Public International Law (Week 1-3) - 15.01.26

What is the meaning of subjects of international law?

• Entity that international legal personality, rights and/or obligations

• E.g. States bound by consent (Art. 1 Montevideo Convention), IGOs, NGOs, MNCs, Individuals

How does sovereignty play a role in statehood?

• Attributable as statehood

• Art. 2(1) UN Charter → Sovereign equality

• All states are equal; CIL says that states cannot be ordered by other states or international bodies because of consent

What are the criteria for statehood?

1. Permanent population

   1. No minimum requirement

   2. No concern as to show population has come to reside there

   3. No need for continuous residence, e.g. nomadic population

2. Defined territory

   1. No need to be precise; does not require full or defined boundaries

   2. Land, not sea

   3. Dependent on the fact that it can be recovered one day

3. Effective government

   1. = People must be sufficiently organized, socially and politically as an entity

   2. State in a position to uphold its international duties

   3. No specified form of government

   4. Statehood can continue even if governmental collapse

4. Capacity to enter into relations with other states

   1. Not only objective, but also important for the recognition of a state by other states

   2. Ability to exercise independence; Independence is not an absolute requirement

What is the declaratory theory in the recognition of states?

• Declaratory theory = Recognition amounts to a declaration that a state accepts another state and is willing to enter into relations with it; Acknowledgment of a state that already exists (declares a state)

• But non-recognition does not mean that a State is not considered a state

  • Contradicting because how can an aspiring state function if other states refuse to interact with it

What is the constitutive theory in the recognition of states?

• Constitutive theory = Recognition contributes to the emergence of the State, i.e. States only exist once it is recognized by other states (creates statehood)

  • Condition for statehood → Because membership is conditional on the acceptance by existing members of the political community

What are the 4 types of self-determination?

1. Art. 1(2) UN Charter

2. Art. 77 & 73 UN Charter

3. Referendum (because outside colonial contexts there has been no recognition of the right of groups of people to self-determination)

4. External self-determination if a definable group is denied access to government

What are the requirements for an IO?

1. Membership

   1. Must be of states, e.g. UN, WTO

2. International legal personality

   1. Requires set or organs which is distinct from its members

3. Governed under international law

What are the principles of speciality and attribution of powers?

• WHO Nuclear Weapons Opinion

  • The principle of speciality = IOs are limited to the function that are invested by the States which created them

  • The principle of attribution of powers =

    • Express powers — Powers conferred on IOs from an express statement in their constituent instruments (WHO)

    • Implied powers — Power is implied if necessary to perform IOs duties (Reparation opinion + WHO)

Which decisions of the UN are binding?

• Art. 25 UN Charter = All decisions from the security council are binding upon member states

• Chapter 6 is not binding, simply suggestions

• Chapter 7 can authorize use of force and is usually binding but not everything needs to be binding

• General assembly cannot adopt binding decisions but budgets internally are

• GA resolutions are not binding

What case law and treaties are necessary for the subject of int. law I?

• Charter of the United Nations, art. 2(1), 23, 27, 55-56, 73-91

  • Art. 2(1) → Principle of equal sovereignty

• Convention on the Rights and Duties of States (Montevideo Convention), art. 1, 2, 3, 6

  • Art. 1 → Statehood requirements

• International Covenant on Civil and Political Rights art. 1, 25

  • Art. 1 → Self-determination

  • Art. 25 → Right to take part in government

• International Covenant on Economic, Social and Cultural Rights, art. 1

  • Art. 1 → Self-determination

• Reparation for injuries suffered in the service of the United Nations, Advisory Opinion, ICJ Reports 1949

  • The UN has international legal personality and can bring international claims

  • Possesses implied powers necessary for the performance of its functions, even if not expressed in charter

• Blaskic case, ICTY, Appeals Chamber, para. 26

  • The International Tribunal only has jurisdiction over individuals, not states (must rely on cooperation of states to try persons living under the jurisdiction of sovereign states)

• Kosovo, Advisory Opinion, ICJ Reports 2010, paras. 1, 79-84,

  • According to state practice, a declaration of independence is not contrary to int. law

  • Int. law of self-determination developed to create a right to independence for the peoples of non-self-governing; however, the practice of states does not point to the emergence in int. law of a new rule prohibiting the making of such declarations in instances outside of colonialism

  • Declarations only illegal if connected with the use of force/violating integrity of other sovereign states; otherwise, no general prohibition of unilateral declarations of independence

• Western Sahara, Advisory Opinion, ICJ Reports 1975, paras. 54-59

  • ICJ confirmed that self-determination applies to all peoples

  • Binding principle of int. law and now CIL

• Reference re Secession of Quebec, Supreme Court of Canada, 1998,

  • International law does not grant a right to unilateral secession to a province or region within a democratic state

  • Secession may only occur with the consent of the parent state (through referendum, negotiation), except in extreme cases (e.g., colonization, foreign occupation, oppression of a people)

1. Self-determination

• International law recognizes a right of self-determination, but:

  • It is normally fulfilled internally (within an existing state).

  • External self-determination (secession) is exceptional.

2. When unilateral secession may be allowed

The Court identifies three narrow situations where international law may permit secession:

1. Colonial domination

2. Foreign occupation

3. Where a people is denied meaningful access to government to pursue political, economic, social, and cultural development

Quebec does not fall into any of these categories.

3. Territorial integrity

• International law strongly protects the territorial integrity of states.

• Self-determination cannot normally be used to dismantle a functioning democratic state.

What case law and treaties are necessary for the subject of int. law II?

• Vienna Convention on the Law of Treaties, Arts 26, 31-32, 54, 57, 59

  • Arts. 31-32 — Interpretation of treaties

• Legality of the Use by a State of Nuclear Weapons in Armed Conflict, Advisory Opinion (requested by the WHO), ICJ Reports 1996, paras. 25-26

  • International organizations are subjects of international law

  • Governed by the principle of speciality unlike states

  • Power conferred by an express statement in their constituent instruments → Implied powers

What are the sources of int. law?

• Art. 38 SICJ

  • (1) Primary means (1(a-c))

    • Treaties, customary law, resolutions, unilateral acts

  • Secondary means (1(d))

    • Judicial decisions

What is a treaty as a source of int. law?

• The Vienna Convention on the Law of Treaties (1969) (VCLT)

  • Art. 11-15 VCLT — Consent to be bound

  • Art. 24 VCLT — Entry into force; Bound by Art. 18 VCLT

What is customary int. law as a source of int. law?

• 1. General state practice (e.g. any document a state has produced; judicial decisions, voting patterns, resolutions)

  • Widespread, representative, constant/consistent and virtually uniform (North Sea Continental Shelf case)

• 2. Opinio juris (accepted as law)

• Time not a necessary condition for emergence

• Regional custom vs. general custom

  • If emergence came from a particular region then it only binds states which have led to the emergence of the rule

  • General CIL binds all states unless explicitly objected, persistent objection cannot apply against jus cogens

What are general principles as a source of int. law?

• Not in a hierarchical relationship with treaties and CIL

• CIL can prevail if more precise and new → Nicaragua case

What are the necessary steps to make a treaty?

Art. 2(1)(a) VCLT

1. International agreement

   1. Intention to create binding obligation

2. Between states

   1. IOs can sign treaties because they are governed by states, but not covered by VCLT

3. Written form

   1. Ihlen oral declaration (Norway v. Denmark) → Verbal agreement is binding but then the VCLT does not apply

   2. Intention of parties

4. Governed by international law

   1. Look at provisions; Does the treaty create binding obligations on international entities?

5. Single instrument or in two

   1. Does not matter, can be formed from three pieces

6. Whatever its particular designation

   1. Can call the treaty whatever

      1. Qatar v. Bahrain — Small notes can be qualified as a treaty

What is Art. 53 VCLT about?

• A treaty is void at the time of its conclusion if it conflicts with a peremptory norm of general international law

• Jus cogens = Norm accepted and recognized by the international community which no derogation is permitted

What are the provisions on domestic law and the consent to be bound in the VCLT?

• Art. 27 VCLT

  • A party may not invoke domestic law to debate from fulfilling obligations of international law

• Art. 46 VCLT

  • Unless that violation was manifest and concerned a rule of fundamental importance (only exception for use of domestic law)

    • Manifest = Obvious to everyone

What is the hierarchy within Art. 31 VCLT?

• Aguas del Tunari v. Bolivia

  • Sequence of Art. 31 VCLT should be followed

  • No hierarchy between elements that are relevant

• El Salvador v. Honduras

  • Arts. 31 and 32 (supplementary) are one process

What is the basis for evolutive interpretation?

1. Intention of parties

2. Object and purpose of treaty

3. Text/generic terms (e.g. fish, family)

What are the VCLT articles for the suspension/termination of treaties?

• Art. 64 VCLT

  • Emergence of new rule of jus cogens

• Art. 61 VCLT

  • Impossibility of performance

• Art. 60 VCLT

  • Material breach = Breach to fundamental objective of treaty

• Art. 62 VCLT

  • Fundamental change of circumstances

  • Strict interpretation

  • Conditions for application:

    • Circumstances →

      • (1) Existed at the time of the conclusion of the treaty

      • (2) Whose existence was an essential basis for the consent of the parties to be bound by the treaty

    • Change →

      • (1) Fundamental

      • (2) Unforeseen

      • (3) Of the effect to transform radically the extent of the obligations still to be performed under treaty

  • → Fisheries jurisdiction — Strict interpretation of fundamental change of circumstances in CIL (must be radical and unforeseen)

  • → Hungary/Slovakia — FCC cannot be used to escape obligations because performance has become more difficult

What is the VCLT article for impermissible reservations?

• Art. 19 VCLT

  • A state can make reservation unless

    • a) Reservation is prohibited by the treaty

    • b) Except for certain specified reservation for some provisions

    • c) The reservation is incompatible with the object and purpose of treaty

  • → One state can accept reservation for it to be accepted

    • Modified version applies between these states, but for everyone else the original provision applies

    • If one objects, then what is the same between the original and modified version applies and the differences does not because of consent

What are the articles from the VCLT about the objections to reservations?

• Art. 20(4)(b) VCLT

  • Objection of a reservation does not preclude entry into force of treaty, to do this, contrary intention must be established

• Art. 20(4)(c) VCLT

  • Only needs one other contracting state to accept reservation

• Art. 20(5) VCLT

  • Tacit acceptance within 12 months

• Art. 21 VCLT

  • (1)(a) Treaty provision modified or excluded is between State A and B

  • (1)(b) Reciprocal

  • (2) Does not modify provisions for other parties

  • (3) Treaty but not reservation does not apply when a state objects to another’s reservations

What case law and treaties are necessary for the sources of int. law I?

• Statute of the International Court of Justice, art. 38

  • Sources of int. law

• Charter of the United Nations, art. 103

  • Art. 103 → UN Charter prevails over any other international agreement

• Vienna Convention on the Law of Treaties, art. 53, 64, 66

  • Art. 53 → Treaty void if at time of conclusion it conflicts with jus cogens

  • Art. 64 → If new peremptory norm emerges then any existing treaty is void

• PCIJ, The case of the SS “Lotus”, paras. 2, 41, 44-46, 47

  • The rules of int. law come from states’ free will as expressed in conventions, so restrictions upon independence of States cannot therefore be presumed

  • Jurisdiction is certainly territorial but int. law does not prohibit a state from exercising jurisdiction within its own territory, includes criminal cases

  • The Lotus principle = International law does not prohibit a state from exercising jurisdiction unless there is a specific prohibition

  • SS Lotus Case = CIL exists independently

• North Sea Continental Shelf Cases, ICJ Reports 1969

  • Practice as CIL if:

    • (1) State practice

      • Widespread, representative, constant/consistent and virtually uniform (includes specially affected states)

    • (2) Opinio juris

      • Belief that this practice is obligatory by its existence

      • Nicaragua = Existence of the rule in opinio juris of states is confirmed by state practice

    • No time limit for the development of CIL

    • “Not-so-great-number”

• Nuclear Tests (Australia v. France), ICJ Reports 1974, paras. 43-46

  • Unilateral declarations may have the effect of creating legal obligations, but not all, it depends on the intention to be bound (which is interpreted of the act)

  • Oral or written statement does not matter

  • Principle of good faith

• Military and Paramilitary Activities in and against Nicaragua (Merits) (Nicaragua v. United States of America), ICJ Reports 1986, paras. 183-186, 188 and 207-208

  • CIL = Actual practice and opinio juris

  • Mere recognition of certain rules does not constitute general practice under Art. 38 SICJ

  • Existence of the rule in the opinio juris of States is confirmed by practice

  • Practice of states do not need to be consistent, then it is only a breach of that rule

  • Use of force in the Charter is found in CIL

  • Non-use as a principle of CIL

  • Must refrain from the use of force against states’ territorial integrity or political independence

  • CIL still persists even if there are persistent objections if the majority has state practice

• Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion (requested by the GA), ICJ Reports 1996, paras. 64-73

  • The use of nuclear weapons does not constitute opinio juris since states are quite conflicted on this topic

    • States belief in illegal use → Non-utilization of nuclear since 1945

    • States for the legality → Self-defense

  • GA resolutions are not binding but important for establishing the existence of a rule or the emergence of an opinio juris → Established that use of nuclear weapons is a direct violation of the UN Charter

  • No specific rule of CIL which prohibits the use of nuclear weapons

What case law and treaties are necessary for the sources of int. law II (treaties)?

• Maritime Delimitation and Territorial Questions between Qatar and Bahrain (Qatar v. Bahrain), ICJ Reports 1994, paras. 21-30

  • International agreements may take a number of forms + Art. 2(1)(a) VCLT establishing criteria for treaty

  • Intention does not matter

  • International agreements not registered before Secretariat of the UN (Art. 102 UN Charter) may not be invoked before any organ of the UN

  • Letters can constitute an international agreement creating rights and obligations for parties regardless of intention

• Belilos v. Switzerland, European Court of Human Rights, Series A (1988), No. 132, in particular paras. 47-49 and 60

  • ECHR must be interpreted in the light of present-day conditions

  • State obligations under international law are binding even if domestic law differs, particularly regarding human rights treaties

• GabčÍkovo-Nagymaros Project (Hungary/Slovakia), ICJ Reports 1997, paras. 46-110, in particular 46-48 and 89-110

  • Pacta sunt servanda = Treaties must be performed

  • VCLT is considered a codification of existing customary law (mention source during exams!)

  • VCLT can only apply to the states after ratification

  • State of necessity is not valid as a ground for the termination of a treaty, can only be terminated by mutual agreement

  • Environmental changes do not automatically justify non-performance and must be interpreted strictly under Art. 62 VCLT

How do you assess interpretation of treaties under the exam?

• When does the VCLT apply? → When the states ratified the VCLT

• During the exam, look at the formulation of the exam question → Treaty or customary international law?

• Is the preamble the object + purpose or context?

• Context in the meaning of Art. 31 VCLT means everything, other provisions within the treaty (context around the treaty, e.g. preamble used for object and purpose, title (perpetual peace and friendship does not indicate military aid))

• Art. 31(c) Can include other treaties if they are relevant, e.g. UN Charter allows for use of force in cases of self-defense

• Art. 32 VCLT is supplementary

What is UNCLOS (United Nations Conferences on the Law of the Sea)

• Maritime zones: Territorial sea (Art. 2 onwards), contiguous zone (Art. 33 onwards), exclusive economic zone (Art. 55 onwards), continental shelf (Art. 76 onwards), high seas (Art. 86 onwards)

• Not possible to make reservations because the treaty covers the totality of the law of the sea

• If not ratified but signed UNCLOS like the US, then CIL applies

  • Nicaragua v. Colombia → Provisions of UNCLOS were CIL

What areas count as territorial jurisdiction?

• Bodies of water

• Land mass 

• Airspace 

• Bays 

  • Dent of bays can be closed of, semi circle → All the water is internal water → Water outwards is territorial sea

  • More than 24 miles → Not allowed to draw → Find line less than 24 miles and draw a line

What are the UNCLOS articles on delimitation?

• Art. 15 UNCLOS

  • Delimitation of the territorial sea

• Art. 74 UNCLOS

  • Delimitation of the exclusive economic zone

• Art. 83 UNCLOS

  • Delimitation of the continental shelf

• → Romania v. Ukraine (2009)

  • ICJ tries to be equal and fair to states

  • Islands influence maritime zone

• Three stages for delimitation: 

  • (1) Draw a provisional equidistance line (middle line that splits in half) from the chosen base points

  • (2) Adjust this provisional line in light of the relevant circumstances, and 

  • (3) Ensure that this adjusted line is equitable and/or not disproportionate

What is Art. 121 UNCLOS?

• (1) An island is a naturally formed area of land, surrounded by water, which is above water at high tide

• (2) Except for (3), territorial sea, contiguous zone, exclusive economic zone and continental shelf of an island are determined applicable to other land territory 

• (3) Rocks which cannot sustain human habitation or economic life of their own shall have no exclusive economic zone or continental shelf

What are the features of the territorial sea?

• Main features

  • Arts. 2-4 UNCLOS

  • Belt of sea adjacent to the coast

  • Up to 12 nautical miles from the baseline

• Legal status

  • Part of sovereign territory of the coastal state (land territory)

  • Coastal state rights over water, seabed, subsoil and airspace

• Limitation

  • Right of innocent passage — Art. 17 UNCLOS

  • Arts. 17-26

What are the features of the contiguous zone?

• Main features

  • A zone beyond the territorial sea

  • Up to 24 nm miles from the baseline

• Legal status

  • Not sovereign territory

• Limitation

  • Limited enforcement powers to prevent infringement of its customs, fiscal, immigration

What are the features of the exclusive economic zone?

• Main features

  • A maritime zone extending up to 200 nm from the baseline

  • Special legal regime

  • Arts. 55-57

• Legal status

  • Only sovereign rights for exploring, exploiting, conserving and managing natural resources, e.g. living (fish), and non-living (oil, gas)

• Limitation

  • Transit passage— Art. 38 UNCLOS

  • Arts. 37-44 UNCLOS

What are the features of the continental shelf?

• Main features

  • Sea-bed and subsoil of the submarine areas extending from the coast

  • 200 nm

  • Arts. 76-83 UNCLOS

• Legal status

  • No need to declare (Art. 77(3) UNCLOS)

  • Sovereign rights to exploit/explore natural resources

What are the features of the high seas?

• Main features

  • All parts of the sea which is not included in territorial sea, EEZ, internal waters etc.

  • Arts. 86-87 UNCLOS

• Legal status

  • Belongs to no state

  • Right to navigate, overflight etc.

  • Flag state has jurisdiction over the ship that is on high seas — Art. 92 UNCLOS

  • Right of visit by foreign warships or governmental ships — Arts. 119, 99-109

  • Right of hot pursuit (seize foreign vessel which has violated a state’s laws within maritime jurisdiction); only continue outside of the territorial sea if the pursuit has not been uninterrupted

• Limitation

  • Transit passage— Art. 38 UNCLOS

  • Arts. 37-44 UNCLOS

What is the article of UNCLOS on piracy?

• Art. 101 UNCLOS

  • (a) Any illegal acts of violence or detention, committed for private ends, by crew or passengers of a private ship

  • (i) High seas, against another ship or aircraft, outside jurisdiction of any state

What case law and treaties are necessary for The International Law of the Sea?

• United Nations Convention on the Law of the Sea

• Maritime Delimitation in the Black Sea (Romania v. Ukraine), ICJ 2014, paras. 115-122

  • 3-stage delimitation method

    • 1) Draw provisional equidistance ine

    • 2) Consider relevant circumstances

    • 3) Adjust line if necessary to achieve equitable result

  • Giving full effect to such a small feature would produce an inequitable result → Delimitation needs to be equitable

What is the territorial principle?

• = Jurisdiction of the State over its territory (incl. internal waters, territorial sea and air space above territory)

• Objective

  • Where the action was completed, e.g. hit and died by bullets

• Subjective

  • Where the crime was initiated

• Effects doctrine

  • Where the crime takes effect, e.g. counterfeit money can be felt in other countries for a long time

What is the nationality principle?

• = Persons with the nationality of a state commits/victim crime abroad

• How is nationality determined?

  • Nottebohm case = Genuine link between individual and the state, e.g. long-term residence, family ties where you are active, work/live, family ties, network/friends

• Passive

  • Victim of crime

• Active

  • Person who committed the act

What is the flag principle?

• Ships and airplanes, aka. ship that was registered within a state is the flag state

• Art. 5(1)(a) CAT

What is the protective principle?

• = Person who has committed the crime has acted against the security of the state/vital interests, e.g. national security, economic security

• Even if the acts are committed by non-nationals and take place outside of territory

What is the universality principle?

• = Violation of gross criminal crimes, e.g. crimes against humanity etc.

What are the types of state immunity?

1. the State as a legal person

2. State officials

3. Diplomats/consular

What are the two types of State immunity?

1. Absolute immunity = Every act is covered by immunity

2. Restrictive immunity = To the extent the officials and state act within their abilities

   1. Acts Jure Imperii (governmental sovereign acts)

   2. Acts Jure Gestionis (commercial acts) — Test to determine commercial transaction:

      1. Art. 2(2) UN Convention

         1. Nature and purpose of the contract and transaction

Which articles of the UN Convention on Jurisdictional Immunities are on the waiver of immunity?

• Art. 7 UN Convention

  • State cannot invoke immunity if it has consented to the exercise of jurisdiction by the court

  • Agreement of law is not consent

• Art. 8 UN Convention

  • State can lose immunity if it actively participates in proceedings before foreign courts

  • State has not consented if they participate solely to invoke immunity, assert a property right

• Art. 19 UN Convention

  • A state cannot seize property to enforce judgment unless there has been express consent, international agreement, arbitration agreement

What are the exceptions for state immunity?

• Territorial tort exception

  • Art. 12 UN Convention

• No HR or jus cogens exceptions

  • Germany v. Italy — Serious violations of HR

  • Iran v. USA — Violation of rules of jus cogens

• Pending case before ICJ

  • Germany v. Italy no. 2 — Questions of Jurisdictional Immunities of the State and Measures of Constraint against State-Owned Property

What are the types of immunities of individuals?

• Serving head of state (Immunity ratione personae)

  • Enjoy immunity for everything for as long as they have that position

  • Enjoys immunity ratione materie ONLY for acts performed in official capacity after they leave office

  • Do not enjoy immunity for actions committed in private capacity after leaving office

• State officials acting as such (individual who represents the state; immunity ratione materiae)

  • Immunity ratione materiae = Immunity while acting within capacity 

    • No exception, even for serious crimes such as genocide etc.

    • Draft article 7, on the limitations and exceptions to immunity from foreign criminal jurisdiction, ILC

• Other high ranking officials (Heads of government, foreign ministers)

  • ICJ, Arrest Warrant (Congo v. Belgium)

    • Certain holders of high ranking officials in a state, head of state, heads of government and ministers of foreign affairs enjoy such immunities of ratione personae

  • While in office → Enjoy full immunities no matter in private or official visit, acts committed in official or private capacity + even for acts prior to the period of office

  • While cease to hold office → No immunity for acts committed prior to period of office or acts committed during office in private capacity

• Former heads of State and other government figures

  • Immunity ratione materiae

    • Immunity stops when you lose the position of being head of state

What are the sources of state immunity and individual immunities?

1. State immunity

   1. UN Convention Jurisdictional Immunities

   2. Germany v. Italy on Jurisdictional Immunities of the State

2. Individual immunities

   1. Vienna Convention on Diplomatic Relations + Optional Protocol 

What case law and treaties are necessary for the Jurisdiction of States & Immunities in International Law?

• Convention Against Torture and Other Cruel, Inhuman and Degrading Treatment or Punishment, Arts 1, 4-7, EIL 229 (248, 274, 226, 219)

  • Art. 5 CAT

    • (1)(a) Territorial and flag principle

    • (1)(b) Active nationality principle

    • (1)(c) Passive nationality principle

• The case of the SS “Lotus”, PCIJ, EIL 512 (531, 563, 486, 461)

  • Lotus case (collision of ships in high seas) = No exercise of jurisdiction on high seas except the flag state → Lotus principle: If it is not prohibited, it is permissible; Restrictions upon the independence of states cannot therefore be presumed (para. 44, paras. 41-42)

    •  The burden of proof lies on the person giving the claim 

    • But in this case, it was brought to by a special agreement (France and Turkey agree on the facts of the case and give the facts to an international tribunal, ECIJ)

• Vienna Convention on Diplomatic Relations, EIL 164 (183, 209, 165, 158)

  • Art. 31 — Diplomatic agent shall enjoy immunity from the criminal jurisdiction of the receiving state; enjoy immunity from its civil and administrative jurisdiction

• United Nations Convention on Jurisdictional Immunities of States and Their Property

  • Art. 2(2) UN Convention — Crteria for defining commercial transaction for acte jure gestionis

  • Art. 12 UN Convention — State cannot invoke state immunity for tort

• Diplomatic and Consular Staff in Tehran, ICJ Reports 1980, paras. 76-89

  • Submitting diplomats to any form of criminal trial constitute a grave breach a grave breach of Art. 31(1) Vienna Convention

  • Diplomats have a duty not to interfere in the internal affairs of the State

  • Persona non grata

  • Every receiving state has at its own discretion to break off diplomatic relations with a sending in breach of Art. 9(1) Vienna Convention

• Al-Adsani v. United Kingdom, European Court of Human Rights, 2001

  • State immunity is procedural an cannot be bypassed evem for claims of jus cogens such as the prohibition of torture

  • Immunity governs whether a domestic court may her a case against a foreign state, does not legitimize unlawful acts

• Arrest Warrant of 11 April 2000, ICJ Reports 2002, paras. 45-71

  • Immunity ratione personae = Minister of foreign affairs throughout duration of office, enjoys full immunity from criminal jurisdiction and inviolability

  • High-ranking officials = Head of state, head og government + Minister for foreign affairs

  • No distinction between acts performed in official or private capacity

  • No CIL for the exception of other high ranking officials losing immunity for crimes of humanity etc.

  • Jurisdictional immunity is procedural whilst criminal responsbility is a question of substantive law

  • Former minister for foreign affairs do not enjoy criminal immunity in own countries, ceases to enjoy immunity from foreign jurisdiction if state chooses to waive immunity and after ceasing to hold office, they no longer enjoy any immunities (but still for acts performed in official capacity)

• Jurisdictional Immunities of the State (Germany v. Italy: Greece intervening), Judgment, ICJ Reports 2012, paras. 52-108, 139

  • State immunity derives from CIL

  • State immunity derives from the principle of sovereign equality of states (Art. 2 UN Charter)

  • State immunity for acta jure imperii continues to extend torts and civil proceedings for acts occasioning death, personal injury or damage property committed by armed forces

  • No state practice supporting that states are not entitled to immunity in cases of serious violations of HR

  • State immunity does not have status of jus cogens

  • No conflict between rules of jus cogens and state immunity because jus cogens are substantive norms and state immunity are procedural norms

What is the ILC´s role?

• The International Law Commission (ILC) recognises “general principles of law” primarily as a source of international law under Article 38(1)(c) of the ICJ Statute

  • Are not treaties and not customary international law

  • Serve to fill gaps in international law

  • Are recognised by the international legal system as binding

  • Does not override treaties, acts as subsidiary

• 1st category

  • GP derived from national legal systems

• 2nd category

  • GP derived from int. law itself