Professional Documents
Culture Documents
Public International Law Exam Notes
Public International Law Exam Notes
1
History and theory of international law
REZ ON INTERNATIONAL LAW
Contents:the
1. Emergence of the modern state using as a reference point Peace of Westphalia 1648.
2. Core characteristics of international law.
3. Looking back before the Peace of Westphalia.
4. Looking forward from the Peace of Westphalia.
5. How much do breaches of international law matter?
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.
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 todays Germany), 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 its 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. Its 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.
2
History and theory of international law
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 terms 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 1600s, 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.
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.
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.
3
History and theory of international law
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 Brierlys 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 terms 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)
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).
Remember 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).
4
Sources of international law
REZ ON INTERNATIONAL LAW
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 its 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
Treaties, Conventions, International Agreements, Pacts, General Acts, Charters, Statutes, Covenantsthese are all
usually treaties and are binding instruments
Declarations, Memoranda of Understanding, Resolutionsthese 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!
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.
Sources of international law
REZ ON INTERNATIONAL LAW
= Fact + belief!
Shaws 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.
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
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 theres the belief that its a custom (i.e. states are not just acting
this way because there is a treaty but they actually believe its a custom).
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 users are always some who mark the soil more deeply
with their footprints.
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.
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 support 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 supporting 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 support - 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 Courts 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 theres 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 cant
be bound if you dont believe it is law.
However is it realistic to expect a state to object to every issue?
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 Nicaraguas 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 Nicaraguas 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.
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 States 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
Sources of international law
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 self-
defence on behalf of Nicaraguas 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.
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 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.
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.
Joint proposal by Elihu Root (former US Secretary of State) and Lord Phillimore (British maritime jurist) was
accepted. Root and Phillimore regarded the principles in terms 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 France) (New Zealand v France) (Jurisdiction) [1974] ICJ Rep 457.
1970s case: Atmospheric testing
1990s case: Underground testing
Our focus is on the earlier Atmospheric testing case. France had announced that the last test was to occur Court chose
not to decide the case due to this assurance.
Facts: France 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 France 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 States intention to be bound and the
principle of good faith.
Pacta sunt servanda doctrine that isnt 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.
Sources of international law
REZ ON INTERNATIONAL LAW
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.
Pros Cons
Easier to put in place and represent diversity Principle that international law is based on
of views and positions 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.
A step in the development of new Detached from international law based on
international law (often seen in the Human state behaviour. A head without a body.
Rights field from declaration to convention)
Has political brevity (offer platform of Relationship with democracy at a national
pressure points for government action) level? If you have national processes
A sign of democratisation of international law Bypasses the national law making process.
making as its processes are more inclusive
and deliberate process.
Not enforeceable
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.
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.
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 Courts
findings on each point.
1. ICCPR 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 self-
defence.
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.
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
Sources of international law
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.
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 non-
recourse 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 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.
Sources of international law
REZ ON INTERNATIONAL LAW
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.
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 members 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.
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 terms 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.
Conclusion
Conclusion of a Treaty - The completion of negotiations and adoption of a treaty.
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
REZ ON INTERNATIONAL LAW
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
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.
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
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.
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
REZ ON INTERNATIONAL LAW
Entry into force Article 24(1): A treaty will enter into force on the terms specific in the treaty.
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 registered 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 Provision Description
VCLT
A treaty shall be interpreted in good *The Golden Rule*: This is always your starting point.
faith in accordance with the ordinary
meaning to be given to the terms of This is a textual approach in that what matters is the text of the
31(1)
the treaty in their context and in the treaty over and above the intention and aim of the treaty, although
light of its object and purpose. these factors are important and come into the formula when we go
to unpack it.
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 Context includes text (including preamble and annexes) as well as
31(2) the parties in connection with the agreements or instruments made in connection with the treatys
conclusion of the treaty; conclusion.
(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 account, Also to be taken into account are:
31(3)
together with the context:
Any subsequent agreement between
the parties regarding the
(a) - Subsequent agreements on interpretation
interpretation of the treaty or the
application of its provisions;
Any subsequent practice in the
application of the treaty which
(b) - Subsequent practice in interpretation establishing agreement
establishes the agreement of the
parties regarding its interpretation;
Any relevant rules of international - Any relevant rules of international law applicable in the
law applicable in the relations relations between the parties. These could be rules from any
between the parties. of the sources of international law, eg customary international
law. This sometimes called the principle of systemic
(c)
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
REZ ON INTERNATIONAL LAW
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.
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.
Application
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 members 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
REZ ON INTERNATIONAL LAW
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.
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.
France 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.
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 admit 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:
Gabikova-Nagymaros 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
Hungary listed a number of elements that had changed fundamentally including the notion of socialist integration,
both States conversion to market economies and the treatys transformation into an environmental disaster.
Court found that prevalent political conditions and economic systems were not so closely linked to the treatys 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 Courts 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 (Hungarys 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 Joint 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.
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
REZ ON INTERNATIONAL LAW
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 signing, ratifying, accepting, approving or
acceding to a treaty, whereby it purports to exclude or to modify the legal effect of certain provisions of the treaty in their
application to that State. (Article 2(1)(d)).
Reservations have a reciprocal effect. They apply to both states - Libyan Peoples 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
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:
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.
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.
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 cant force states to oblige with Treaties they dont consent to. It
would be highly nonconsensual.
- Criticised for being highly non-consensual. States are bound by terms 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 ICCPR which deals with reporting requirements. Human Rights
Commission doesnt accept their reservation, and sees them bound without the benefit of the reservation sending
reminders about its reporting obligations
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'tre of the treaty.
Raison d'tre: 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'tre;
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 (Democratic Republic of Congo v
Rwanda) ICJ Rep 2006
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 DRCs argument? What did the Court view as the relationship between peremptory
norms of international law and the Courts 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 Courts 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.
In the light of that, was the Court prepared to view Rwandas 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 joint separate opinion. Did they consider the Court
to have an important role under the Convention?
Yes, while it is States who monitor of each others 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.
Theyre tried to leave the door open. The weight of 5 judges may just be enough to do that.
REZ ON INTERNATIONAL LAW
To summarise: The ILC has staked out the middle ground which says invalid reservations may be severable. But
taking into account 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
REZ ON INTERNATIONAL LAW
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 dont have objective legal personality
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 (Europes ministates).
A defined territory
Consistent band of territory that is governed by the State.
Klabbers calls it a core territory
The subjects of international law
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?
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 didnt 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.
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 Germany
previously separate prior states cease to exist. Post-War Germany, the allied powers assumed supreme authority and
Germany 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.
The subjects of international law
REZ ON INTERNATIONAL LAW
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 seatbut Croatia, Slovenia and
Bosnia and Herzegovina also claimed to be successor States. International community didnt recognise Serbia and
Montenegro as the sole successor state thus they had to admit to the UN as a new state.
In 2000 the Republic of Yugoslavia was eventually admitted 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 Courts Statute in 1999.
Self-determination
Article 1 ICCPR: 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 administration of Non-
Source of self-determination:
Customary international law (Article 38(1)(b) ICJ Statute)
Jus cogens i.e. preemptory norm under Art 52 VCLT
Treaty rule ICCPR + 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
Decolonisation
The subjects of international law
REZ ON INTERNATIONAL LAW
Wide-ranging state practice and opinio juris supporting self-determination as a rule of customary international law of
ius cogens status.
Article 1(2) UN Charter noted as one of the UNs 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.
III. 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 determinetheir 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 territorys 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.
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.
Remember 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.
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 ICCPR is for communications by individuals
about breaches of rights in the Covenant.
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 States territorial integrity and
political unity?
Article 46 Drip importance of territorial integrity
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
ICCPR, 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 States 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 StateFRD Savings Clause; ICCPR 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 States 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 states territorial integrity and political
unity?
Would Crimeas 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 lawalthough it might be illegal under
national law.
If Crimea had wished to remain an independent country rather than joining 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
Supports the notion that the Ukraine should remain territorially whole
Would Crimeas 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
The subjects of international law
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 administration 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 account, 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 administered entity within the recognised confines of the Republic of
Cyprus and dependent upon Turkish assistance.
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
Sunday 16 March 2014: referendum held in Crimea with a claimed 82% participation, they were asked the
following two questions:
1. Are you in favour of the Autonomous Republic of Crimea reuniting with Russia as a constituent part of the Russian
Federation?
2. Are you in favour of restoring the Constitution of the Republic of Crimea of 1992 and of Crimeas status as part of
Ukraine?
The reported outcome is a 96% vote in favour of joining 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 join 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 admitting 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.
Crimeas 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.
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
REZ ON INTERNATIONAL LAW
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
You will recall the ILC fulfils the General Assemblys 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
2. Notion of fault set aside > simple rule that wrongful act creates responsibility Cassesse adds that two forms or
categories of State accountability are reflected in the ILCs work:
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
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 States 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
E.g. Rainbow Warrior Arbitration (New Zealand v France) [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 France
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
(France 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.
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:
The law of responsibility
REZ ON INTERNATIONAL LAW
Intervention: By financial support, training, supply of weapons, intelligence, logistical support 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. Tadi (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)
Remember, 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 members of the (Yugoslavia Peoples
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.
Carried out by militants with no official statusarmed 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 States 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.
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 States 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 States inherent right of self-
defence 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.
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 France - France refused to allow a change of gauge in
London for flights from the US West Coast. This breached the US-France Air Services Agreement. As a
countermeasure the US suspended all Air France 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: Germany had violated international law because:
Portugal had not been in breach to begin with, although the Naulilaa incident was deplorable;
Germany had not requested peaceful settlement first;
Germany 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 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.
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).
Essential interest?
Peril grave and imminent, no other means.
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 Israels 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?
i.e. you cannot rely on circumstances precluding wrongfulness in case of breach of a peremptory norm/rule of
ius cogens
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.
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 France
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.
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.
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 rgime, 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 ICCPR)
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.
The law of responsibility
REZ ON INTERNATIONAL LAW
The Court didnt 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
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.
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.
The law of responsibility
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 Argentinas
invasion of the Falkland Islands in 1982 and Iraqs 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].
1. 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.
2. 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
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 Commissions 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.
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.
What happens where there could potentially be responsibility both on the part of a State and an international
organisation?
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.
The law of responsibility
REZ ON INTERNATIONAL LAW
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 France, 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.
Which approach do you consider the better one for determining the attribution of responsibility in peacekeeping
missions, effective control or ultimate authority and control?
The distinction is meant to be ultimate control as in only UN. NATO is always attributed to the UN.
(1) BREACH
What were the alleged breaches by France of international legal obligations in the NZ-France Agreement?
Failing to seek NZ consent to removals in good faith
Removing M & P
Continuous absence of M & P
The law of responsibility
REZ ON INTERNATIONAL LAW
(2) ATTRIBUTION
Were the relevant acts attributable to France?
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.
What wrongful acts did the Tribunal consider France 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. 559-
560
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 remember New Zealand had also sought a declaration that France was under an obligation to return the agents to
Hao for the balance of their 3 year periods.
Ken Keith dissented on this point.
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
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.
International courts and tribunals
REZ ON INTERNATIONAL LAW
Shaw goes so far as to say, international law has always considered its fundamental purpose to be the maintenance
of peace (p. 1010).
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 members.
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.
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 Panel established under the Convention on the Conservation and Management of High Seas Fishery
Resources in the South Pacific Ocean 2013.
Government of Sudan/Sudan Peoples 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
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) admissibility
(3) jurisdiction
(4) merits
(5) compensation
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 comptence de la comptence
These are 6 potential bases of the jurisdiction of the ICJ in contentious cases referred to by Klabbers.
1. All cases which the parties refer to it (Article 36(1) ICJ Statute)
International courts and tribunals
REZ ON INTERNATIONAL LAW
2. All matters specially provided for in the Charter (Article 36(1) ICJ Statute)
3. All matters specially provided for in treaties and conventions in force (Article 36(1) ICJ Statute)
4. 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
5. Transferred jurisdiction, Article 37 ICJ Statute
6. 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 encompassing:
(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)
Non-appearance:
In case of a respondents non-appearance, the Court must satisfy itself that an applicants claim is well founded
in fact and law, Article 53 ICJ Statute.
e.g. France did not appear in the Nuclear Tests cases (1974) dealing with atmospheric nuclear testing;
cf France 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. France) Case [1995]
ICJ Repdealing 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.
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.
Consultation
Creating an opportunity to discuss an issue.
International courts and tribunals
REZ ON INTERNATIONAL LAW
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
A disinterested third party investigates the facts.
Process established under the Hague Convention for the Peaceful Settlement of International Disputes 1899.
Report of the Secretary-Generals Panel 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 accounts, they were firing before boarding with live fire (including from automatic and semi-
automatic weapons), stun and smoke grenades, paintball guns and rubber bullets.
UN panel was led by New Zealands Sir Geoffrey Palmer, and the outgoing Colombian president, lvaro 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.
Passengers 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 support 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 Israels 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 terms for a settlement of the dispute
These may be presented in the form of a report (non-binding)
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 dont 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
REZ ON INTERNATIONAL LAW
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 members of the United Nations Security Council as set out in Article 23 of the UN Charter are:
China; France; Russia; United Kingdom; United States of America
The non-permanent members shall be elected for a term of two years.
Article 27 tells us about the voting power of the permanent members of the UNSC that permanent members 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 members of the General Assembly, and ratified into their constitutional processes by
two thirds of the members of the UN, including all the members of the SC.
The responsibility conferred on the UNSC by the members 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 members 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
Members 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.
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.
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.
Use of force
REZ ON INTERNATIONAL LAW
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
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 Herzegovinas 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
Courts 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
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 anothers 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)
members 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 Councils 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.
Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v Uganda) [2005] ICJ Rep
168, in relation to Ugandas 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?
Use of force
REZ ON INTERNATIONAL LAW
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
account 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. Libyas
1992 refusal to prosecute or extradite those alleged to have bombed Pan Am flight 103, blowing it up above
Lockerbie in Scotland.
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.
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 doesnt
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.
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
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 self-
defence 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 account 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 account the scale of the US actions, which also included destroying two Iranian frigates, a
number of other naval vessels and aircraft, and other action.
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 dont 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).
2. The second model of humanitarian intervention referred to by Brownlie is connected with two precedents:
(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 NATOs 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.
Use of force
REZ ON INTERNATIONAL LAW
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, France, Germany, 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 Courts jurisdiction under Article 36(2) of the ICJ Statute,
according to which Spain did not recognise the Courts jurisdiction in cases where the other party had
accepted the Courts jurisdiction less than 12 months before filing a case (which was the case here).
In the cases against the UK, Portugal, the Netherlands, Italy, Germany, France, 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.
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.
Brownlie also points out that the UKs 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).
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 France 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.
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 support in 2 major UN Reports in 2004 and 2005: Report of the UN High Level Panel 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 support 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,
Use of force
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.
The High Level Panel 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.
The UNSCs response to Iraqs 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 Iraqs purported annexation of Kuwait
had no legal validity.
Additional resolutions followed.
UNSC Resolution 665 (1990) adopted on 25 August, expressed grave alarm at Iraqs 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 support for the actions undertaken. Twelve countries contributed troops and
another 27 gave logistical and financial support.
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.
Use of force
REZ ON INTERNATIONAL LAW
The work of the UNCC eventually made a valuable contribution to international law and procedure on matters
including reparation for environmental harm during conflict.
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.
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 Iraqs 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 Iraqs 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.
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.
Use of force
REZ ON INTERNATIONAL LAW
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.
Intervention in Afghanistan
Operation Enduring Freedom - launched 7 October 2001
U.S. and British Special Forces including large scale U.S. air support, supporting 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.
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.
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
Use of force
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 Ladens Al Qaida terrorist organisation and
the Taliban regime that is supporting 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, Chargs dAffaires, UK Mission to the UN in New York, to the President of the
Security Council, S/2001/947, 7 October 2001.
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 members.
The OAS and ANZUS took the view that this was an exercise of the right to collective self-defence. This was
supported 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.
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 self-
defence merely because there is no attacker State.
Article 51 doesnt actually preclude attacks by non-state actors.
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)
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).
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.
Use of force
REZ ON INTERNATIONAL LAW
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 measuresto 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 NATOs Arab
allies.
Britain and France were the active parties within NATO.
Initial ceasefire did not last.
Libyan government laid siege to Misrata.
Britain and France 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 France 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 Germany.
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 countrys 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 countrys oil resources and expand American influence in the region.
Rachel Kendall
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 Gaddafis 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, France,
the UK, Italy, Spain, Germany, 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
dIvoire 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 dIvoire]
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
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 Leagues 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 Syrias 3rd largest city of 800,000 people and was the centre of the revolt).
The governments shelling of Homs and the neighbourhood of Bab al-Amr within Homs becomes intense
immediately beforehand.
November 2011 Arab League sanctions imposed.
23 March 2012 UNSC members are reported to have reached agreement on an approach to Syria that involves a
climb down by the US, UK and France who wanted pressure on Assad to step down, and instead will
look for political transition.
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 Annans 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
Support 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 support 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.
In July 2013 the chairman of the US Joint Chiefs of Staff (Army General Martin Dempsey) set out 5 options that the
US forces would be capable of delivering.
1 Training, advising and assisting the opposition. Could include weapons training, tactical planning and
intelligence and logistics assistance. Cost: $500 million a year.
2 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.
3 Establish a no-fly zone. Would require hundreds of strike aircraft and support 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.)
Use of force
REZ ON INTERNATIONAL LAW
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
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 supported 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 dont see a military
intervention in Syria. We left it too late. Im not sure it would not do more harm.
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.
US President Obama explaining why he considered there should be an intervention following the chemical attacks.
Proposing a military strike in response to the use of chemical weapons, even without UNSC authorisation:
US, UK, France
Turkey ready to take part
Up to 11 countries might have supported a strike:
Joint statement from September 2013 G20 (major economies) meeting in St Petersburg:
Condemned the Syrian chemical weapons attack as a grave violation of the worlds rules, agreed that the evidence
pointed to Syrian government culpability, called for a strong international response.
adopted by US, UK, France, Turkey, Australia, Canada, Japan, South Korea, Saudi Arabia, Spain and Italy.
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?
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 joint 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.
The Geneva I talks that were held in mid September 2013 focussed on Syrias 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
Threshold question.
Prima facie, Russia did not act consistently with art 2,
But justifications could exist
What justifications might Russia rely upon for the threat or use of force?
Use of force
REZ ON INTERNATIONAL LAW
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
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
members: Russia, China, France, 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.
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).
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 Iraqs 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.
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 decades Srebrenica?
taking office, the Obama Administration 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 Administration 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.
Domestic courts relationship with international law
REZ ON INTERNATIONAL LAW
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 Presidents approval for pre-
emptive 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 members of the military.
Obama has reportedly approved at least one cyber attack, a digital assault on networks used at Irans uranium
enrichment sites. The operation, code-named Olympic Games, was revealed in articles and a subsequent book by
New York Times reporter David Sanger.
Sangers book describes a joint program of Israel and the United States to insert malicious software into the
machinery of the Iranian military-industrial complex and so set back Irans ability to manufacture weapons-
grade 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
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.
Domestic courts relationship with international law
REZ ON INTERNATIONAL LAW
Lets 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
accounts 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 doesnt have force in NZ unless Parliament gives them that force but it often doesnt 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 Kelsens 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 dualism identified by John Jackson as described by Klabbers?
For these reasons Jackson advocated prudent dualism.
Pluralism
(Simultaneous application)
Crawford writes that neither of the two theories of dualism or monism offers an adequate account of the practice of
national and international courts.
He describes Fitzmaurices account 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 Rousseaus 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. Crawfords 8th edition
of Brownlie, 50
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 terms 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 terms of: A International Laws Approach to National Law & B National Laws
Approach to 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
(i) 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.
Its important to know, though, that most of the time we dont 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 France where the executive branch will provide the courts with
interpretations of treaties, through the Ministry of Foreign Affairs
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
lawbut 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 lawit 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.