possibility of taking further action: “we may find that our self-defence requires further actions with respect to other organisations and other States.” (Ibid) The British notification stated that: “The United Kingdom has military assets engaged in operations against targets we know to be involved in the operation of terror against the United States of America, the United Kingdom and other countries around the world, as part of a wider international effort. These forces have now been employed in exercise of the inherent right of individual and collective self-defence, recognised in Article 51, following the terrorist outrage of 11 September, to avert the continuing threat of attacks from the same source.” “This military action … is directed against Usama Bin Laden’s Al Qaida terrorist organisation and the Taliban regime that is ing it.” The notification also mentioned the evidence that the British Government had presented to Parliament on the role of al-Qaeda, which “showed that Usama bin Laden and his Al Qaida terrorist organisation have the capability to execute major terrorist attacks, claimed credit for past attacks on United States targets, and have been engaged in a concerted campaign against the United States and its allies. One of their stated aims is the murder of US citizens and attacks on the United States’ allies.” Letter from Stewart Eldon, Chargés d’Affaires, UK Mission to the UN in New York, to the President of the Security Council, S/2001/947, 7 October 2001. 

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Although the initial invasion of Afghanistan was not mandated by a specific UN Security Council Resolution, relying instead on the justification of self-defence, the Security Council moved quickly to authorise a military operation to stabilise the country. Security Council Resolution (UNSCR) 1386 of December 2001 laid down the initial mandate for a 5,000 strong International Security Assistance Force (ISAF) to deploy to the region in and immediately around Kabul, in order to provide security and to assist in the reconstruction of the country under Chapter VII of the UN Charter. Country positions: The US relied on self-defence. The UK relied on individual and collective self-defence. NATO invoked Article 5 of the NATO Treaty which provides that an attack on one NATO member is an attack on all NATO . The OAS and ANZUS took the view that this was an exercise of the right to collective self-defence. This was ed by the EU, China, Russia, Japan, and Pakistan. Reliance on self-defence was rejected expressly by Iran and Iraq. What relatively new and potentially difficult issues may have arisen in determining whether he use of force in Afghanistan could have been self-defence? UNSC Notification –Yes Until UNSC has taken measures necessary to restore international peace and security –Yes Necessary - Need to analyse whether this is justified Proportionate - Appears to be extensive if analyzing from a self-defence perspective which is usually reactive rather than preventive. This was essentially invading a sovereign state to target non-state actors.

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Armed attacks by non-state entities Does the right of self-defence apply in relation to armed attacks by non-state entities? that Article 51 of the UN charter refers to the exercise of self defence where “an armed attack occurs against” a UN member, so Article 51 is silent on this issue. It doesn’t specify who carries out the attack. After 9/11 this became a hot topic. Advisory Opinion on the Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory [2004] ICJ Rep 136 at 194. The Court took what seemed to be a very restrictive approach, noting that Article 51 recognised “the existence of an inherent right of self-defence in the case of armed attack by one state against another state” In her Separate Opinion (para 33) Judge Higgins criticised this approach, pointing out that there is nothing in the text of Article 51 that stipulates that self-defence is only available in the case of armed attack by one State against another State.

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She said this idea that self-defence is only available if one State attacks another derives from the case of Military and Paramilitary Activities in Nicaragua where the Court held that military action by irregular forces could constitute an armed attack if they were sent by or on behalf of the State and the scale or effects of their activity were great enough. Judge Kooijmans in his Separate Opinion also found it “unreasonable to deny the attacked State the right to selfdefence merely because there is no attacker State”. Article 51 doesn’t actually preclude attacks by non-state actors. Democratic Republic of the Congo v Uganda [2005] ICJ Rep 168 The Court was criticised for its reticence here and in the Advisory Opinion on the Wall by Judge Simma in his Separate Opinion in DRC v Uganda. He called for urgent reconsideration of the matter. Judge Simma noted that the proposition that it is legal to use self-defence against attacks by non-state actors has been received far more favourably than the other proposition to emerge from 9/11: the doctrine of the pre-emptive use of force (the Bush doctrine). Use of force in self-defence in relation to large-scale terrorist attacks by non-State actors was affirmed in both UNSC Resolutions, 1368 and 1373.

What kind of relationship might be required between the non-State actors and the State that suffers the effects of measures taken in self-defence? E.g. Afghanistan Not a clear resolution on the matter, but formulas put forward that the states “harbouring” the terrorists. But what does this mean? Is it assisting, or sheltering them? Or is it encouraging them or merely not condemning them? What about if the states say we will deal with them? (Like in Columbia) Anticipatory self-defence: Is Anticipatory self-defence permissible? 1. Anticipatory self-defence as a general concept 2. Pre-emptive self-defence (a broad form of anticipatory self-defence): the claimed right of pre-emptive action is currently widely known under the well-established name of the Bush doctrine, dating from the US action in Iraq in 2003. They dropped the requirement of imminence; it no longer had to be an imminent attack to invoke self-defence. (Following 9/11 the US set out the doctrine in its 2002 US National Security Strategy (see in class) and updated its 2006 US National Security Strategy.) 3.

Interceptive self-defence (a narrow form of anticipatory self-defence): Shaw says that maybe instead of even anticipatory self-defence (where an armed attack is foreseeable), we should have a concept of interceptive self-defence (where an armed attack is imminent and unavoidable). Linked with anticipatory self-defence--

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Bombing of US embassies in Kenya and Tanzania in 1998 On 7 August 1998, US embassies in Kenya and Tanzania were attacked with bombs which killed almost 300 people, including twelve US citizens, and caused considerable damage to property. On 20 August 1998, the US carried out an attack with cruise missiles on facilities in Afghanistan (paramilitary training camps) and in the Sudan (described as a chemical weapons facility, but turning out to be a pharmaceutical factory). These facilities were associated with Al Qaeda, which had been deemed responsible for the attacks on the US embassies, and the United States referred to the targets as “terrorist facilities”. The US declared that it was acting in exercise of its right of self-defence, and consistent with Article 51 of the UN Charter. The US described its missile strikes as “a necessary and proportionate response to the imminent threat of further terrorist attacks against US personnel and facilities”. Shaw, 6th edition, p.1134. The US Report to the Security Council, in a letter dated 20 August 1998 read: “These attacks were carried out only after repeated efforts to convince the Government of Sudan and the Taleban regime in Afghanistan to shut these terrorist activities down and to cease their cooperation with the Bin Laden organisation. That organisation has issued a series of blatant warnings that “strikes will continue from everywhere” against American targets, and we have convincing evidence that further such attacks were in preparation from these same terrorist facilities. The United States, therefore, had no choice but to use armed force to prevent these attacks from continuing... The targets struck, and the timing and method of attack used, were carefully designed to minimise risks of collateral damage to civilians and to comply with international law, including the rules of necessity and proportionality.” Brownlie, 7th edition, pp.745-746.

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8. The use of force in Libya in 2013

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“On 22 February 2011, Libya’s leader Muammar Gaddafi declared in a televised speech regarding the uprisings in his country that ‘a small group, a group of young people, who were given hallucinogenic pills, raided police stations here and there like rats’. He went on to say that ‘anybody who undermines the sovereignty of the state shall be punished with death’.

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Colonel Muammar Gaddafi’s rule of 40 years. 17 February 2011 “Day of Rage”. In advance the authorities stamped down, eg arrest of human rights lawyer Fathi Teibil. Protests began early, ahead of 17 February, 500 - 600 demonstrators on 15 February. Security forces used excessive force, “they fired live ammunition into crowds without warning, contravening not only international standards on the use of force and firearms, but also Libya’s own legislation on the policing of public gathering”. Protests across the country Use of tear gas, batons and live ammunition by security forces 109 initial gunshot deaths in Benghazi Gaddafi forces committed serious violations of international humanitarian law around the country Over 672,000 people fled. Protestors/opposition took over a number of towns and cities. The opposition established a National Transitional Council (NTC) 22 February 2011 League of Arab States suspends Libya 25 February 2011 UN Human Rights Council sets up Commission of Inquiry 1 March 2011 UNGA removes Libya from the Human Rights Council 26 February 2011 UNSC Resolution 1970: 1. demanded an end to the violence 2. referred the situation in Libya to the International Criminal Court (ICC) 3. imposed an arms embargo on Libya 4. imposed a travel ban and asset freeze on Gaddafi and family and certain Government officials.

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March 2011 Arab League tries to get UNSC resolution to put Arab force into Libya (note Article 53(1) of Chapter VIII UN Charter.) Blocked by Russia. 17 March 2011 UNSC Resolution 1973: authorising Member States to take “all necessary measures…to protect civilians and civilian populated areas under threat of attack in the Libyan Arab Jamahiriya, includign Benghazi, while excluding a foreign occupation force of any form on any part of Libyan territory...”(para 4) No fly zone 19 March 2011 immediately following the adoption of UN Security Council Resolution 1973: US, British and French forces began an aerial campaign in Libya US led the first stage then withdrew from offensive operations, and ceded control to NATO and NATO’s Arab allies. Britain and were the active parties within NATO. Initial ceasefire did not last. Libyan government laid siege to Misrata. Britain and continued the NATO campaign, and it was escalated. E.g. in May 2011 NATO jets bombed Libyan ports and we saw the use of attack helicopters by and the UK with escalated strike power. In mid 2011 the International Criminal Court issued arrest warrants for Gaddafi, his son (Saif al-Islam Gaddafi) and the Libyan intelligence chief (Abdullah al-Sanoussi) for crimes against humanity. Gaddafi was killed in October 2011 and the fighting came to an end. Five countries abstained from UNSC Resolution 1973: China, Russia, Brazil, India and . Russia criticised the military assault on Libya and China expressed regret about the attack. “Russian Prime Minister, Vladimir Putin was unsparing in his criticism, comparing the allied campaign against Libya to the invasion of Iraq and likening it to a “medieval call for a crusade.” In a rare expression of dissent between the country’s two leaders, President Dmitri A. Medvedev later criticized the remarks as unacceptable. “The Chinese news media, meanwhile, were vociferous in expressing opposition to the military campaign against the Libyan government, with articles and commentaries depicting the assault as an attempt to grab that country’s oil resources and expand American influence in the region.” Rachel Kendall Was the use of force against Libya legal?

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How far did the response to the situation in Libya advance the R2P doctrine as a matter of international law? Additional issue: Was the French decision to air-drop weapons to the rebels fighting Gaddafi’s troops in Western Libya in June 2011 (said to be light infantry weapons like rifles) legal? Russia and China both considered this a breach of the prior arms embargo in Resolution 1970. Or was the weapons drop legal because of recognition of the NTC as the legitimate representative of the Libyan people? As of mid 20011, NTC considered legitimate representative by Canada, , the UK, Italy, Spain, , the UAE, Qatar, Jordan, Gambia, Senegal and Australia.… Russia and the US initially seemed to think the NTC is a legitimate group, but not the government. Then in July 2011 the US formally recognised the Libyan opposition as the government. Total estimated people killed in the Syrian war in 2011 have ranged up to 25,000 or 30 000, with over a million displaced people leaving the country. Comparison with the decade of violent conflict in Darfur in the west of Sudan, in which 2.7 million people have been forced to leave their homes and about 300,000 are estimated to have died from diseases associated with the effects of the conflict and displacement.

“Why was Libya subject to international intervention so rapidly, when for example, the situation in Cote d’Ivoire has been ongoing simultaneously and still remains in the shadows of Northern Africa? Where was the protection for the Ivorians when both the ex-President Gbagbo and the President Elect Outtara committed their alleged human rights violations?” [after the 2010 elections in Cote d’Ivoire]

9. Syria As of this month: the death toll in Syria is now estimated to be over 160 000 with over 6.5 million displaced people and 2.7 million people having fled Syria     

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In early 2011 protestors in Syria began to demand that their President Bashar al-Assad be removed from power. They met with a violent response, including the use of gunboats. 3 August 2011 UNSC statement calls for an end to all violence by the regime. 22 August 2011 UN Human Rights Council sets up Commission of Inquiry, which conducts its work without the cooperation of the Assad regime, discloses atrocities. 23 December 2011 Arab League’s delegation of peace monitors (comprising about 10 Arab League officials and 50 politicians, military figures and human rights observers) visit the city of Homs, and a number of other cities (Homs is Syria’s 3rd largest city of 800,000 people and was the centre of the revolt). The government’s shelling of Homs and the neighbourhood of Bab al-Amr within Homs becomes intense immediately beforehand. November 2011 Arab League sanctions imposed. Negotiations among UNSC , January and February 2012: Russia and China oppose a draft UNSC resolution on Syria (calling on Assad to step down and endorsing an Arab League Peace plan) because they are concerned it could allow military intervention. 4 February 2012 US President Obama makes a public statement that: “Every government has the responsibility to protect its citizens, and any government that brutalizes and massacres its people does not deserve to govern... Assad has no right to lead Syria, and has lost all legitimacy with his people and the international community. The Council now has an opportunity to stand against the Assad regime’s relentless brutality and to demonstrate that it is a credible advocate for the universal rights that are written into the UN Charter.” 4 February 2012 Russia and China veto the UNSC resolution. UNSG Ban Ki-moon says failure to agree on a resolution is “disastrous” for the people of Syria. Death toll is estimated to stand at 5,000-7,000. 21 February 2012 UNGA adopts Resolution 66/253, A/RES/66/253 (2012) demanding that violence cease. 29 February 2012 death toll is reported to sur 8,000 with 100,000 refugees who have fled to Turkey, Lebanon and Jordan. A referendum in Syria approves a new constitution preparing the way for multi-party elections, though potentially allowing Assad to stay in office for another 16 years. A turnout of 57.4% was claimed with a 90% affirmative vote. 12 March 2012 t UN/Arab League envoy Kofi Annan meets President al-Assad but leaves without a ceasefire. Assad insists that there is no scope for dialogue while armed rebel groups continue to spread chaos and instability. His precondition was that they stop. On 15 March 2012 the regime takes the northern rebel stronghold of Idlib and launches a powerful offensive on Baba Amr.

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23 March 2012 UNSC are reported to have reached agreement on an approach to Syria that involves a climb down by the US, UK and who wanted pressure on Assad to step down, and instead will look for “political transition”. A six point proposal is taken to Assad by Annan. Syria to work with Annan Syrian government violence to stop Humanitarian pause for 2 hours daily for aid delivery and evacuation of the injured Release of those arbitrarily detained to increase in pace and scale, with lists of names provided Freedom of movement for journalists Commitment to respect freedom of association and peaceful demonstration 25 March 2012 President al-Assad gives assurances that he will cease troop movements towards population centres, cease all use of heavy weapons in such centres, and immediately start pulling back his forces and complete a military withdrawal by 10 April under the six point peace plan drawn up with Annan. The plan is to deploy a UN monitoring team of up to 250 in Syria, arriving within 48 hours. But up to 9,000 people are now reported to have died. 21 April 2012 UNSC Resolution 2043 calls for urgent comprehensive and immediate implementation of the six point plan; establishes the monitoring mission under the name UN Supervision Mission in Syria (UNSMIS) with 300 unarmed military observers and a civilian component. The six point plan fails to be implemented and Kofi Annan’s term came to an end in August 2012. In the year that followed the number of people who had been killed in the conflict in Syria multiplied tenfold. UN authorities (Ivan Simonovic, Assistant Secretary-General for Human Rights) said in July 2013 that about 5,000 people were being killed each month, with a total of minimum 92, 901 people between March 2011 and April 2013. By mid 2013 the head of aid at the UN (Valeria Amos) is saying that 6.8 million Syrians need urgent humanitarian assistance, half of them children. The World Food Programme assessment is that 4 million people cannot meet their basic food needs. The Syrian government has restrictions on the delivery of aid and allows in only 14 agencies, and the UN has had problems funding food aid. Ibid for the regime The Syrian regime is supplied with weapons by Russia, which has its only Mediterranean port in Syria, and by Iran. Russia says only that it provides anti-missile defence systems but denies providing attack weapons like helicopters. Iran has also provided weapons despite a UN arms embargo prohibiting weapons from coming out of Iran. Weapons are said to travel by air through Iraq, or through Turkey without permission; carried weekly by the two Iranian airlines Iran Air and Mahan Air. This is said to include communications equipment, light arms, even advanced strategic weapons and parts for unmanned aerial vehicles and ballistic missiles. Iran was also said to have decided in June 2013 to send 4,000 Iranian Revolutionary Guards to Syria to the regime. Iran has previously backed fighters from Lebanon, from the militant group Hezbullah, contributing to the fall of the rebel-held Syrian town of Qusair near the Lebanese border on 5 June 2013.

What are the potential legal justifications?  In this respect it is interesting that the US recognized the Syrian Council as the “legitimate representative of the Syrian people” in December 2012. Stephen Kaufman

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In July 2013 the chairman of the US t Chiefs of Staff (Army General Martin Dempsey) set out 5 options that the US forces would be capable of delivering. Training, advising and assisting the opposition. Could include weapons training, tactical planning and intelligence and logistics assistance. Cost: $500 million a year. Conducting limited stand-off strikes. Would use air and missile strikes to attack Syrian air defences, military f orces and command structure to damage the Assad government's ability to wage war. Cost: could run to a billion dollars a month and risk retaliatory strikes and civilian casualties. Establish a no-fly zone. Would require hundreds of strike aircraft and units. Cost: could be a billion dollars a month and would risk the loss of U.S. planes while potentially failing to reduce violence because Syria relies mainly on surface arms rather than air power. (Proposals for imposing a no fly-zone over Syria to stop attacks by air were opposed by Russia in June 2013.)

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4 Establish buffer zones. Would use force to establish safe zones inside Syria where the opposition could train and organize while being protected from attack by government forces. Cost: over a billion dollars a month and could improve opposition capabilities over time. But the zones could become targets for Syrian attack. 5 Control chemical weapons. Lethal force could be used to prevent proliferation of chemical weapons and to destroy Syria's "massive stockpile" of the weapons. Would require hundreds of aircraft as well as personnel on the ground. Cost: over a billion dollars per month.” “Top US Officer outlines options for military force in Syria” Reuters, 22 July 2013, by David Alexander for the opposition Saudi Arabia already provides for example “Konkur” missiles that can penetrate even the most advanced tank used by the Syrian regime, the Russian T72. On the view of some analysts, the US strategy is to reinforce the power of General Selim Idriss, one of the opposition leaders who has made public statements that he is ready to work in a transitional government plan with people from the regime who are open to that. The United States announcement in June 2013 that it would arm the rebels came directly after indications that Saudi Arabia and Qatar were losing confidence in the rebels’ capacity to fight the regime successfully, especially after the fall of Qusair, and that they were starting instead to jihadist radical religious opposition groups because they might have a better chance of defeating the government. In June 2013 US President Obama again authorized the provision of weapons to selected opposition groups in Syria This has been delayed in practice by the concerns of Congress that weapons could be ed onto fighters linked to Al Qaeda delayed this. US arms have still not been provided. The rebels are said to need anti-aircraft and anti-armour weapons especially. After meeting with Saudi Arabia in March 2014 it appeared that Obama may authorize the shipment of new air defense systems. This US decision to provide arms to the rebels followed on the heels of the lifting of an EU embargo on supplying rebels to anyone in Syria, which came to an end because the UK and wanted to arm the rebels. Assad has warned that European countries will “pay the price” for arming rebels, including because extremist rebels will use their weapons in terrorist attacks in or on European countries.

Peace talks have been held with both the regime and the National Coalition opposition in Geneva, with a second round, the “Geneva II talks, in January-February 2014. Kofi Annan has ed the ‘Geneva process’. He said in March 2013 that it is too late for military intervention to resolve the Syrian situation and that it cannot be resolved by arming rebel groups either: “I don’t see a military intervention in Syria. We left it too late. I’m not sure it would not do more harm”.

Syria after august 2013 with particular attention to the response to the use of chemical weapons in Syria Use of sarin in Damascus, Syria, on 21 August Sarin is a nerve gas invented in in the 1930s. It was used against the Kurds in 1988 by the Iraqi government, killing 5000 Iraqi Kurds in Halabi. It is an odourless, tasteless, colourless liquid that vapourises quickly into a gas. t is very hard to detect both on the spot and after its use because it breaks down very quickly. But tiny amounts remain in the blood for up to 26 days. When inhaled it can kill you from respiratory failure within 1-10 minutes. You only need enough sarin to fit on a pinhead for a fatal dose.  Sarin is considered a weapon of mass destruction under UNSC Resolution 687.  Its use is recognised to amount to a war crime under customary international law.  It is controlled under the Chemical Weapons Convention, but Syria is not a party. Syria is believed to have large quantities of sarin, produced locally since the 1980s in converted pesticide plants. Syria is also believed to have mustard gas, which is a blistering agent used in WW1 which burns the skin, the eyes and the throat and lungs if inhaled. Syria got mustard gas from Egypt in the early 1970s. The CIA believes Syria has also tried to develop a more toxic and persistent chemical weapon, VX gas. Indian and French intelligence reports suggest Syria has about 1000 tons of chemical weapons. In the attack in Ghouta on the outskirts of Damascus on 21 August the US says:  1,429 people were killed, including 426 children.  from intercepted communications they know that Syrian chemical weapons personnel were operating in the area in the 3days before the attack, and of the regime were told to put on gas masks and take related precautions.  the symptoms recorded on film in 100 videos show symptoms consistent with exposure to a nerve agent.  communications intercepted directly after the attack involved a senior Damascus official confirming chemical weapons were used and concerned about UN inspectors obtaining evidence.

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Prior chemical attacks in the Syrian conflict:  19 March 2013 on the edge of Aleppo (Syria’s largest city) near Khan al-Assal/Asal killing 26 people with 80 treated in hospital.  13 April 2013 in the Sheikh Maqsood/Assoud district of Aleppo, with video footage of people showing symptoms of exposure to sarin. 3 people died.  29 April 2013 in Saraqeb/Saraqib in the northwest province of Idlib, with film showing people with the same symptoms. 2 people died. 

US President Obama explaining why he considered there should be an intervention following the chemical attacks.

Form of a US-led military response  The suggestion is that the US would carry out a limited strike and that this would be aimed at preventing and deterring any further chemical weapons attack by the Syrian government.  Most likely, Tomahawk cruise missiles would be launched from the 5 US destroyers off the coast of Syria or from submarines (and possibly from NATO facilities in Cyprus).  Syria would defend itself with air defence systems based on old Soviet-supplied systems, some recently acquired weapons from Russia (SA-22, SA-17) and using radar systems supplied by China.  Syria has also ordered a more capable S-300 system from Moscow but this is thought not to have been delivered or to be operational.  Syria also has shore based anti-shipping missiles. Positions of Syria, the UNSG, and of States.  Syrian Prime Minister Wael al-Halqi says the “Western countries are inventing fake scenarios to intervene in Syria”.  President Al-Assad gave an interview on television that warned the US to expect “everything” if it carried out air strikes.  UN Secretary General Ban Ki-Moon says: “Give peace a chance. Give diplomacy a chance. Stop fighting and… start talking.” “We must consider the impact of any punitive measure on efforts to prevent further bloodshed and facilitate the political resolution of the conflict.” But if chemical weapons had been used in Syria then the Security Council should unite and take action against what would be “an outrageous war crime”.  Pope Francis wrote a letter appealing to G20 leaders not to succumb to “futile” violence”. Proposing a military strike in response to the use of chemical weapons, even without UNSC authorisation:  US, UK,  Turkey ready to take part  Up to 11 countries might have ed a strike: t statement from September 2013 G20 (major economies) meeting in St Petersburg:  Condemned the Syrian chemical weapons attack as a grave violation of the world’s rules, agreed that the evidence pointed to Syrian government culpability, called for a strong international response.  adopted by US, UK, , Turkey, Australia, Canada, Japan, South Korea, Saudi Arabia, Spain and Italy.

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Against a strike: Russia China Iran Vladimir Putin ‘A Plea for Caution from Russia’ in the New York Times : what arguments does Presdient Putin make against an intervention?

Proposal for international control of Syria’s chemical weapons. Russian proposal of 9 September 2013. “Syria has to declare all of its stocks of chemical munitions and agents, and make a full ing of its production facilities. This information has to be studied and inspectors have to go in to carry out a base-line inspection, to that it is both correct and complete. Munitions and so on have to be gathered into secure areas and ultimately by destroyed, a process that requires specialised plant and equipment. Chemical weapons plants have to be monitored to confirm they have either been put out of use or converted for other purposes.” Difficult to envisage even the practicalities of destroying chemical weapons in a civil war, even destroying them on its own has technicalities USA has decreased 90% of its weapons -$35billion over last 2 decades Russia and Libya have used the neutralization method 

US and Russia agreed on a t Framework for the Elimination of Syrian Chemical Weapons, 14 September 2013

Use of force

REZ ON INTERNATIONAL LAW    

OPCW Executive Council: Decision on destruction of Syrian chemical weapons, 27 September 2013 Syria had said yes. This matter before it went to the SC went to the executive council of the OPCW The SC actually annexed the OPCW decision in Res 2118.

UNSC Resolution 2118 of 27 September 2013  Pertinent to Article 39 - Determines that the use of chemical weapons anywhere constitutes a threat to international peace and security (operative para 1)  Endorses the decision of the OPCW Executive Council 27 September 2013 (operative para 3)  Underscores that no party in Syria should use, develop, produce, acquire, stockpile, retain, or transfer chemical weapons; (operative para 54)  Decides that the Syrian Arab Republic shall comply with all aspects of the decision of the OPCW Executive Council of 27 September 2013 (operative para 6)  Under Article 25 of the Charter, the nation-states are obliged to comply with decisions of the SC.  Decides in the event of non-compliance with this resolution, including unauthorized transfer of chemical weapons, or any use of chemical weapons by anyone in the Syrian Arab Republic, to impose measures under Chapter VII of the United Nations Charter (operative para 21) P5 agreement that there will be measures in the event of non-compliance. Removes any absolute removal by any P5 Guarantee of measures It can speed up decisions in the event that non-compliance occurs. Coercive measure on Syria, 

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Use of chemical weapons by the opposition? Russia has said that the first chemical attack in March 2013 was by rebels, based on samples analysed at a Russian Laboratory certified by the Organisation for the Prohibition of Chemical Weapons showing that the missile and the sarin used were not standard industry production and had been manufactured in “cottage industry” conditions. There have been ‘concrete’ but ‘unproven’ assertions that the rebels have used sarin (according to Carla del Ponte of the UN Commission of Inquiry investigating war crimes in Syria).

 The Geneva I talks that were held in mid September 2013 focussed on Syria’s chemical weapons.  We came very close to intervention in Syria in August/September 2013: House of Commons voted against UK intervention.

10. Crimea What is the situation where a declaration of independence consolidates a situation created in violation of the prohibition on the threat or use of force, a ius cogens norm?  See Kosovo Advisory Opinion, para 81 – a declaration of independence may be illegal where it “tries to consolidate a situation created in violation of ius cogens”. Recall the non-recognition of Northern Cyprus 

What is your view on the following?  Did Russia act consistently with Article 2(4) of the UN Charter? Article 2(4): All shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the Purposes of the United Nations. Threshold question. Prima facie, Russia did not act consistently with art 2, But justifications could exist    

Justifications against threat or use of force: Self defence Humanitarian intervention Invitation or consent

What justifications might Russia rely upon for the threat or use of force?

Use of force


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Consider the situation of the everyday life of Ukrainian citizens on the Crimean peninsula…. compare this with the atrocities that prompted intervention in Kosovo, which involved: ‘a systematic campaign of terror, including murders, rapes, arsons and severe maltreatments’ by Serbian actors. Would the Crimean Declaration of Independence be valid under international law in the light of your views on the two questions immediately above on this slide?

Conclusion

1.

Overview on the use of force topic

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The prohibition on the use of force is a characteristic of contemporary international law, together with the multilateral security system embodied in the UN Charter. The prohibition on the threat or use of force is found both in Article 2(4) of the Charter and in customary international law. Force may be used only when authorised under Chapter VII of the Charter by the UN Security Council. This approach is intended to remove subjective judgments by powerful States about when it is acceptable to use force. The UN system has been stymied to a degree by politics, especially interests of the five veto-holding permanent : Russia, China, , the UK and the US. This was most notably the case during the Cold War but not uniquely as we have seen in relation to Libya and Syria.

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The inherent right of individual or collective self-defence is preserved in Article 51 of the Charter and in customary international law.  Article 51 says State may exercise the right of self-defence:  if an armed attack occurs; and  until the Security Council has taken measures necessary to maintain international peace and security; and that  the exercise of the right is to be immediately reported to the Security Council.  For the exercise of the collective right of self-defence a victim State must have declared its status and requested assistance (Military and Paramilitary Activities in Nicaragua) 

The established right of self-defence articulated in Article 51 is subject to two further clear requirements: a) the action taken must be necessary (the Caroline case is often considered to have encapsulated the test as “a necessity of self-defence, instant, overwhelming, leaving no choice of means, and no moment for deliberation); b) the action must be proportionate to the threat (Nuclear Weapons Advisory Opinion; Oil Platforms; DRC v Uganda). The right of self-defence is now recognised to incorporate an anticipatory dimension, due to the nature of modern weapons technology. Shaw suggests this be restricted to a narrow concept of interceptive self-defence. In contrast the post 9/11 Bush doctrine of pre-emptive self-defence as articulated in the 2002 US National Security Strategy is potentially very broad. That doctrine was relied upon by all parties in relation to the invasion of Afghanistan in 2001 after 9/11 and by the US in relation to the invasion of Iraq in 2003 (in addition to relying like the UK on UNSC Resolutions 678, 687 and 1441).

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Clearly, the events of 9/11 have greatly changed the contours of international law relating to the use of force in self-defence: by placing a great emphasis on self-defence; because of the wide acceptance here of a far reaching exercise of preemptive self-defence involving the invasion of a country and involvement in an ongoing war there for over a decade; by endorsing the exercise of the right in relation to attacks by non-state actors.

We have also seen Ch VII of the UN Charter working in the most classical and orthodox way “to restore international peace and security” under UNSC Res 678 in relation to Iraq’s 1991 invasion of Kuwait. Action in Libya under UNSC Res 1973 was much less orthodox, ambiguously authorising in para 4 the use of “all necessary means to protect civilians”. The way in which force was used in Libya was one of the factors leading to grave difficulty for the SC in dealing with Syria because of concern that intervention should not readily be mandated, especially if oriented around the change of a leader or ruling regime.

Use of force

REZ ON INTERNATIONAL LAW In the light of the situation in Syria we may well ask ourselves, and reflect on, the future of the doctrines of humanitarian intervention (as seen in Kosovo in 1999 and the previous northern and southern Iraq no fly zones in 1991) and the Responsibility to Protect (articulated in the 2001 report of the International Commission on Intervention and State Sovereignty in Ottawa, and seen in a series of high level documents including the 2005 World Summit Outcome). These doctrines do not presently appear to provide a basis for use of force without UNSC authorisation under customary international law, although the UK has continued to assert that there may be a doctrine of humanitarian necessity. 2. A Responsibility Not to Veto? “RN2V” “The Security Council is crucial and its response to genocide and mass atrocities must be made more effective; the RN2V proposal can address the Council’s perceived credibility gap.”    

The RN2V is essentially the idea that the P5 will refrain from exercising the veto in cases of mass atrocities. Simon Adams, Director, Global Centre for the R2P, New York,suggested we consider what the situation would have been in Libya if Russia and China had refused to let the UNSC authorise use of force. …He asked whether Benghazi could have become this decade’s Srebrenica? The history of the idea of RN2V is as follows:  January 2009 UNSG publishes a report called Implementing the Responsibility to Protect which considered among other matters the need for reform in relation to the way the veto power is exercised.  This drew attention to the high costs for ‘anyone seen to be blocking an effective international response to an unfolding genocide or other high-visibility crime relating to the responsibility to protect.’ (para 61)  Report described the veto power as a privilege.  P5 (permanent five) States had particular responsibility ‘to refrain from employing or threatening to employ the veto in situations of manifest failure to meet obligations relating to the responsibility to protect’ in situations of genocide, war crimes, ethnic cleansing and crimes against humanity. (para 61)

General Assembly debate 2009: from South Korea, Liechtenstein, Lesotho, Costa Rica, Denmark, Italy, Malaysia, New Zealand, Rwanda, Solomon Islands, South Africa, Slovenia, Switzerland, Singapore, Timor-Leste and Norway, Bolivia.  A group of States is launched in May 2013 called the ability, Coherence and Transparency Group (ACT) which includes NZ has been pushing for a General Assembly resolution on the working methods of the UNSC, which would include the idea of voluntary restraint. Late 2013:  French Foreign Minister Fabius says there should be a Code of Conduct for Permanent .  puts forward a proposal for UNSC reform involving moderation of the veto by means of a reinterpretation of the veto power in the Charter. 3.  

Remarks on cyber attacks and self defence “Concerns have been mounting for some time about the ineffectiveness of U.S. approaches to protect cyberspace. This was exemplified by a December 2008 report by officials for the US President, which argued that “America’s failure to protect cyberspace is one of the most urgent national security problems facing the new istration.” David P. Fidler, 2011.

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taking office, the Obama istration conducted a cyberspace policy review, which concluded that “[t]hreats to cyberspace pose one of the most serious economic and national security challenges of the 21 st Century for the United States and our allies. This led to the establishment in 2010 of the U.S. Cyber Command – a specific military combatant command dedicated to the development and deployment of “full spectrum” U.S. military cyber-capabilities.” The aim was to get ahead of rival capabilities elsewhere, notably in China. The idea of a cyber-command also builds on the realisation that traditional conceptions of the realms we need to defend or in which we may need to do battle need expanding beyond air, and sea and space by adding the digital realm. All this led, in due course, to the publication by the Obama istration in May 2011 of the International Strategy for Cyberspace: Prosperity, Security, and Openness in a Networked World. “The purpose of the International Strategy is to seek to ensure for instance that cyber-technologies are open, interoperable, secure, reliable, and stable.” For instance, “A theme running through the International Strategy is the need for the “rule of law” in cyberspace governance.” “The International Strategy also makes clear that many existing principles of international law operating in times of peace and conflict also apply in cyberspace.”

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Domestic courts’ relationship with international law


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These existing international legal rules include respect for the fundamental civil and political rights of freedom of expression and association, privacy, and property; and the right to use force in individual or collective self-defence in response to armed attacks.” Fidler However, as David Fidler has pointed out: “Despite acknowledging the importance of existing international legal rules, the International Strategy never mentions two basic principles affected by its content – respect for sovereignty and non-intervention in the domestic affairs of other states.” In January 2013, a US military review set out suggested guidelines involving the US President’s approval for preemptive cyber-strikes. Military officials are reported to have suggested that Presidential approval ought to be required because of the potential magnitude of the effects of such strikes, likening them in this respect to nuclear weapons. At the same time, a major expansion of the US Cyber-Command has been proposed, from about 900 people to 4900 including both civilians and of the military. “The troops would be assigned to:  “national mission forces” safeguarding electrical grids and other vital infrastructure;  “combat mission forces” to carry out digital operations around the world; and  “cyber protection forces” focused on defending the military’s own computer networks.” De Luce “Obama has reportedly approved at least one cyber attack, a digital assault on networks used at Iran’s uranium enrichment sites. The operation, code-named Olympic Games, was revealed in articles and a subsequent book by New York Times reporter David Sanger.”  Sanger’s book describes “a t program of Israel and the United States to insert malicious software into the machinery of the Iranian military-industrial complex and so set back Iran’s ability to manufacture weaponsgrade uranium. Specifically, in 2008 and 2009 the software threw off the balance of centrifuges at the Natanz nuclear enrichment centre. It did so in a variety of unpredictable ways, making it at first seem like the problems were random or the result of Iranian incompetence.” Review by Thomas E. Ricks

Domestic courts’ relationship with international law    

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Dualism “Two systems”: international and domestic law are separate legal orders, international law is not part of domestic law. Classical international law deals with relations between states and therefore occupies a different terrain to domestic law, which deals with what takes place within each state. If an issue arises concerning harm to an individual by a State of which he or she is not a national, this can be taken up on the international plane by the individual’s State of nationality using the mechanism of diplomatic protection. E.g. Mavromattis Palestine Concessions [1924] PCIJ Series A No. 2. Greek espousal of Mavromattis’ claim against Great Britain: ‘It is an elementary principle of international law that a State is entitled to protect its subjects, when injured by acts contrary to international law committed by another State, from whom they have been unable to obtain satisfaction through the ordinary channels.’ at 12. For a rule of international law to have effect within the domestic legal order, it has to be turned into a rule of domestic law. And if a conflict between a rule of international law and a rule of domestic law arises within domestic law, it is to be determined according to domestic law (i.e. the national constitution) which rule will be given effect. If domestic law says that domestic authorities must give effect to domestic law or policy and not international law, what will be the result as a matter of international law? (Klabbers, p 289)   

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For example… Consider imports into New Zealand of genetically modified organisms (GMOs), governed by the Hazardous Substances and New Organisms Act 1996 (see s 6) GMOS pose a range of environmental concerns that NZ takes seriously. The Environmental Protection Agency (EPA), taking a decision on an application for import, might decide to refuse an application for import regardless of whether this put us in breach of our international legal obligations e.g. under WTO agreements. Klabbers (p 296 top para) describes one technique that could be used in New Zealand… adoption of a law to which the treaty is annexed with the law providing that the treaty is to have the force of domestic law.



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

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Let’s consider each of the statutes below and how each one gives effect to the relevant international treaty. United Nations Act 1946 This Act gives effect to Article 41 of the UN Charter by setting up a system under which NZ can implement UN sanctions put in place by the UNSC, such as freezing exports and imports and freezing bank s of named countries and groups. Diplomatic Privileges and Immunities Act 1968 s 5(1) “Subject to subsection (6), the provisions of Articles 1, 22 to 24, and 27 to 40 of the Convention shall have the force of law in New Zealand.” Geneva Conventions Act 1958 s3(1): “Any person who in New Zealand or elsewhere commits, or aids or abets or procures the commission by another person of, a grave breach of any of the Conventions or of the First Protocol is guilty of an offence.” United Nations Convention on the Law of the Sea Act 1996 This Act gives effect to the provision of UNCLOS dealing with deep sea bed mining by establishing a licensing system in NZ for deep seabed mining. International law doesn’t have force in NZ unless Parliament gives them that force but it often doesn’t it just sets up the mechanism to give effect to them.

Monism “One system”: international and domestic law are not separate legal orders, international law is part of domestic law. Hans Kelsen’s concept of a universal legal order, like a tree with many branches, or a body with many parts. What are some of the advantages of monism identified by Klabbers? (p 299)  Very straightforward and helps to overcome parochialism.  The idea that individuals are the ultimate subjects of international law was emphasized by Sir Hersch Lauterpacht, a “forceful exponent of a version of monism”. E.g. you could avoid a situation like the US death penalty cases. What are some of the advantages of dualism identified by John Jackson as described by Klabbers? For these reasons Jackson advocated “prudent dualism”.

What points does Klabbers make in his final remarks? (p 303) “[T]he time when international law was solely relevant on the international plane has decidedly ed…”

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Pluralism (Simultaneous application) Crawford writes that neither of the two theories of dualism or monism offers an adequate of the practice of national and international courts. He describes Fitzmaurice’s of how national and international law operate in practice, describing any conflict between them not as conflict between two “systems” but merely as a conflict of specific obligations. He also describes Rousseau’s characterisation of international law as a law of coordination – it does not override or set aside domestic rules – it just provides that the law on state responsibility will apply where a rule of international law is not followed. Crawford’s 8th edition of Brownlie, 50 Crawford encourages us to “leave behind the glacial uplands of juristic abstraction”. He says that for those working in both domestic and international law the system they work in seems relatively autonomous. If we need a theory, “The only theory which can adequately for this fact is some form of pluralism”. Idem. “As soon as one asks what approach a given system (international law, English law, French law…) takes to another, the mist clears: it is possible to state the position with clarity and to understand that each system reserves to itself the authority to determine for the time being the extent and of interpenetration of laws and related issues of the separation of powers”. Idem.

Consistent with this pluralist understanding Crawford goes on to frame his discussion of the relationship between national and international law in of: A International Law’s Approach to National Law & B National Law’s Approach to International Law A International Law’s Approach to National Law


REZ ON INTERNATIONAL LAW As we have seen the basic principle is that: “A state cannot plead provisions of its own law or deficiencies in that law in answer to a claim against it for a breach of its obligations under international law”. Crawford, 51 We have seen this same principle at work in:  See Article 27 VCLT – failure to perform a treaty,  Article 46 VCLT – invalidity of consent to a treaty,  Article 3 ILC Articles on State Responsibility. B National Law’s Approach to International Law The central question will be whether domestic law considers international law to be part of domestic law. In summary, so far as NZ is concerned:  NZ law does not regard treaties as part of domestic law.  NZ law regards customary international law as a source of the common law. (i)  

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Treaties In the UK and in NZ the doctrine of transformation gives effect to the underlying doctrine of parliamentary sovereignty. A treaty may be transformed into domestic law by means of a statute, and then it has to be complied with as a matter of domestic law, but this is due to the authority of the statute, and of Parliament, not of the treaty. It’s important to know, though, that most of the time we don’t transform a treaty into domestic law. We simply draft any statutory amendment that might be needed in order to achieve the outcome. This might not even involve using the language of the treaty. At the same time, common law presumptions of statutory interpretation require that statutes be interpreted consistently with international law – and the courts may use laws to interpret treaties as part of this process, which they will do using the rules in the Vienna Convention on the Law of Treaties 1969. This is different for instance to the approach in where the executive branch will provide the courts with interpretations of treaties, through the Ministry of Foreign Affairs

Consider Sellers v Maritime Safety Inspector [1999] 2 NZLR 44.  Facts: Sellers was the owner and master of a boat ed in Malta, ie the boat’s flag State was Malta. He sailed without clearance under s21 Maritime Transport Act 1992 from NZ for an overseas port, refusing to carry the emergency equipment required (by the Director of Maritime Safety) to be carried for s21 clearance to be granted.  He argued that the requirements of NZ law were inconsistent with the freedom of the high seas.. The equal right of nations to uninterrupted use of the high seas, ie not to have other States assert jurisdiction over you on the high seas, except in accordance with international law.  Who has jurisdiction over ships on the high seas? The flag state, under Article 92 UNCLOS and customary international law. So in Seller’s case that is Malta.  Exceptions to the freedom of the high seas include…  Universal jurisdiction over the crime of piracy.  Jurisdiction to visit and search vessels on the high seas under treaties to enforce the prohibition on the slave trade.  Jurisdiction to take such measures on the high seas as may be necessary to prevent, mitigate or eliminate grave and imminent danger threatening a State’s coastline or related interests under the International Convention relation to Intervention on the High Seas in cases of Oil Pollution Casualties.  Seller’s case did not fall under any of these exceptions, so NZ would not have jurisdiction over him on the high seas under any of these exceptions.  When NZ required the masters of pleasure craft leaving NZ to comply with s21 Maritime Transport Act, as the Director of Maritime Safety said, this involved exercising some form of control over them on the high seas… it was a measure trying to ensure that yachts that got into difficulty on the high seas had emergency locator beacons and radio transceivers.  So the Court took the view that if the case against Sellers were upheld, NZ would be exercising jurisdiction over pleasure craft on the high seas beyond the extent to which NZ is permitted to exercise jurisdiction under international law.  Keith J then came to the interpretation and application of s 21 Maritime Transport Act 1994.  The Court insisted on reading s 21 of the Act consistently with international law.  This provision was not to be understood as conferring powers on the Director that went beyond the scope of NZ jurisdiction under international law.  Therefore, the Court concluded that the Director was acting outside his powers when he refused clearance to Sellers. Sellers’ conviction was quashed.

REZ ON INTERNATIONAL LAW (ii)

Customary International Law The idea that customary international law is part of the law of England is described as the principle of incorporation, articulated by Lord Mansfield in 1737 and adopted by Blackstone: “the law of nations, whenever any question arises which is properly the object of its jurisdiction, is here adopted in its full extent by the common law; and is held to be a part of the law of the land.” Blackstone Commentaries IV, chapter 5, i.e. customary international law is incorporated within the common law Lord Millet in the Pinochet case that “Customary international law is part of the common law”. Ex Parte Pinochet (No. 3) [2000] 1 AC 147, 276. Part of the rationale here is that this means that even as customary international law changes and develops domestic law can remain consistent with it, a point generally understood from the dictum of Lord Denning MR in Trendtex Trading Corp v Central Bank of Nigeria [1977] QB 529, 554 (CA). On a more nuanced view, espoused by Crawford (p 68), “the position in England is not that custom forms part of the common law…but that it is a source of English law that the courts may draw upon as required”.This has been the view of J Brierly, “International Law in England” 51 LQR 1935, 24, 31, cited by Shaw, 6th Ed, 147. And there are limits on the common law…it will not always take in all customary international law E.g. the courts cannot create new criminal offences; this can only be done by statute. So if a new international crime comes into being under customary international law there will need to be legislation to give effect to it domestically. E.g. a crime of aggression on the part of individuals.   

This approach informed the reasoning of the House of Lords in R v Jones [2006] UKHL 16. This was an appeal by defendants who had caused criminal damage at military bases in the UK as part of a protest against the invasion of Iraq. They argued that they were acting to prevent the commission of the crime of aggression. The House of Lords found that aggression was not a crime in English domestic law.

C National Law’s Approach to International Law in Civil Law Countries In European jurisdictions, treaties have direct effect in domestic law – with Parliaments in countries such as the Netherlands, and the Russian Federation having an involvement in the treaty-making process before a treaty is accepted.  In many European jurisdictions, customary international law is also approached from a monist perspective and even given constitutional status in some countries. e.g. German Grundgesetz, 1949, Article 25: “The general rules of public international law shall be an integral part of federal law.” 

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