Public International Law

(2018/2019)
VMO students: Lecture 3

Jolanda Andela, Course Coordinator

Today’s lecture

• UN SC: Actions not involving force

• Immunity
o Immunity of States (sovereign immunity)
o Immunity of high-ranking State officials
• International Human Rights Law
o Historical background
o Categorization of human rights
o Systems of human rights protection:
 Universal
 Charter-based
 Treaty-based
 Regional
o Application of human rights
o Debates in international human rights law
• Review & exam practice
UN collective security system

• Responsibility of the UN Security Council: Maintaining internationalExamples?

peace
and security (art. 24(1) UN Charter)
• Art. 39 ‘activates’ this system: SC determines existence of threat to peace,
breach of the peace, act of aggression  make recommendations OR decide
what must be done about it.
o Note: SC decisions (Chapter VII) are legally binding [unlike GA].
 This is why often
UN collective security system things do not
happen!

• How does the SC make decisions again? Art. 27 UN Charter

a) Each member has one vote;
b) 5 permanent members possess the right of veto;
c) Decision adopted with affirmative vote of 9 members and no permanent members votes
against the decision.
Namibia Advisory Opinion,
para. 22

UNC Art. 40, 41, 42 = ‘steps that can be taken’

Provisional measures Measures NOT Measures
(not often used; usually involving use of involving use of
covered in terms of art. force  will force  not
41 & 42). discuss next discussed today
Measures not involving the use of force

Mentioned explicitly in art. 41 UN Charter:

• Sanctions  e.g. economic sanctions, arms embargoes, financial penalties
and restrictions, and travel bans;
• Severance of diplomatic relations  international isolation;

Other measures not involving use of force

• Creation of ad hoc international criminal tribunals;
• Peacekeeping operations  currently 14.
Sanctions: Version 2.0 - ‘smart sanctions’

• Main addressees of smart sanctions: remain UN member states, but;

o Individuals concerned are named [‘blacklisted’] in order for states to implement the
measures correctly;
o Involve e.g.: travel restrictions, freezing of financial assets.

BUT, what if an individual wants to contest such actions?

o National court?  UN Security Council immunity;
 Also: UNC art. 25: UN member states “agree to accept and carry out the decisions of the
Security Council in accordance with the present Charter.
 Thus, international law supersedes national law.

o International Courts? Ombudsperson?

Kadi case (before CJEU)

Sanctions: Security Council Sanctions Committee
(Ombudsperson) Link to Kadi case
• Some reform, in response to criticism:
o Office of the UNSC Ombudsperson created by SC res. 1904;
o Adoption 17 December 2009.

The Office of the Ombudsperson to the ISIL (Da'esh) and Al-Qaida Sanctions
Committee:
“An independent and impartial Ombudsperson, who reviews requests from
individuals, groups, undertakings or entities seeking to be removed from the
ISIL (Da'esh) and Al-Qaida Sanctions List of the Security Council's ISIL
(Da'esh) and Al-Qaida Sanctions Committee.”
Source: https://www.un.org/sc/suborg/en/ombudsperson.
Severance of diplomatic relations

• Political break-up: International isolation?

• Example: situation in Southern Rhodesia (1965-1970)
o Security Council Resolution 217 (1965): “Calls upon all States not to recognize this illegal
authority and not to entertain any diplomatic or other relations with it.”; “Refrain from any
action which would assist and encourage the illegal regime […], and do their utmost in
order to break all economic relations with southern Rhodesia […].”
o Security Council Resolution 277 (1970): “Decides […] that Members States shall
immediately sever all diplomatic, consular, trade, military and other relations that they may
have with the illegal regime in Southern Rhodesia, and terminate any representation that
they may maintain in the Territory”; “Calls upon Member States to take appropriate action
to suspend any membership or associate membership that the illegal regime of Southern
Rhodesia has in its specialized agencies of the United Nations.”
Creation of ad hoc international criminal tribunals

• International Criminal Tribunal for the former Yugoslavia (ICTY)

 Challenged in Tadic case [Decision on the Defence Motion for Interlocutory Appeal
on Jurisdiction];
 Not listed in art. 41  UN SC making ultra vires decisions?;
 Art. 41 merely lists illustrative examples; as long as they don’t involve use of force
o Violations of humanitarian law committed in the former Yugoslavia
o Security Council resolution 827 (1993), The Hague, The Netherlands

• International Criminal Tribunal for Rwanda (ICTR)

o Violations of international humanitarian law committed in Rwanda
o Security Council resolution 955 (1994), Arusha, United Republic of Tanzania

Hang on! How about

the ICC?
Peacekeeping operations

• Currently 14 UN peacekeeping operations (four continents)

o E.g. Haiti, Western Sahara, CAR, Mali, DRC, Darfur

• Video

• Guided by three basic principles:

o Consent of the parties;
o Impartiality;
o Non-use of force except in self-defense and defense of the mandate.
Peacekeeping operations

Basic principles:
1. Consent of the parties
 Requires a commitment to a political process
 Without consent, peacekeeping operation risks becoming a party to the conflict
2. Impartiality
 Crucial for maintaining consent and coopartion of the parties
 A peacekeeping operation must scrupulously avoid activities that might compromise its image
of impartiality

3. Non-use of force except in self-defense and defense of the mandate.

 UN peacekeeping operations are not an enforcement tool
 However, what about volatile situations?  use force as a measure of last resort
 Peacekeeping operations = Peace enforcement
Peacekeeping operations

• Role of the Security Council

o Establishment of a new Peacekeeping operation by resolution
o Monitoring of the Peacekeeping operation’s work
 Through periodic reports by SG
 By holding Security Council sessions to discuss the work of specific operations
o Vote to extend, amend or end mission mandates
https://peacekeeping.un.org/en

Security Council resolution 2350 (2017):

“1. Decides to extend MINUSTAH’s mandate, as
contained in its resolutions […], for a final period of
six months, and that the Mission shall close by 15
October 2017;”
Today’s lecture

• UN SC: Actions not involving force

• Immunity
o Immunity of States (sovereign immunity)
o Immunity of high-ranking State officials
• International Human Rights Law
o Historical background
o Categorization of human rights
o Systems of human rights protection:
 Universal
 Charter-based
 Treaty-based
 Regional
o Application of human rights
o Debates in international human rights law
• Review & exam practice
Immunity: issues in public international law

Four types of immunities to be distinguished:

• Immunity of Diplomats (and diplomatic property)
See e.g. Vienna Convention on Diplomatic Relations Julian Assange

• Immunity of International Organisations

See e.g., Convention on the Privileges and Immunities of the United Nations;
Convention on the Privileges and Immunities of the Specialized Agencies; Headquarters
Jamal Khashoggi
agreements between IOs and Host States.

Focus of our discussion

• Immunity of States [sovereign immunity]

• Immunity of high-ranking State officials
Srebrenica
Today’s lecture

• UN SC: Actions not involving force

• Immunity
o Immunity of States (sovereign immunity)
o Immunity of high-ranking State officials
• International Human Rights Law
o Historical background
o Categorization of human rights
o Systems of human rights protection:
 Universal
 Charter-based
 Treaty-based
 Regional
o Application of human rights
o Debates in international human rights law
• Review & exam practice
Immunity of States [sovereign immunity]

• Basis: sovereign equality of States (art. 2(1) UN Charter): “The Organization

is based on the principle of the sovereign equality of all its Members”
[An equal has no authority over an equal]

• Immunity: of itself (territory & events) & its property (broadly defined),
from the jurisdiction of another state’s (domestic) court: jurisdictional &
enforcement immunity

Hang on! What about state

responsibility?
State Immunity: Sources

• Treaties?
o European Convention on State Immunity (1972) (in force for 8 member states,
CoE).
o UN Convention on Jurisdictional Immunities of States and Their Property (2004)
(not yet in force).
• Customary international law (UN Convention mostly accepted as codifying
customary IL).

• Permissive system (allowed, unless prohibited): national instruments allowed

(but these are mostly incorporating IL into national legal system).

Some national laws on Sovereign Immunity –

absolute immunity; others restricted immunity
State Immunity: The scope of an immunity plea

Who can file an immunity plea and where can it be filed?

Article 2(1) UNCJIS: For the purposes of the present Convention:
(a) “Court” means any organ of a State, however named, entitled to exercise judicial functions;
(b) "State” means:
(i) the State and its various organs of government;
(ii) constituent units of a federal State or political subdivisions of the State, which are entitled to
perform acts in the exercise of sovereign authority, and are acting in that capacity;
(iii) agencies or instrumentalities of the State or other entities, to the extent that they are entitled to
perform and are actually performing acts in the exercise of sovereign authority of the State;
(iv) representatives of the State acting in that capacity;

Immunity from exercise of jurisdiction

AND / OR
(art. 5 UNCJIS)
Immunity from enforcement measures (art. 18, 19
UNCJIS)
State Immunity: Exercise of jurisdiction

• Exceptions to immunity:
o Waiver (Art 7, 8, 20 UNCJIS);
o Restrictive approach (Commercial transactions excluded);

Acts of State (Acta Commercial Acts

jure imperii) (Acta jure gestiones)
Art. 10(1) UNCJIS

• Such a distinction can be tricky to make in practice

Object/purpose Nature
c
ra phi n
Art. 2(2) UNCJIS: MIXED approach - nature (first) and purpose (second) g o
Geo entati
m
Keep in mind: national laws regulating frag
state immunity can specify absolute OR
restricted approach
State Immunity: Exercise of enforcement

• Absolute approach only  not exception for commercial acts

(Art. 18 – 20 UNCJIS)

• Exception
o Waiver (but note: waiver of jurisdiction does not imply waiver of enforcement
measures; must be invoked SEPARATELY).
WAIVER OF ENFORCEMENT
 State Immunity & Jus Cogens violations

• Jus cogens norms (peremptory norms) e.g., torture, slavery.

• Jurisdictional Immunities of the State case (Ferrini) (ICJ, 2012).

o Germany v. Italy: arose out of occurrences WW II.
o What happened before the ICJ case:
 Italian civil court: (Ferrini case): ruled case is admissible because concerns jus cogens 
Germany pleads sovereign immunity. Italian court rejects it: violation of Germany’s sovereign
immunity before Italian courts?
o The Case before ICJ: Italy invokes several justifications for not granting immunity 
including jus cogens (Para. 80).

Can acts violating jus

cogens norms ever be
considered as ‘official acts
of state’?
State Immunity & Jus Cogens violations

• Italy’s argument: conflict between jus cogens norms & immunity claim.
• Para. 93: “In the opinion of the Court, however, no such conflict exists.” “(…)
recognizing the immunity of a foreign State in accordance with customary
international law does not amount to recognizing as lawful a situation created by the
breach of a jus cogens rule (…).”

What do you think?

Today’s lecture

• UN SC: Actions not involving force

• Immunity:
o Immunity of States (sovereign immunity)
o Immunity of high-ranking State officials
• International Human Rights Law
o Historical background
o Categorization of human rights
o Systems of human rights protection:
 Universal
 Charter-based
 Treaty-based
 Regional
o Application of human rights
o Debates in international human rights law
• Review & exam practice
Immunity of high-ranking State officials

• Immunity of HRSO derived from State immunity, but also distinct!

• Customary international law.
In other state’s courts

• Two types of immunity:

o Immunity rationae personae [personal immunity]: an immunity that attaches to the
person during the time that he/she is in office whether of a private or functional
nature
o Immunity rationae materiae [functional immunity]: an immunity that attaches not
to the person, but to certain types of acts, i.e. official acts. Relevant officials, even
when they have left office, enjoy immunity for official acts.

Incumbent or former HRSO?

Immunity of high-ranking State officials

Mark Rutte (incumbent) Jan Peter Balkenende (former)

 Personal immunity  Functional immunity
 Private and official acts  Official acts
Arrest Warrant [DRC v Belgium] (ICJ)

• Case between the DRC & Belgium (note: colonial history between these
states).
• Belgium issued an arrest warrant against the
incumbent Minister for Foreign Affairs
• Belgium’s basis of case against Ndombasi:
o Violation of Belgian law (about international obligations erga omnes).
o Exercising universal jurisdiction based on grave breaches of inter alia
international humanitarian law and crimes against humanity.
• Counter claim DRC: absolute immunity from exercise of criminal
jurisdiction for Minister for Foreign Affairs.

But what about violations of just cogens?

Wait a second…where have we heard that
before?
Arrest Warrant [DRC v Belgium] (ICJ)

• Para. 53: Rationale immunity HRSO = “to ensure the effective performance of their
functions on behalf of their respective States.”
• Para. 54 & 55: Court made NO distinction private capacity and official capacity –
while in office: absolute/full immunity.
• Para. 56 and onwards: Exceptions for grave violations of international law?
o Para. 58: “It has been unable to deduce from this practice that there exists under customary
international law any form of exception to the rule according immunity from criminal
jurisdiction and inviolability to incumbent Ministers for Foreign Affairs, […]”.

Pay attention: immunity does not mean impunity (per se)

4 scenarios for prosecution, despite immunity (paras. 60-61):
1. Prosecution in own state,
2. Waiver of immunity by own state,
3. After a person ceases to hold office, restricted immunity claim,
4. Criminal proceedings international criminal court/tribunal
Arrest Warrant [DRC v Belgium] (ICJ) – What was not
addressed?
• Does it matter whether the acts in question were done in private or official
capacity (ratione personae versus ratione materiae)? YES
• Does it matter whether the individual is an incumbent (currently in office),
or has left office (former HRSO)?
Incumbent HRSO Former HRSO
Personal immunity (for acts in performed in No personal immunity (for acts in performed
personal capacity) in personal capacity)
Functional immunity (for acts performed in Continued functional immunity (for acts
official capacity) performed in official capacity)

…but what counts as an ‘official act’?

✔
Negotiating, signing treaties Participating in conferences ✔ ?
Committing torture
Today’s lecture

• UN SC: Actions not involving force

• Immunity:
o Immunity of States (sovereign immunity)
o Immunity of high-ranking State officials
• International Human Rights Law
o Historical background
o Categorization of human rights
o Systems of human rights protection:
 Universal
 Charter-based
 Treaty-based
 Regional
o Application of human rights
o Debates in international human rights law
• Review & exam practice
Historical background
Western
imperialism?
• Starting point?
o Magna Carta (1215)
o English Bill of Rights (1689)
o United States Bill of Rights (Amendments to the Constitution, 1791)
o French Declaration des droits de l’Homme et du citoyen (1789)

• Internationalization HRL UN Charter article 1(3): “(…)promoting and

encouraging respect for human rights and for fundamental freedoms for all without
distinction as to race, sex, language, or religion.”
• ‘Individual as victim’  protection from State;
• State & individual:
o State = duty bearer;
o Individual = rights holder.
 But developments: third generation rights?
Today’s lecture

• UN SC: Actions not involving force

• Immunity:
o Immunity of States (sovereign immunity)
o Immunity of high-ranking State officials
• International Human Rights Law
o Historical background
o Categorization of human rights
o Systems of human rights protection:
 Universal
 Charter-based
 Treaty-based
 Regional
o Application of human rights
o Debates in international human rights law
• Review & exam practice
Categorisation of human rights

A. Generations of human rights:

• First generation (negative?)
• Second generation (positive?)
• Third generation (solidarity?)

Difference:
Article 3 ECHR: ‘No one shall be subjected to torture or to inhuman or degrading treatment or
punishment.’ [First generation]
Article 17(1) Revised European Social Charter: With a view to ensuring the effective exercise of
the right of children and young persons to grow up in an environment which encourages the full
development of their personality and of their physical and mental capacities, the Parties
undertake, either directly or in co-operation with public and private organisations, to take all
appropriate and necessary measures designed’. [Second generation]

Distinction is not
black-and-white
Categorisation of human rights

B. Beneficiary of human rights: Group rights & individual rights

o By the collective, e.g. right to self-determination: Kosovo Advisory Opinion;
o By people in association, e.g. right to freedom of religion.

C. State obligations of human rights: Duty to respect, protect and fulfil

o Negative obligations (to respect);
o Positive obligations (to protect, to fulfil), e.g. ECtHR Opuz v. Turkey.
Today’s lecture

• UN SC: Actions not involving force

• Immunity:
o Immunity of States (sovereign immunity)
o Immunity of high-ranking State officials
• International Human Rights Law
o Historical background
o Categorization of human rights
o Systems of human rights protection:
 Universal
 Charter-based
 Treaty-based
 Regional
o Application of human rights
o Debates in international human rights law
• Review & exam practice
Systems of human rights protection

• Universal instruments:
o UN Charter (e.g. art 1(3), 55, 56 UN Charter));
o International Bill of Rights;
 Universal Declaration of Human Rights (1948);
 International Covenant on Civil and Political Rights (ICCPR) (1966);
 International Covenant on Economic, Social and Cultural Rights (ICESCR) (1966);
o UN specialised treaties.

• Regional instruments:
o European Convention for the Protection of Human Rights and Fundamental Freedoms 
European Court on Human Rights.
o American Convention of Human Rights;
o African Charter of Human and Peoples’ Rights.
Framework of the UN human rights protection

Charter-based mechanisms Treaty-based mechanisms

UN Human rights protection – Charter-based

UN Charter:
Preamble: “reaffirm faith in fundamental human rights, in the dignity and worth of the
human person (…).”
Article 1: “The purposes of the United Nations are: (…) (3) To achieve international co-
operation in solving international problems of an economic, social, cultural, or
humanitarian character, and in promoting and encouraging respect for human rights
and for fundamental freedoms for all without distinction as to race, sex, language, or
religion (…).”;
Article 13(1)(b): Role UNGA, recommendations, studies;
Article 55, 56: Promote universal respect for human rights and take action;
Article 62(2): ECOSOC can make recommendations;
Article 68: ECOSOC shall set up commissions.
Commission on Human Rights
Human Rights? Council?
 UN Human rights protection – Charter-based Human
Rights Council
• Main UN intergovernmental body responsible for human rights
• Composed of 47 UN Member States
• Established by the General Assembly resolution 60/251 (2006) as a
subsidiary organ of the General Assembly
• Most responsibilities and functions similar to its predecessor (Commission
on Human Rights)
•
• International forum for dialogue Universal Periodic Review

• Special procedures

• Complaint procedure
Main task: to monitor whether states comply with their human
rights obligations, to make recommendations to states in case of
serious concerns and possible improvement of the HR situation;
make recommendations to the General Assembly for further
development of human rights law.
Universal Periodic Review

Extract UPR Netherlands, HRC 21st session, 9 July 2012.

• “25. Greece noted with satisfaction the Dutch efforts to promote women’s
rights but expressed concern that women still earned less than men and
requested information on measures to combat that issue. Greece also
requested information on the functioning of detention centres vis-à-vis the
treatment of migrants in line with the Convention against Torture and Other
Cruel, Inhuman or Degrading Treatment or Punishment (CAT). Greece made
recommendations.”

Criticism: ‘Mutual praise

society’
UN Human rights protection – Treaty-based

Most important treaty-monitoring bodies:

1. Human Rights Committee (CCPR)
• Concluding observations
2. Committee on Economic, Social and Cultural Rights (CESCR)
• Individual complaints
Specialised treaty-monitoring bodies:
• Inquiry procedure
3. Committee on the Elimination of Racial Discrimination (CERD)
4. Committee on the Elimination of Discrimination against Women • General comments
(CEDAW)
5. Committee against Torture (CAT)
6. Committee on the Rights of the Child (CRC) UN High
Commissioner for
7. Committee on Migrant Workers (CMW)
Human Rights?
8. Committee on the Rights of Persons with Disabilities (CRPD)
9. Committee on Enforced Disappearances (CED)
Regional Human rights protection - ECHR

• Council of Europe;
• Adoption 1950; Entry into force 1953;
• Regional application;
• Various Protocols (‘living instrument’);
• Enforcement:
o European Court of Human Rights (“ECtHR”);
o Differences with ICCPR / ICESCR enforcement mechanisms:
 Final judgments are binding (article 46);

• Absolute rights?
o Non-derogable rights: (e.g. prohibition of torture: jus cogens);
o Derogable rights: (1) provided by law; Pressing social need
(2) legitimate aim; Proportionality
(3) necessary in a democratic society
European Court of Human Rights

• Jurisdiction:
o Article 33: Inter-state cases;
o Article 34: Individual applications.

• Admissibility criteria in article 35 ECHR;

Article 35(1) ECHR: “The Court may only deal with the matter after all domestic remedies have been
exhausted […].”
BUT(!) ECtHR in Salah Sheekh v. The Netherlands case: ‘Excessive formalism’.

Article 35(3) ECHR: “The Court shall declare inadmissible any individual application […] if it
considers that: (a) the application is incompatible […], manifestly ill-founded, or an abuse of the right
of individual application;”
ECtHR in Karpenko v. Russia - (‘FOURTH INSTANCE CASES’).

• Differences with ICCPR / ICESCR enforcement mechanisms:

o Final judgments are binding (article 46);
o Binding judgments integral part of the system.
Regional Human rights protection – African Union

• African Charter on Human and Peoples’ Rights (African Union)

o Adopted 1981, entered into force 1986;
o Enforcement African Commission of Human and Peoples’ Rights;
 State reports;
 Individual/ state complaints  Recommendations;
 Interpreting the treaty.
o Enforcement: African Court of Justice and Human Rights;
 Merger ACHPR and CJAU, two chambers, Protocol 2008;
 Declaration made only by 7 of 30 states.
o Inclusion peoples’ rights and duties of individuals;
 Art. 20 Charter: “All peoples shall have the right to existence.”;
 Art. 29(1) Charter: “To preserve the harmonious development of the family and to work
for the cohesion and respect of the family; to respect his parents at all times, to maintain
them in case of need.”
Regional Human rights protection - Organisation of
American States
• American Convention of Human Rights
o Adopted 1969, entered into force 1978;
o Enforcement: Inter-American Commission of Human Rights;
 Dual role: Charter body and treaty body;
 Petitions from individuals/groups/NGO’s automatic for state parties to Convention, but
also petitions from individuals that have NOT ratified the ACHR  ADHR;
 ‘Conclusions and ‘recommendations’;
 Refer cases/request advisory opinions IACHR;
 Monitoring general HR situation + publishing reports;
o Enforcement: Inter-American Court of Human Rights
 Petitions only from states and the Commission when accepted competence;
 Individual complaints via Commission.
Today’s lecture

• UN SC: Actions not involving force

• Immunity:
o Immunity of States (sovereign immunity)
o Immunity of high-ranking State officials
• International Human Rights Law
o Historical background
o Categorization of human rights
o Systems of human rights protection:
 Universal
 Charter-based
 Treaty-based
 Regional
o Application of human rights
o Debates in international human rights law
• Review & exam practice
Application of human rights

Right to life - Article 2 ECHR;

“Everyone’s right to life shall be protected by law. No one
shall be deprived of his life intentionally save in the
execution of a sentence of a court following his conviction of
a crime for which this penalty is provided by law.”
What does it mean to have the right to life?

Proceduralisation: Opuz v. Turkey case (ECtHR)

To conceptualise the right as a

bundle of procedural rights
Right to life – ECtHR Opuz v. Turkey

Failure to protect
‘128. The Court reiterates that the first sentence of Article 2 § 1 enjoins the
State not only to refrain from the intentional and unlawful taking of life, but
also to take appropriate steps to safeguard the lives of those within its
jurisdiction (…).’

136. Having regard to the foregoing, the Court finds that the local authorities
could have foreseen a lethal attack by H.O. While the Court cannot conclude
with certainty that matters would have turned out differently and that the killing
would not have occurred if the authorities had acted otherwise, it reiterates that
a failure to take reasonable measures which could have had a real prospect of
altering the outcome or mitigating the harm is sufficient to engage the
responsibility of the State (…).’
Right to life – ECtHR Opuz v. Turkey

Failure to investigate
‘150. The Court reiterates that the positive obligations laid down in the first
sentence of Article 2 of the Convention also require by implication that an
efficient and independent judicial system should be set in place by which the
cause of a murder can be established and the guilty parties punished (…). A
requirement of promptness and reasonable expedition is implicit in the context
of an effective investigation within the meaning of Article 2 of the Convention
(…). (…).’
Today’s lecture

• UN SC: Actions not involving force

• Immunity:
o Immunity of States (sovereign immunity)
o Immunity of high-ranking State officials
• International Human Rights Law
o Historical background
o Categorization of human rights
o Systems of human rights protection:
 Universal
 Charter-based
 Treaty-based
 Regional
o Application of human rights
o Debates in international human rights law
• Review & exam practice
Universalism vs. cultural relativism

Universal…ism?
(good/bad)
Respect for common minimum standards Arrogance

Relativism?
(good/bad)
Respect for difference Indifference
Universalism vs. cultural relativism
Clash of human rights?

Right to freedom of expression

o Article 19 ICCPR;
o Article 10 ECHR.

Right to freedom of religion

o Article 18 ICCPR;
o Article 9 ECHR.
Today’s lecture

• UN SC: Actions not involving force

• Immunity:
o Immunity of States (sovereign immunity)
o Immunity of high-ranking State officials
• International Human Rights Law
o Historical background
o Categorization of human rights
o Systems of human rights protection:
 Universal
 Charter-based
 Treaty-based
 Regional
o Application of human rights
o Debates in international human rights law
• Review & exam practice
Exam practice – UN Framework: not involving force

MC question + motivation
Which statement provides an incorrect assessment about the establishment of ad hoc criminal tribunal by
the UN Security Council under article 41 UN Charter:
a) The creation of an ad hoc tribunal is an example of measures that can be taken by the UNSC not involving force
(art. 41 UN Charter)
b) The creation of an ad hoc tribunal is not listed in art. 41 UN Charter
c) The UNSC would make an ultra vires decision by establishing an ad hoc tribunal under art. 41 UN Charter
d) Art. 41 UN Charter merely lists illustrative examples of measures not involving the use of force

Answer: In the Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction, they challenged that article 41
UN Charter is supposed to include the creation of ad hoc tribunals. They argued that the creation of tribunals is not
listed in article 41 UN Charter and therefore the SC was making an ultra vires decision. It exceeded its mandate. The
ICTY decided on this matter and stated that when the SC established the ICTY, it did not act outside its mandate. Article
41 merely lists illustrative examples. It is not an exhaustive list. So, we can say that indeed the UNSC can establish
international criminal tribunals. It would not constitute an ultra vires decision.
Exam practice – Immunity of States (Essay)

Essay question
Discuss the relationship between jus cogens norms and rules on state
(sovereign) immunity. In your answer, be sure to refer to relevant case law. [6-
10 points]
ISSUE? What comes first? Hierarchy? Clash? Also Case law

RULES? CIL; Germany v Italy [Ferrini]

APPLICATION? Discuss case; including court ruling [relevant aspects thereof]
CONCLUSION? Answer question noted as ISSUE. No tension – distinct systems of
rules. Secondary rules (on sovereign immunity) comes first.
Exam practice – Immunity of high-ranking State officials

Mr Fast has just retired as the President of country X. Back when he was president, he
went on an annual holiday in country Y and loved to drive in his Ferrari. Over a period
of 6 years, Mr Fast managed to get over $3000 in traffic fine for speeding, which, of
course he didn’t have to pay. Now that Mr Fast has retired, can country Y finally get
their money for the speeding tickets out of him? Which statement is correct? (4 points)
a) No, the doctrine of sovereign immunity grants Mr Fast absolute immunity.
b) Yes, the doctrine of sovereign immunity grants Mr Fast absolute immunity.
c) Yes, the rules on the immunity of HRSO set limitations for former HRSO.
d) No, the rules on the immunity of HRSO set no limitations for former HRSO. ✔

Rules on immunity of HRSO is applicable (CIL). ✔

Rules differentiate between acts in official / personal capacity – and incumbent or former HRSO.
For official acts – current & former/ For personal acts – only current Speeding Tickets –
personal capacity, former: thus, YES. ✔
✔
Exam practice – International human rights law

Essay question
Following reports from the Council of Europe and the United Nations, recent
news headlines reported that “The Netherlands must more actively combat
racism and racist stereotypes.” Imagine that The Netherlands’ response to this
allegation is: “The Government of the Netherlands does not itself commit racist
acts and, therefore, international human rights standards are not violated”. Assess
this response in terms of international human rights law.
ISSUE? Is statement in conformity with international human rights law?
RULES? Doctrine, categorisations of human rights
APPLICATION? Discuss case; Respect, protect, fulfil…
CONCLUSION? Answer question noted as ISSUE.