Public International Law Week 5 | Quizlet

The story from co-existence to cooperation of states

The primary actors of international law were States and they were there to promote their individual interests.

- Par in parem non habet imperium.

- External & internal aspects of sovereignty

Gradually it became evident that mere co-existence is not ideal considering the amount of interdependence.

This led to a higher level of international cooperation in key areas + global issues being addressed at a global level, especially because states have individual interests and will lose sight of the general interest if the problems are not dealt globally.

Problem of an international character are:

- International rivers, straits, the high seas etc.

- Peace and security: war and international terrorism

- Climate change

- Human rights

→ cooperation is given shape in international organisations

Are international organisations a higher authority than states?

NO. Because for an International Organisations to be created you need a treaty, by states themselves! The powers are conferred by the States to the International Organisations

The UN - principal organs

Security council

General assembly

Economic and Social Council

International Court of Justice

Trusteeship Council

Secretariat

General assembly competences

- Competence of encouraging the progressive development of international law (de lege ferenda) -> art 13(1a) charter

- They contribute to CIL by indicating opinio iuris → analysis of text, voting patterns and explanations of votes

and state practice (nicaragua case 188, nuclear weapons para 70)

Their resolutions are soft law

International Court of Justice (expert bodies here)

Expert bodies within this judicial organ:

- International Law Commission

- Human Rights Committee

- Committee against Torture

What is the Secretariat?

Administrative organ

The UN subsidiary organs VS

Specialised agencies

The UN subsidiary organs → Created by the principal organs of the UN (i.e. ILC)

Specialised agencies → Other international organisations with a special status because of their very close relations with the UN

What is the applicable law when it comes to international organisations?

Charters

Treaties

- The treaties signed by the organisation itself

VCLT 2

- It applies only in so far it represents customary international law (has not been ratified yet)

Customary International Law

ARIO (Articles On The Responsibility Of International Organizations)

- Made by the ILC

- Criticised because they basically copied the ARSIWA

The principle of specialty (case)

WHO Nuclear Weapons Opinion (Para. 25). "The Court need hardly point out that international organizations are subjects of international law which do not, unlike States, possess a general competence. International organizations are governed by the 'principle of speciality'

Principle of attribution of powers definition + case

The powers of an International Organisation need to be expressly given to them, usually found as a statement in their constituent instruments

WHO Nuclear Weapons Opinion (Para. 25)

Does an organization have only the powers attributed to it?

NO. There may be implied powers

Cases of implied powers

Reparation opinion

+

WHO Nuclear

Weapons Opinion (Para. 25)

What do you know about the decisions of the Security Council?

Art. 25 Charter

The Members of the United Nations agree to accept and carry out the decisions of the Security Council in accordance with the present Charter.

- Not all decisions are binding

- Binding decisions usually fall under chapter 7 of the Charter

- The language of the decision is decisive when it comes to the legal basis which the SC chooses

What do you know about the decisions of the General Assembly?

Internal sphere decisions are binding

- They are of administrative nature

- Also, i.e. a new state joins the UN

External sphere decisions are NOT binding

Lecture two.

Two types of rules based on Hart

Primary rules

- Rules of conduct

- What you are legally obliged to do (or refrain from doing)

- Includes consequences of disobedience

Secondary rules

- Anything that is not a primary rule (e.g. rules that allow for the creation, extinction and alteration of primary rules)

- Power conferring rules

same division of rules but based on international law

Primary rules

Rules that create obligations or confer rights to the subject (what you are required to do)

Secondary rules

Rules about the consequences in case of violation of a primary rule

Are rules on state responsibility always secondary rules?

YES!!!!!! wohoo

Articles on the Responsibility for States for Internationally Wrongful Acts (ARSIWA) - tell me what you know about this. 7 points

- Noted by the GA in 2001

- It is NOT a treaty → BUT, codification of Customary international Law

- They are secondary rules

- Covers all obligations in all areas of international law

- Irrespective of the source of the obligation (art. 12 ARSIWA)

- Principle of lex specialis derogat legi generali (Art. 55 ARSIWA)

N.B. States can agree on different laws of responsibility among themselves

Where can one find the key elements of state responsibility? (articles + cases)

Art. 1 & 2 ARSIWA

ICJ Tehran Hostages (para. 56)

Military and Paramilitary Activities in and against Nicaragua (para. 226)

1. Act

- Understood in broad manner: acts & omissions

Why is it called an act and not a crime?

Because you don't want to paint a state as a criminal. Your goal is to solve a dispute.

2. International law obligation

- Any obligation under (customary) international law

3. Attribution (definition + articles)

- Attribution is the set of rules establishing the link between the persons actually committing the wrongful act and the State

4-11 ARSIWA

Article 4 ARSIWA

Conduct of organs of a state

- The conduct of state organs is the conduct of that state regardless of whether it belongs to the legislative, executive or judicial department of the government → Salvador Commercial Company

- Any position and at any level of governance (municipalities etc) → Heirs of the duc de Guise + Le Grand Case

Art. 4(1)

a) Irrespective of functions

b) Irrespective of hierarchical position

c) Irrespective of level of government

Article 4(2): Renvoi to internal law

- If an entity is classified as an organ based on national law, they are an organ

Article 5 ARSIWA

Conduct of persons or entities exercising elements of governmental authority

- Persons or entities which are not organs of the State but which are empowered by the law of that State to exercise elements of the governmental authority

- Empowerment must be explicit

- Usually applies to delegated powers (private prisons, private military companies, security firms with police powers etc.)

Article 6 ARSIWA

You put at the disposal of another state your organs

- If Greece gives an army battalion to Italy and they fully stop controlling it, Italy can be attributed their acts

- If that army still reports to the original country, then article 6 is not applicable

Article 7 ARSIWA

Excess of authority or contravention of instructions

- The conduct of an organ of the State is an act of the State even if it exceeds its authority or contravenes instructions (ultra vires) -> IF in public capacity

Caire case

Velasquez Rodriguez case

The criterion is: Was the position used in order to achieve the envisaged result?

Article 8 ARSIWA

Conduct directed or controlled by a State

- Acts of private persons or groups are attributable "if the person or group of persons is in fact acting on the instructions of, or under the direction or control of, that State in carrying out the conduct"

ICJ, Military and Paramilitary Activities (Nicaragua v. US) para. 116→ Effective control*

ICTY, Tadic case para. 117→ Overall control

Each court has maintained their separate tests for control Aleksovski,

ICTY & Application of the genocide convention, ICJ (para 399-406)

Article 9 ARSIWA

Conduct carried out in the absence or default of the official authorities

- The conduct of a person or group of persons is an act of a State if the person or group of persons is in fact exercising elements of the governmental authority in the absence or default of the official authorities

Article 10 ARSIWA

Conduct of an insurrectional or other movement

- The conduct of an insurrectional movement which becomes the new Government of a State is an act of that State under international law

- Whatever they did during the revolution, they will be responsible as the new government

Bolivar Railway Company case; French Company of Venezuelan Railroads

Article 11 ARSIWA

Conduct acknowledged and adopted by a State as its own

- Conduct can be attributed to the State "if and to the extent that the State acknowledges and adopts the conduct in question as its own"

Tehran Hostages (para. 73)

He went on expressly to declare that the premises of the Embassy and the hostages would remain as they were until the United States had handed over the former Shah for trial and returned his property to Iran.

Para. 58 → article 8 ARSIWA

The police not showing up would be considered attributable under art. 4 ARSIWA

= three strands of analysis by court

N.B. on effective control vs overall control

Effective control is at a high level. JUST giving money does not fulfil this

VS

Overall control has a lower threshold

4. Circumstances precluding wrongfulness. what are they and are they forever?

- Even if there is prima facie an internationally wrongful act which is attributable to the State, the State may not be wrong if there is a "circumstance precluding wrongfulness"

- Only a temporary "block"; the underlying obligation still exists and applies again if and when the circumstance is removed (Rainbow Warrior)

Art. 20 ARSIWA:

valid consent from the "victim" State (Case)

Savakar case

An activist promoting India's independence

Art. 21 ARSIWA:

lawful self-defence (articles)

Articles 2(4) and 51 UN Charter

Art. 22 ARSIWA:

countermeasures

Requirements for countermeasures:

1. Cysne case → Countermeasures only against the injuring state

2. You can not use force (officially)

3. You can not suspend fundamental rights or go against jus cogens (art. 50 ARSIWA)

4. They must be reversible

5. Restricted in time

6. You need to inform the other state BEFORE you countermeasure

7. Termination of countermeasure: if the offending state stops + If a court takes over the dispute you need to suspend the countermeasure (art. 53 ARSIWA)

Other states taking measures (article 48 ARSIWA) is Very debated

What is the goal of countermeasures?

The goal is to prompt states into action rather than penalise them

Cases of countermeasures

Naulilaa, Cysne, Air Service Agreement, Gabcikovo-Nagymaros, Fyrom v. Greece

Art. 23 ARSIWA:

force majeure ("irresistible force" or "unforeseen event")

3 elements:

a) Irresistible force or unforeseen event

b) Beyond the control of the state

c) Not foreseen and not logically easily foreseeable

It is NOT force majeure if:

- The state invoked the situation or assumed the risk (e.a. transporting nukes on sea)

- It is simply difficult or cumbersome

- Accidental or unintentional acts

Art. 24 ARSIWA: distress (no other reasonable way to save life)

A situation when you have to violate international law vs saving the author's life or the lives of other persons (e.a. pilots)

Rainbow Warrior

Tribunal sought three things:

a) Existence of exceptional circumstances,

b) Reestablishment of the original situation

c) Existence of good faith effort to obtain consent of affected State

Art. 25 ARSIWA: necessity (only way to "safeguard an essential interest against a grave and imminent peril") 3 points

- Cannot be invoked if you are to fault (sub par 2)

1. Peril needs to be objectively established

2. Future dangers may also fall within the scope as long as they can be established based on the existing data

3. Violation must be proportionate

Can any circumstances be justified?

Art. 26 ARSIWA: these circumstances cannot justify a breach of peremptory norms (jus cogens)

Overall Process of establishing state responsibility

1. Act

2. Conduct attributable to the state?

3. Breach of an international obligation? CIL (persistent objector) or treaty (not ratified it)

4. Do circumstances precluding wrongfulness apply?

Retortion

Sanction

Reprisal

Retortion → An unfriendly but lawful act

Sanction → Measures taken by an International Organisation in response to a violation by a state under the Charter of the Organisation (usually- not set in stone definition)

Reprisal → Forceful response - prohibited in international law

Rainbow warrior case

Hainan island incident

France argued distress when seeking the agents' return, citing medical necessity. However, the International Court of Arbitration found the claim of distress unconvincing.

-------

The U.S. invoked distress, arguing that landing in China was necessary to save the lives of the crew after the collision. No case court; solved through diplomatic talks