[FINAL] Public International Law Exam Notes

Note:

(c)= case/art

(d) = definition/principle

List of subjects of International law

1. States

2. International Organisations

3. Individuals

4. People's

Principle of sovereign equality (C) (d)

1. Definition: all states are legally equal, regardless of size, power, or wealth, meaning they have equal rights and duties, and no state can intervene in another's internal affairs.

2. Art. 2(1) UN Charter

How do International courts, IO's, or other states issue binding orders to states? (C)

1. Blaskic ICTY Case, paras 26-27:

- Article 29 of the ICTY Statute allows the Tribunal to issue binding orders to States (e.g., to produce documents, arrest suspects, cooperate with investigations).

2. UN Charter/ UNSC Resolutions

- Art. 25 UN Charter

Requirements of statehood (c)

1. Art. 1 Montevideo Convention:

-permanent population

-defined territory

-(effective) goverement

- capacity to enter into diplomatic relations

Permanent Population

-Permanence is crucial;

-Western Sahara Advisory Opinion ICJ: Nomadic people still qualify as a permanent population

-The size of the population is irrelevant

-The population must be nationals

Defined Territory

-Land, not sea

-Border disputes/conflicts does not exclude this requirment (must be generally defined)

-ICJ Advisory Opinion re. Climate Change: loss of land shouldn't affect the existence of a State

-Size does not matter

-Population (above requirement) must be in the territory in question

(Effective) government

-Exercise of governmental authority over said territory/population

-Relatively stable and effective control (civil conflicts/war do not automatically render a state as no longer existent)

-Form and nature of government is irrelevant

-Not dependent on foreign troops or support

Capacity to enter into diplomatic relations

-This does not mean recognition - see. Art. 3 Montevideo Convention

-Legal criterion, not simply a factual one: the fact of having relations does not necessarily fulfil this criterion, E.g. diplomatic ties/agreements (treaties) / economic, trade, culture

-Can conduct foreign policy and affairs on their own, in other words: Independence e.g. excludes protectorates, dominions, colonies, territorial sub-units in federations or confederations

Theories of recognition of states on statehood (d)

1. Constitutive

2. Declaratory

Constitutive theory (d) and arguments for and against

Definition: Recognition is constitutive for statehood; An entity becomes a State only if it is recognised by other States.

Arguments against:

-Can lead to incoherent results: If recognition is constitutive, this produces a logical contradiction: the same entity would be a State for recognising States and not a State for non-recognising States

-Legal personality should not change depending on who is looking at it.

-Statehood cannot be relative in that sense.

Arguments for:

-UN membership is the clearest practical hallmark of statehood.

-Admission to the UN requires:

a Security Council recommendation, and

a General Assembly vote.

-Both steps require acceptance or recognition by existing UN member States.

Declaratory theory (d) and arguments for and against

Definition: The act of recognition only confirms the pre-existing legal capacity of the State, but a State is already a State once it fulfils the objective statehood criteria per Art. 1 MC

Arguments for:

-Declaratory theory is the approach enshrined in international law under the Montevideo Convention

-Unlike constitutive theory, declaratory theory avoids the problem of: State for some, not a State for others, in other words: Statehood is erga omnes, not relative.

-Prevents abuse of recognition of statehood (i.e. for political reasons or self-interest)

Arguments against:

-Recognition is crucial for a state to essentially function as a state (no treaties,no diplomatic relations, no international organisations, no recongised rights under intenraiotnl law essentially deprives of a state of all its functionality)

-Objective criteria under the Montevideo Convention are vague

-UN Membership is largely considered the most important hallmark of statehood, which inherently ties into a constitutive approach (requireing approval of UNSC, UNGA)

International Organisations (d)

- Organisations established by intergovernmental agreements/treaties

-Wide international responsibilities (functional and geographical)

-Function within economic, social, cultural, educational, health, and related fields

UN IO's System

1. Primary Organs

-UNGA

-UNSC

-ECOSOC

-ICJ

-Trusteeship Council

2. Secondary Organs

-ILC

-UN Specalised agencies

Competences & prerogatives of IO's (c)

1. Principle of Speciality: (WHO Nuclear Weapons Advisory Opinion, para 25)

- International organisations are subjects of international law, which do not, unlike states, possess a general competence, only in the fields and for purposes which are accorded powers

2. Principle of Attribution (CIL)

-Definition: International organization or a state can only exercise powers that have been granted to them, either explicitly or implicitly.

-Explicit attribution:

-WHO Nuclear Weapons, para 25:

Powers explicitly accorded to IO's by states or other IO's in their constituent instrument or treaties

-Implicit Attribution:

-UN Reperations for Injuries, page 710:

Powers which are implicitly conferred to an IO's which by necessary implication are essential to the performance of its duties

-WHO Nuclear Weapons, para 25:

IO's can execrise implied powers... which those not expressely accorded to that IO's by necessary implication are essential to the performance of its duties

Decisions of IO's

-Chapter VI UN Charter: Peaceful settlement of disputes (not binding)

-Chapter VII: Action with respect to threats to peace, breaches of the peace, and acts of aggression (can be binding depending on the language)

-Can have binding effect e.g. UNSC Resolutions:

Art. 25 UN Charter: "The Members of the United Nations agree to accept and carry out the decisions of the Security Council in accordance with..."

The binding Force of UNSC Resolutions

-Namibia Opinion para 114;

-Kosovo Opinion para. 94:

-The binding effect of a Security Council resolution depends on its wording, context, and purpose; only operative paragraphs expressed in mandatory terms ("decides") create legal obligations, while exhortatory language ("urges", "calls upon") does not.

Binding Force of UNGA Resolutions

-Generally: no

-In the external sphere (i.e. regulating State conduct under international law):

-UNGA resolutions are recommendatory only

-In the internal sphere (organisation's own functioning),

-UNGA does have binding authority

-adoption of the UN budget,

-apportionment of financial contributions (Art 17),

-creation of subsidiary organs,

Legality of Unilateral Secessions (c) arguments for and against

Arguments for:

-UN Charter, Arts. 1(2), Art. 55 : right of self-determination

-Art. 1 ICCPR, Art. 1 ICESCR; recongised right of self-determination

-Secession of Québec (Supreme Court of Canada, 1998) (3 conditions for lawful unilateral secession under international law)

1. (a) those under colonial domination or foreign occupation;

2. (b) peoples subject to "alien subjugation, domination or exploitation outside a colonial context

3. (c) a people "blocked from the meaningful exercise of its right to

Kosovo Advisory Opinion (ICJ, 2010), para 79-84

-Declaring independence is not prohibited by international law, but the ICJ did not affirm a right to unilateral secession

Arguments against:

-Art. 2(4) UN Charter; principle of territorial integrity

1. Presumes the territorial continuity of existing states and can be interpreted as precluding unilateral secession.

-Friendly Relations Declaration 1970)

1. Affirms territorial integrity principle

Sources of international (d)(c)

-Art. 38(1) SICJ: primary sources

1. Treaties

2. CIL

3. General principles of law

-Art. 38(1)(d) SICJ: secondary sources

4. Judicial decisions

5. Teachings of qualfied legal scholars

-Art. 38(2)

7. Ex aequo et bono (equity and justice)

Art. 38 SICJ is Non-exhaustive!

8.Jus cogens

9. Resolutions of IO's e.g. UNSC Resolutions

10. Unilateral declarations (Nuclear Tests Case)

-Non-hiearchal other than jus cogens

Conflict of laws

-No hierarchy (other than peremptory norms)

Example: Art. 53 VCLT (a treaty conflicting with a peremptory norm is void)

-Lex posterior derogate legi priori

1.The later rule prevails over earlier rule

-Lex specialis derogat lego generali

1. The specific law prevails over the general rule

-Lex superior derogat lego inferior

1. Superior rule prevails over lower rules (i.e. jus cogens norms)

Treaties

-Governed by VLCT, if concluded after 1980 per Art. 4 VCLT

-Art. 2 VCLT (Definition)

1. Requirements:

-Agreement (concurrence of intent)

-Written (Ihlen declaration, can exist, but not covered by VCLT)

-Between states (two states, not movements)

-Goverened by international (references international law norms, if references national law, then govered by national law)

-Qatar v. Bahrain: Minutes/short-hand notes = treaty

Invoking national law for violating treaties

-Invocation of national (internal law) as justification for violating treaty obligations (Art. 27 VCLT)

1. Prohibited, one exception Art. 46 VCLT

-Conclusion of treaties which are manifestly and objectively evident to be contrary to national law (Art. 46 VCLT)

-States can violate treaty obligations, if the treaty requires them to violate domestic laws which are of fundamental importance, and the treaty is manifestly contrary to that rule

-Land and Maritime Boundary, Cameroon v Nigeria ICJ:

-Has been interpreted very restrictively by the ICJ

-Whether the head of state of Nigeria can give consent for the state

-ICJ: Nigeria could not invoke Art. 46 VCLT as the violation was not manifest -

-It must be obvious, and it was not to Cameron as Head of state per Art. 7 is presumed to have full powers

Full Powers (d) & options

-Art. 7 (1) (a) VCLT (Full powers by written notice):

1. A document provided by the state that demonstrates the capacity of an individual to represent a state in the negotiations of a treaty and or international agreement

-Art. 7(1)(b) VCLT (implied authority):

1. Practice of States behave as if the person has authority, and the surrounding circumstances show acceptance of that authority.

-Art. 7(2) VCLT (individuals assumed to have full powers):

1. (a) Heads of State, Heads of Government and Ministers for Foreign Affairs (for any)

2. (b) Heads of diplomatic misisions for treaties (in their mission state)

3. representatives sent to conferences or IO meetings (for treaties at that conference or IO)

Treaty interpretation (c) (d)

-Sources of rules for treaty interpretation: CIL, Arts. 31-33 VCLT, Anything parties collectively agree to interpret

-Art. 31 VCLT: general rule for interpretation

-Aguas del Tunari v Bolivia: The sequence in Art. 31 VCLT is not hierarchical. You must read the treaty holistically. Just because it mentions textual first, does not indicate primacy

-Art. 32 VCLT: supplementary means of interpretation

-Land, Island and Maritime Frontier Dispute (El Salvador v Honduras, ICJ):

-The fact that Articles 31 and 32 are set out separately does not mean there are two interpretative processes.

-You do not have to "exhaust" Article 31 before looking at Article 32, can be referred to at any point

Principle of contemporaneity (d)

-Treaty terms are interpreted according to the meaning they had at the time the treaty was concluded

Evolutive interpretation (d)(c)

-Applicable if can be proven

-the meaning or scope of a term or expression used in the treaty should follow the development of the law,

-Costa Rica v Nicaragua Dispute regarding Navigational and Related Rights (Memorise) ICJ:

-Example of evolutive interpretation, parties intended 'for purposes of commerce' phrase to develop and align with modern and dimsissed rigid interpretation

-WTO United States - Shrimp/Turtle

-Evolutive interpretation of meaning of "exhaustible natural resources"

-The term is not limited to non-living resources, Living species (sea turtles) qualif

Treaty Suspension/termination

-Relative grounds for invalidity (Art. 46-50 VCLT)

1.Don't affect the validity of a treaty as a whole between the remaining parties

Treaty becomes voidable between the invoking and offending parties

-Absolute grounds for invalidity (Art. 51-53, 64 VCLT)

Treaty becomes void, and its legal effect is repealed between all treaty parties

Material Breach (d) (c)

-Art. 60 VCLT

-Interpreted very restrictively (Not how many rules of a provision are breached, but rather how significant the breach is)

Croatia v Slovenia (PCA)

-judicial collusion insufficinet,

-Gabčikovo-Nagymaros Case: paras 47-53

-Rainbow Warrior Case: Cannot be invoked by a state that committed the first material breach

Fundamental change of circumstances (d) (c)

-interpreted very restrictively

-Requires a: (1) a change, (2) a fundamental change, (3) a unforeseeable change, (4) radically changes the extent of the obligations still to be performed under the treaty

-Fisheries Jurisdiction Case: Paras 36-38 → Art. 62 is part of customary international law

-Gabcikovo-Nagymoros Case: Paras 104-105 → Art. 62 is exceptional and strictly construed

-Racke v Hauptzollamt Mainz (ECJ)

rare accepted example, case concerning the dissolution of Yugoslavia

Reservations

-Resevations to treaties (Art. 2(1)(d) VCLT) - definition

-Limits of Reservations (Art. 19 VCLT)

-Tacit acceptance of reservation (Art. 20(5) VCLT)

-States accepting reservations (Art. 21(1)(a) VCLT)

-Dispute between a reserving State and an objecting State (Art. 21(3) VCLT)

Reservations vs. Interpretative declarations (d) (c)

-Interpretative declaration = 'unilateral statement, however phrased or named, made by a State or an IO, whereby that State or that organization purports to specify or clarify the meaning or scope of a treaty or of certain of its provisions'

-Crucial test: Whether it excludes / modifies legal text;

-Belilos v Switzerland (ECtHR)

1. necessary to ascertain the original intention of those who drafted the declaration. To establish the legal character of a declaration, look at the title given to it and its substantive content

Principle of pacta sunt servanda (d) (c)

-Principle of pacta sunt servanda

-Gabčíkovo-Nagymaros (ICJ): (Art. 26 VCLT), informed by good faith, obliges parties not to abandon a binding treaty unilaterally but to seek cooperative solutions within the treaty framework

Treaties and third parties

-Art. 35 VCLT: a State may become bound by a provision of a treaty (if possible), but only upon express consent in writing

-Exception: Art. 38 VCLT: if the rules in the treaty provision have entered into CIL, the rule can bind a third State; without consent (however the CIL is binding then, not the treaty)

-Rights in favorem tertii: Art. 36 VCLT: treaty may confer rights (rights not obligations) on a third State without written consent; the third State's assent is presumed unless it indicates otherwise

CIL (d)

Art. 38 SICJ:

-Evidence of a general practice (state practice) + accepted as law (opinion juris sive neccesititats)

State practice for CIL (c)

1. North Sea Continental Shelf (ICJ) :

-Para 73; Para 74: (1) The rule must be widespread representative, constant/consistent, and virtually uniform

-Practice of states which are specially affected by a rule of international law are more relevant (e.g. countries with access to oceans for law of sea CIL)

-Passage of time is not a requirement (instante customs can exist)

- if a state is attempting to modify a rule of CIL, its behvaouir is treated as violation of CIL until a new rule of CIL is established

2. Nicaragua

para 186: state practice does not have to be perfectly uniform, and state actions contrary to a rule of CIL may not necessarily be evidence of the non-existence of a rule of CIL, but rather evidence of breaches of that rule

3. S.S. Lotus:

-Decided on an adhoc basis whether silence is evidence of a state practice or whether it is proof it is not state practice

4. Aslyum Case, ICJ: (memorise);

- a party which relies on a regional custom must prove that this custom is established in such a manner that it has become binding on the other party

5. Frontier (Mali/Burkina Faso) (memorise):

-even newly emergent states by CIL, for legal stability

accepted as law (opinio juris sive neccesititas) (d) (c)

-Belief that the practice is law and necessary

-North Sea Continental Shelf (ICJ, 1969):

-Para 77: States must "feel that they are conforming to what amounts to a legal obligation."

-Some critieria/evidence for opinio juris and state practice overal

Persistent Objector Doctrine (d) (c)

- Doctrine of Intl. law whereby states which have persistently objected to the development of a rule of CIL during its formative period, are not bound by that rule, and equally cannot invoke it

-States must have objected during the progression/development of the rule, once it becomes CIL, persistent objectorship does not apply

-Fisheries, ICJ (memorise)

-the objection must be clear, persistent, as previously mentioned in the formative period

-Roach & Pinkerton v USA, Micheal Domingues V USA

-Once a customary rule of international law qualifies as a jus cogens or peremptory norm, then persistent objectorship is inapplicable (regardless of if it was done properly)

General principles of law (d)(c)

-Fundamental legal principles common to the major legal systems of the world, recognised by civilized nations, and applied by the Court to fill gaps where treaties and customary international law provide no rule.

-ILC Draft Conlusion 3, 4, 5, 6, 7, 10:

-1) principles derived from national legal systems of states

-2) principles formed within the international legal system

Can general principles of law, by themselves, create binding international legal obligations?

-Border and Transborder Armed Action (Nicaragua v Honduras) (memorise)

-No, Good faith is a general principle of law, but it cannot create obligations where none otherwise exist.

-ILC Draft Conclusion 10: Yes

UNCLOS Reservations:

-Article 309: No reservations to UNCLOS is allowed, considered a 'package-deal' treaty

UNCLOS Dispute settlement

-UNCLOS, Part XV

-Art. 287(4) and (5) UNCLOS

1. If both parties have chosen the same procedure (consent converges), the dispute goes to that procedure, unless they agree otherwise.

2. If the parties have not chosen the same procedure (consent diverges), the dispute is submitted to arbitration under Annex VII, unless they agree otherwise

-Methods of dispute settlement under UNCLOS

1. Arbitration

2. International Court of Justice (ICJ)

3. International Tribunal for the Law of the Sea (ITLOS)

Discovery as a title to land (c)

-Island of Palmas Case, PCA, 839-840: discovery first is not sufficient to claim sovereignty over a land; must prove some exericese of authority

Islands

Art. 121 UNCLOS

-Baselines

-Arts 5-7, 9-10 UNCLOS

-Internal waters belong to the state

-Always straight

-Landward side = internal waters (rivers, lakes, canals) - part of the territory of a State (Art. 8 UNCLOS)

-Low-water line (Art. 5)

Archipleagic States

-Art. 47 UNCLOS

Maritime Zones

1. Territorial Sea

2.Contiguous zones

3. Exclusive economic zone (EEZ)

4. Continental shelf

5. The High Seas

6. The Area

Territorial Sea

-12 nm from shore

-Arts. 2-4 UNCLOS

-State exercises full sovereignty over water, airspace, seabed, and subsoil

-Right of innocent passage

1. Possibility as another state to pass through the territorial sea, as long as the passage is innocent (must demonstrate it is necessary, safest, shortest, warships guns must be pointing down, submarines must be surfaced)

-Not prejudicial to the peace, good order, security of a coastal state (Arts. 17-26 UNCLOS)

-Limits (Arts. 27-28 UNCLOS)

Contiguous zones

-another 12 nautical miles, so 24 nautical miles from land)

Art. 33 UNCLOS

-Limited rights over the water column

-Functional jurisdiction for certain purposes only

1. customs laws and regulations

2. fiscal laws and regulations

3. immigration laws and regulations

4. sanitary laws and regulations

Exclusive economic zone (EEZ)

-up to 200 nm

-Sea-bed, sub-soil, and water

-Needs to be declared (and to what point)/By proclamation

-Sovereign rights for exploring, exploiting, conservign and managing living and non-livng resources of the water, seabed, and subsoil

-Arts. 55-57 UNCLOS

-Exploring, exploiting, conserving, managing natural reserves, whether living or non-living, and other economic activities

Continental shelf

-Legal definition/not geographical

-Arts. 76-77 UNCLOS

-natural prolongation of the landmass and can extend beyond 200 nautical miles, but only grants rights over seabed resources

-About the seabed and sub-soil (not water column)

Potentially extendable to 350 nautical miles

High seas

-Outside of internal waters, territorial sea, EEZ

-Relates to the water column

-No sovereignty for states

-Arts. 86-89 UNCLOS

- Art. 58 UNCLOS (Freedoms of the high seas)

-Right of hot pursuit (Art. 111 UNCLOS)

The Area

-Concerns the sea-bed beyond continental shelves (not water column)

-Arts. 133, 136-137, 140 UNCLOS

-The common heritage of manking

-Governed by the International Seabed Authority (ISA)

-Resources collected in the area are shared amongst states

Transit Passage

-Arts. 37-44 UNCLOS

Delimitation (d) (c)

-Art. 15, 74, 83 UNCLOS

-Maritime Delimitation in the Black Sea (Romania v Ukraine) (ICJ) EEZ/CS (3 stages)

1.provisional equidistance line from the chosen base points

2.Adjust the provision line in light of the relevant circumstances (e.g. islands, coasts, etc)

3. adjusted line is equitable and/or not disproportionate

Piracy (d)

-Art. 101 UNCLOS; Defintion of Piracy

3 forms of jurisidiction

1. Prescriptive jurisidiction

-The capacity of a state legislature to enact laws

2. Enforcement jurisidiction

-The executive capacity to enforce laws

3. Adjudicative jurisdiction

-Capacity of adjudicative bodies, e.g., courts, to apply, interpret and resolve disputes of law

Lotus Principle (d) (c)

Definition: States are free to act in any manner which is not prohibted by a rule or norm of international law (e.g. treaty law, CIL, general principles, etc)

Principles of criminal jurisidiction (d)

1. Territorial Principle: A state has criminal jurisdiction over all offences committed on its territory, regardless of the offender's or victims' nationality, and comprises two-subprinciples

a. Objective territorial principle: A State asserts jurisdiction because the offence was completed or resulted on its territory

b. Subjective territorial principle: an element of the offence occurred on its territory, e.g. it was initiated, prepared on the territory

2. Effects Doctrine: State claims jurisdiction whenever foreign conduct produces substantial effects within the state, even if the offence is not "completed" there. Usually employed for anti-trust/competition law related disputes or an cases concerning economic matters

3. Nationality principle

a. Active nationality principle: A state may assert criminal jurisdiction over offences committed by its nationals, even when the conduct occurs abroad.

b. Passive Nationality Principle: A state may assert criminal jurisdiction over offences committed against its nationals, even when the crime occurs abroad, and the offender is a foreigner.

Flag State jurisdiction

Jurisdiction over acts on board established on the basis of the nationality of the ship / airplane

-Ship = Flag State flown aboard ship

-Airplane = State of registration of airplane

Protective principle

-States claim extra-terriotiral jurisdiction over acts committed by foreign nationals in a foreign country as the acts affect a vital state interest

-National security/ security of goverment officials. Economic security, financial security

Example:

-E.g. a Dutchman counterfeiting UK currency in Spain

-The UK can claim jurisdiction, even though no UK perpetrator or victim, and the crime does not occur in UK

Universality Principle

-States can claim extra-territorial jurisidciton for violations of international crimes (war crimes, gencoide, torture, use of chemical weapons, etc) regardless of nationality of victims or perpetrators, where conduct took place, or any link to the claiming state

-Applicability limited to international crimes (war crimes, crimes against humanity, genocide, torture, use of chemical weapons)

-Very high severity of crime required (terrorism is not even considerd to fall under it)

Principle of effective nationality (d) (c)

Definition: The principle of effective nationality (cil) requires a real and genuine link (a "genuine connection") between an individual and their state for that nationality to be recognized under international law, especially for diplomatic protection or when someone has multiple nationalities (e.g., residence, economic ties, family, etc)

-Nottebohm ICJ: must prove a meaningful connection to the state in question (e.g. must live there, work there, have family residing there, a complete lack of a meaningful connection and merely having citizenship is insufficient e.g. for diplomatic protection

Criminal responsibility of states as legal persons (d)

-Does not exist

-States incur international responsibility, not criminal punishment.

-Sanctions = reparations, cessation, guarantees of non-repetition — but not prison

Principle of aut dedere, aut judicare (prosecute or extradite) (d) (c)

- rule of CIL whereby if a person suspected of very serious international crimes is found on a State's territory, the state is legally obligated to prosecute that individual for those crimes, or extradite to other states seeking prosecution of the indivudal

-Applies to international crimes of a peremptory nature

-Habré case (ICJ): affirmed principle of prosecution or extradition for torture, and failure to do so is a breach of international law

Principle of quasi-jurisdiction (d)

-refers to treaty-based obligations requiring a State to establish criminal jurisdiction over certain offences when the suspect is present on its territory and is not extradited.

Immunities of the state sources of law (d)

-Art. 2(1) UN Charter - principle of sovereign equality, also CIL

-Article 2(7) of the UN Charter/also considered CIL - principle of non-interventionism

-UN Convention on Jurisidictional Immunites (not in force, but reflects CIL)

Forms of immunity of jurisidiction (d)

1. immunity from jurisdiction (of courts to initiate proceedings)

2. Immunity from execution (of courts to enforce their binding decisions against states)

State immunity (d)

Immunity of a state (as a legal person) before the domestic courts and judicial system of other states

Restrictive immunity (d) (c)

-States have immunity for acta jure imperil (sovereign acts)

-States do not have immunity for commercial acts (Acta jure gestionis)

-To determine, Art. 2(2) UN Convention on Jurisdictional Immunities + Private Person test

1. Art. 2(2): The nature and purpose of the contract or transaction

2. Private person test: Can a private person engage in the same activity as the state, if yes, then commercial act

-Must examine carefully:

Example: Bank Accounts for embassies:

If used for commercial acts (e.g. buying tv's) - no; if for public acts (paying salary of diplomatic staff, yes)

Case-law:

-Tredtex trading coporation, Empire of Iran case: affirmed no immunity for commercial acts

-Equatorial Guinea v France: Recieving states cannot relabel diplomatic property or invoke seriousness of crimes of diplomats to bypass immunity

-ICJ, certain Iranian assets:

-Immunity from jurisdiction and immunity from execution are distinct (e.g. just because a court has jurisdiction over a state, does not mean that court has the jurisdiction to enforce decisions against that state - that requires a separate legal basis)

Exceptions/ways around restrictive immunity (d)

(1) Prove its an commercial act of state

(2) Waiver per Arts 7-8, and 19 UN Convention on Jurisdictional Immunities:

(3) Territorial tort exception (Art. 12) NB only for civil courts for damages, and only allows jurisdiction to start proceedings, does not remove immunity of enforcment of decisions

(4) Jus cogens violations; disputed (see below)

Jus cogens violations v. State immunity

-ICJ, Germany v Italy: Juridictional Immunities of the State (2012), para 93:

-No conflict between State immunity and jus cogens exist, state immunity is a procedural rule of CIL, and jus cogens rules are of a substantive nature

-Thus, the existence or breach of a jus cogens norm does NOT remove State immunity.

Immunites of the state offical (first) (d) (c)

1. Immunity rationae personae (personal immunity)

-Form of immunity reserved for certain high-ranking officials of a state, namely the troika (Head of state, head of goverment, minister of foreign affairs)

-enjoy full immunity from jurisdiction in other states, both civil and criminal, for private and official acts

-For as long as they remain in office they are also immune for acts before they took office

-No exception, not even for the commission for jus cogens violations, such as genocide, crimes against humanity and war crimes

ICJ, Arrest Warrant Case:

-Certain holders of high-ranking offices in a state, such as the troika (Heads of state, heads of government, and ministers of foreign affairs) enjoy immunity from jurisdiction in other states, both civil and criminal

-Non-exhaustive list: terminology 'includes' suggests other high-ranking officials may qualify!!

Xo Bilai: The Minister of commerce can qualify for personal immunity

Mofaz Case: Minister of Defence can qualify for personal immunity

- Only 4 options to prosecute officials with personal immunity

(1) In their own countries by domestic courts

(2) Home state waives their immunity

(3) After the official no longer holds office for acts committed prior or after office, or acts in office of a private nature

(4) Before certain international courts or tribunals such as the ICC, ICTY, ICTR

-However, ILC argues that exception should be made for jus cogens norms (e.g. genocide, crimes against humanity, apartheid, torture, enforced dissappereance, however this is not accepted by the Arrest Warrant, Gaddafi, etc

-Gaddafi Case, France:

-Even for acts of terrorism, or the most grave international crimes, immunity ratione personae still applies while in office

Immunities of the state official (second) (d) (c)

-Immunity rationae materiae (functional immunity)

-Applies to any State official, current or former, but immunity only for official acts during time in office

-No immunity for private acts prior/during/after

-Certain acts, even if claimed to be 'official acts,' are not, and thus not protected by functional immunity

Pincohet Case:

-The crime of torture (a jus cogens norm) cannot be considered an official act of a state official, and thus not subject to immunity rationae materiae

Khurts Bat Case:

The crime of kidnapping can fall outside the scope of immunity rationae materae aswell

Diplomatic and Consular Immunities sources of law (d)

- Vienna Convention on Diplomatic Relations (1961) VCDR, CIL

Diplomatic Immunity

- Article 31(1) VCDR; immunities of officials

→ Full immunity ratione personae from the receiving State's criminal jurisdiction while in post

-Article 31(1) VCDR

→ Immunity while in post, subject to limited exceptions (private immovable property, succession, private commercial activity).

-Article 39(2) VCDR

→ Immunity continues only for official acts performed during the mission→ This is immunity ratione materiae.

-Inviolability of premises

a. Art. 22(1), Art. 22(2) VCDR

-Documents, archives, correspondence, diplomatic residence

a.Art. 24, Art. 27(2)-(4), Art. 30(1) VCDR

Tehran Hostages, ICJ, paras 61-63:

-Receiving States have an (postive) obligation to protect diplomatic missions

-Simply respecting invioability is not sufficent

Generations of human rights

1. First Generation (Civil and political rights)

2. Second generation (economic, social, and culutral rights)

3. Third generations (collective and solidarity rights)

Civil and political rights

-Largely negative obligations

-Enshrined in ICCPR; UDHR (UNGA resolution non-binding)

-rights related to liberty & security of the person, equality before the law, and access to a fair trial, etc

-For ICCPR; State parties report to the Human Rights Committee

Economic, social, and cultural rights

-Largely positive obligations

-ICESCR

-Rights related to work, social security, education, housing...

-Parties report to ECOSOC, CESCR monitors compliance

Human rights monitoring

-UN Treaty-based bodies

-Established under UN Human rights treaties (not subsidiary organs of the UN)

-Methods of monitoring:

-State reports (e.g. Art. 40 ICCPR)

-Complaints (e.g. by individuals, OP1 ICCPR or by states, Art. 41 ICCPR)

-Ad-hoc investigations (Art. 20 CAT)

-New approaches (e.g. OPCAT)

-UN Charter based bodies

-UN Human Rights Council

-Two complaint procedures:

(1)Complaint Procedure (individual communications)

-Allows individuals, groups, or NGOs to submit complaints

(2)Universal Periodic Review (UPR)

-Every UN Member State is reviewed on its entire human rights record

-Special procedures

-A system of independent human rights experts.

-Appointed by the HRC, to monitor human rights violations in other countries, conduct visits, ect

-Shadow reporting

-In the various treaty bodies, States have every few years the obligations to submit reports on how well they're doing with the protection of human rights (ICCPR, ICESCR...)

-NGOs also have their own reports on what they themselves observed (to avoid bias of the States)

Refugee Convention

-Determining refugee status: Art. 1 RC

-Non-refoulement: Art. 33(1) RC

-Excludes internally displaced persons

Typology of Human Rights Obligations

-Negative: the state must refrain from acting, e.g. committing violations of human rights

-Positive: the state must act to allow the enjoyment/realisation of human rights e.g. provide education

Human Rights Committee Commented that:

HR obligations are the obligation to

1. Respect

2. protect and

3. fulfil human rights

Reservations from HR treaties/withdrawal

Reservations:

-Art. 19 VCLT, Art. 20 VCLT,

Withdrawal:

-Art. 54 VCLT, Art. 56 VCLT

Methods of non-adherence to human rights obligations

(1) Derogations

-Applicable in times of national emergencies

-Art. 4 ICCPR, Art. 15 ECHR

-Exceptional and temporary

-No entire suspension or continuous circumvention

-Certain rights are non-derogable e.g. Art. 4(2) ICCPR

(2) Internal Legitimate Limitations Clauses

-legitimate limitations clauses enshrined in specific HR provisions

-art. 12(3),19(3), & 21 ICCPR, Art. 8(2) ECHR

-3 general requirements across HR Treaties

(1)Prescibed by law

(2)To pursue a legitimate interest or protect interests (a)Only provided specifically in the provision itself

(3)Necessary (proportionality)

Territoriality of HR treaties

-Acts inside own territory (confirmed)

-Acts in areas outside national jurisdiction (extraterritoriality, detention of individuals on the high seas (disputed)

-Occupied territories (disputed)

-acts by diplomatic or consular officers (disputed)

Extra-terratoriality of HR treaties (ICCPR) (d) (c)

-Art. 2(1) ICCPR: tates must respect and ensure Covenant rights to persons: "within their territory and subject to its jurisdiction."

Two interpretations:

(1) within territory and subject to jurisdiction (cumulative conditions

-excludes extraterritorial application

-States are not bound by HR treaties when acting abroad

-Circumvents HR obligations

(2) Within the territory and subject to jurisdiction (alternative conditions )

-If a state has jurisdiction over an individual, even if abroad, then extra-terroriality of HR treaties applies

-States are bound by HR treaties regardless of where or how they act

-Less circumvention

-ICJ, Israeli Wall Advisory Opinion, paras 108-111; affirmed alternative condition interpretation of Art. 2(1) ICCPR, so whenever in territory OR subject to jurisdiction

-Human Rights Committee Comment confirmed it was alternative (2)

-ECtHR - Al Skeini v. UK (EIL)(paras. 130 - 150); jurisdiction over persons = exercise of physical power and control over the person in question.

Art. 6 ICCPR Arbitrary deprivation of life

-Under Article 6 ICCPR, deprivation of life must not be arbitrary.

-"Arbitrary" ≠ simply "unlawful' it means:

-Unjustified, unnecessary, disproportionate.

-E.g. summary executions

Relationship between IHL and IHRL

-Human rights cannot be deprived during times of war

-Legality of Nuclear Weapons Advisory Opinion, para. 25

1. The right to life does not cease in armed conflict.

2.What counts as "arbitrary deprivation of life" is assessed by reference to IHL.

-Isreali Wall AO, para 106:

1.IHRL and IHL apply concurrently.

2. IHL may act as lex specialis for interpreting human-rights norms.

State responsbility sources of law (d)

-ARSIWA (not a treaty, but a reflection of CIL)

Requirements of international responsibility

-1. Art. 1 ARSIWA: internatinional responsibility of a state requires an internationally wrongful act

-Art. 2 ARSIWA: Elements of an internationally wrongful act:

(1) Act or Omission

(a) Acts = Nicaragua

(b) Omissions = Tehran, Corfu Channel

(2) Violates an international obligation

(a) CIL, treaties, general principles of law

(b) Art. 14 ARSIWA: When the violation occurs

(c) Barcelona Traction: diplomatic protection is not erga omnes and may be exercised only by the directly injured State

(3) The act is attributable to the state

-Art. 4 ARSIWA (Conduct of Organs)

-Art. 5 (Actors exercising governmental authority)

-Art. 6 ARSIWA (organs at disposal of other states)

-Art. 7 ARSIWA (ultra vires acts)

-Art. 8 ARSIWA (conduct directed or controlled by states

-Art. 9 ARSIWA (Conduct in absence of govemrental authorites)

-Art. 10 ARSIWA (conduct of insurrectional movement)

-Art. 11 ARSIWA (State acknowledges and adopts the conduct in question as its own)

(4) There is no circumstance precluding wrongfulness (CPWs) of the act or omission

-Art. 20 ARSIWA (Consent)

-Art. 21 ARSIWA (Self-defence)

-Art. 23 ARSIWA (Force majeure)

-Art. 24 ARSIWA (Distress)

-Art. 25 ARISWA (Necessity)

-Art. 22 ARSIWA (Countermeasures)

-Termination of countermeasures (Arts. 49-53) ARSIWA

Art. 4 ARSIWA (Conduct of Organs) (d) (c)

-Art. 4(2) ARSIWA; organs as defined by national law

-Includes Omissions of organs!!!!!!

-Salvador Commercial Company Case: Irrelevant whether it is exectutive, legislative, or judicial branches of goverment which the organ belongs

-Edge of Upper Silesia Case: Irrelevant whether the act (law) enabling the organs is from the executive, legislative branches (e.g. statutes from parliament = legislative, or executive orders from head of state= executive)

-Heirs of the Duc de Guise: Irrelevant whether local or regional authorities/organs

-La Grand Case: Irrelevant whether state or federal authorities or organs

-ICJ Genocide (defacto organs):

-Private actors can be defacto 'organs' of state

-Complete Dependence Test: the actor is completely dependent on the state, extremely high — basically "near-identity with the State, no autonomy (very hard to meet)

Art. 5 (Actors exercising governmental authority (d)

-Elements of governmental authority have been accorded to an entity that is not an organ

-E.g. private prisons, military contractors

Art. 6 ARSIWA (organs at disposal of other states (d)

-The conduct of an organ placed at the disposal of a State by another State shall be considered an act of the former State

Art. 7 ARSIWA (ultra vires acts) (d) (c)

-The Caire Case,: Murder of a French national by two Mexican officers attributable to Mexico

-Valesques Rodrigues Case IACtHR:Still attributable to actors operating outside authority, or even if they violate internal law

-NB: Actors must use the uniform, barracks or powers accorded by the state in committing those acts

In other words if a cop simply kills someone while off-duty (not wearing uniform, not exercising police powers, using personal weapon = no attribution)

Art. 8 ARSIWA (conduct directed or controlled by state (d) (c)

Two options (effective control/overall control)

(1) effective control

-Nicaragua, GenocideICJ: Effective Control Test

-The state has effective control over private individuals

-Very high threshold

-state instructions were given in respect of each operation in which the alleged violations occurred, not generally in respect of overall actions

(2) overall control

-Tadic, ICTY, para 117 & Aleksovi, ICTY, para 146: Overall control test

-Overall control, lower threshold

-Concerned about a case about an individual's criminal responsibility

Art. 9 ARSIWA (Conduct in absence of governmental authorities)

-If private individuals (or a group) step in and effectively perform government functions because the actual state authorities are not present, unable, or failing to act,

Art. 10 ARSIWA (conduct of insurrectional movements)

NB: If the issurencional movement forms a new state, the acts of the movement are attirubatle to the new state (not the old)

-Bolívar Railway Company Case: The acts of failed rebels are not attributable to the State.

-French Company of Venezuelan Railroads; Georges Pinson Case; once the rebels become the actual government or effectively are the goverment, their prior conduct is retroactively attributed to the State.

Art. 11 ARSIWA (conduct acknowledged and adopted by a state)

-Tehran Hostages: Granting of a seal of approval will be dependent on the context; is it clear, explicit, encouraging, adopting the conduct on our own, from now onwards, or retroactively as well, from what level of government

Circumstances precluding wrongfulness (CPWs)/Reprisals

-Inapplicable for jus cogens violations

-Jursidictional immuniites is separate not covered by CPWs

Forms:

-Art. 20 ARSIWA (Consent)

-Art. 21 ARSIWA (Self-defence)

-Art. 23 ARSIWA (Force majeure)

-Art. 24 ARSIWA (Distress)

-Art. 25 ARISWA (Necessity)

Consent - Art. 20 ARSIWA (D) (C)

-Armed Activities (DRC V Uganda): Consent must be clearly established - actually expressed rather than merely presumed

-Sarvarkar Case, Russian Indeminity Case: However silence or cooperation in circumstances calling for a response may amount to tacit acceptance

-Must be before (if its after its a waiver which has same effect but is Art. 45 ARSIWA)

Art. 21 ARSIWA (Self-defence) (D)

-Measures of self-defence may also violate other international obligations