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Lecture notes
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Statehood
- States participation
o International law depends on the active engagement of States with each other for its
development and validation. There is no institutional structure or organisation that
can legislate for States or humanity at large, or a court that can compulsorily
adjudicate and bind litigants.
o State consent is one of the most fundamental principles of international law. The
1969 Vienna Convention on the Law of Treaties in art 34 makes it clear that ‘A treaty
does not create either obligations or rights for a third State without its consent’.
o However, the mere existence of a State, and its recognition as a State within the
international system, carries with it certain obligations. As a result, even Satates
which are often considered to be delinquent or ‘rogue’ States remain subject to
fundamental principles of the international system, including international law, and
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have been the subject of action within the UNSC to ensure their compliance with
international norms.
- States abiding international law
o Henkin is regularly cited: ‘It is probably the case that almost all nations observe
almost all principles of international law and almost all of their obligations almost all
of the time’. The international order in post 1945 UN era has been predominantly
founded upon a rule-based system encompassing a wide network of multilateral
treaties, and for a state to survive, it must be a law-abiding international citizen.
- 1933 Montevideo Convention on Rights and Duties of States
o Article 1
§ A permanent population
§ A defined territory
§ Government (stable political organisation)
§ Capacity to enter into relations with others
o Article 2
§ The federal state shall constitute a sole person in the eyes of international law
o Article 3
§ The political existence of the state is independent of recognition by the other
states. Even before recognition the state has the right to defend its integrity
and independence, to provide for its conservation and prosperity, and
consequently to organize itself as it sees fit, to legislate upon its interests,
administer its services, and to define the jurisdiction and competence of its
courts. The exercise of these rights has no other limitation than the exercise
of the rights of other states according to international law.
o Article 4
§ States are judicially equal, enjoy the same rights, and have equal capacity in
their exercise. The rights of each one do not depend upon the power which it
possesses to assure its exercise, but upon the simple fact of its existence as a
person under international law.
- Recognition
o Declaratory theory
§ ‘The recognition of a state merely signifies that the state which recognizes it
accepts the personality of the other’ – 1933 Montevideo Convention, art 6.
§ ‘The recognition of a State is not constitutive but merely declaratory’ –
Deutsch Continental Gas Gesellschaft v Polish State (1929) 5 ILR 11
o Constitutive theory
§ ‘The full international personality of rising communities… cannot be
automatic… as its ascertainment requires the prior determination of difficult
circumstances of fact and law, there must be someone to perform that task’ –
H Lauterpacht, Recognition in International Law (1948) 55\
o Practical significance
§ State & diplomatic immunity (week 5)
§ Standing in a foreign court
§ Policy influence with respect to democracy / human rights
§ Non-recognition policy (Stimson Doctrine) as sanction
- Peoples and the right to self-determination
o Should the right to self-determination be a legal factor to be taken into account in the
emergence of new States?
o This principle is recognised in the UN Charter (art 55), the 1966 International
Covenant on Civil and Political Rights (art 1), numerous UN General Assembly
resolutions on matters concerning Human Rights, the rights of peoples, and
decolonisation, and also b ICJ in the Western Sahara and the East Timor Cases.
International organisations
- Definitions
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Definition of treaty
- VCLT Art 2.1(a) “Treaty” means an international agreement concluded between States in
written form and governed by international law, whether embodied in a single instrument or
in two or more related instruments and whatever its particular designation.
- Governed by international law: intention to create obligations under international law
(Anthony Aust, Modern Treaty Law and Practice (2nd ed 2007) 20.
o Test is State’s intent to be bound (Qatar v Bahrain case)
- Whatever its particular designation: eg. Treaty, convention, protocol, statute, agreement,
accord, compact, covenant (C&M 132).
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§ (b) the treaty provides that only specified reservations, which do not include
the reservation in question, may be made; or
§ (c) in cases not falling under sub-paragraphs (a) and (b), the reservation is
incompatible with the object and purpose of the treaty.
- Acceptance and rejection
o Evolution of international legal rules
§ Genocide Conventions case [1951] ICJ Reports 15
• States which make a reservation to a treaty will be a party if it is
compatible with the object and purpose of the Convention, even if it
has been objected by one or more parties to the treaty but not by
others. If the reservation is incompatible, it will not be a party to the
treaty.
• Codified in VCLT Art 20.4
o VCLT Art 20.4
§ (a) acceptance by another contracting State of a reservation constitutes the
reserving State a party to the treaty …;
§ (b) an objection by another contracting State to a reservation does not
preclude the entry into force of the treaty as between the objecting and
reserving States unless a contrary intention is definitely expressed by the
objecting State; …
§ 5. … unless the treaty otherwise provides, a reservation is considered to have
been accepted by a State if it shall have raised no objection to the reservation
by the end of a period of twelve months after it was notified of the
reservation or by the date on which it expressed its consent to be bound by
the treaty, whichever is later. (NOTE: Be careful about dates)
o Legal effects of reservations and of objections to reservations (VCLT Art 21)
§ 1. A reservation established with regard to another party in accordance with
articles 19, 20 and 23:
• (a) modifies for the reserving State in its relations with that other
party the provisions of the treaty to which the reservation relates to
the extent of the reservation; and
• (b) modifies those provisions to the same extent for that other party
in its relations with the reserving State.
§ 3. When a State objecting to a reservation has not opposed the entry into
force of the treaty between itself and the reserving State, the provisions to
which the reservation relates do not apply as between the two States to the
extent of the reservation.
• When reservation excludes applicability of particular provision, no
difference between acceptance and objection to particular
reservation.
o Contractual approach
§ The traditional concept of reservations involved the proposition that no
reservation was valid unless it was accepted by all the contracting parties
without exception… This concept was directly inspired by the notion of
contract.
o Post-war flexible approach: followed in VCLT Art 19-23
§ The [Genocide] Convention[‘s] object is ... to confirm and endorse the most
elementary principles of morality. [T]he contracting States do not have any
interests of their own .. . ; they merely have a common interest, namely the
accomplishment of [the] high purposes of the convention. Consequently, in a
convention of this type one cannot speak of individual advantages or
disadvantages to States, or of the maintenance of a perfect contractual
balance between rights and duties.
• ∴ intention that as many states as possible should participate
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d. subject to the provisions of Article 59, judicial decisions and the teachings of the
most highly qualified publicists of the various nations, as subsidiary means for the
determination of rules of law.
Introduction
- ICJ Statute, Art 38
o The Court… shall apply:
§ (a) International conventions, whether general or particular, establishing rules
expressly recognized by the contesting states;
§ (b) International custom, as evidence of a general practice accepted as law;
§ (c) the general principles of law recognized by civilized nations;
§ (d) subject to the provisions of Article 59, judicial decisions and the teaching
of the most highly qualified publicists of the various nations, as subsidiary
means for the determination of rules of law.
- European Union Guidelines
o This guideline on promoting compliance with international humanitarian law define
customary international law as a source of international law that ‘is formed by the
practice of States, which they accept as binding upon them.
- Opinio juris
o The belief that acting in conformity with law (the psychological element).
State Practice
- Nicaragua case
o ‘Not in absolutely rigorous conformity with the rule… the Court deems it sufficient
that the conduct of States should, in general, be consistent with such [customary]
rules, and that instances of State conduct inconsistent with a given rule should
generally have been treated as breaches of a rule, not as indications of the recognition
of a new rule’.
o Unanimity not required.
o Interplay of state practice and opinio juris offers in different cases.
- Time element
o Short
§ ‘… short period of time… not necessarily a bar to the formation of new rule
of customary international law… indispensable that State practice during that
period…, should have been both extensive and virtually uniform.’ (NSCS
case).
o Long
§ ‘Sufficiently long period – consent and acquiescence of other states’
(‘general toleration’) (Fisheries case).
- Identification of customary international law (Draft conclusions provisionally adopted by ILC
Drafting Committee) 30 May 2016
o 5 Conduct of the State as State Practice
§ State practice consists of conduct of the State, whether in the exercise of its
executive, legislative, judicial or other functions.
o 6 Forms of Practice
§ 1. Practice may take a wide range of forms. It includes both physical and
verbal acts. It may, under certain circumstances, include inaction.
§ 2. Forms of State practice include, but are not limited to: diplomatic acts and
correspondence; conduct in connection with resolutions adopted by an
international organization or at an intergovernmental conference; conduct in
connection with treaties; executive conduct, including operational conduct
“on the ground”; legislative and administrative acts; and decisions of national
courts.
§ 3. There is no predetermined hierarchy among the various forms of practice.
- Examples of state practice
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forces, and after failing to provide the sum demanded, was taken away, stripped and
put to death. Mexico attempted to avoid liability.
o Dr Verzijl in the France Mexico Mixed Claims Commission held that the State
responsibility must be interpreted in the light of the doctrine of the ‘responsabilité
objective’.
o ‘According to that doctrine international responsibility might be incurred by a State
notwithstanding the absence of any fault on its side, seeing that a State was
responsible for all acts committed by its officers or organs constituting delinquencies
from the point of view of the law of nations, regardless of whether the officers or
organs in question have acted within the limit of their competence or have exceeded
it’.
- Subjective theory: Corfu Channel Case (United Kingdom v Albania) [1949] ICJ Report 4
o Two British warships were substantially damaged and deaths of sailors were incurred
while those ships were passing through the Corfu Channel, by mines that were laid.
o The Court held that laying the minefield could not have been accomplished without
the knowledge of the Albanian Government.
o ‘The obligations incumbent upon the Albanian authorities consisted in notifying, for
the benefit of shipping in general, the existence of a minefield in Albanian territorial
waters and in warning the approaching British warships of the imminent danger to
which the minefield exposed them. Such obligations are based on certain general and
well-recognized principles…’
- Objective responsibility excluding the mental factors such as intention.
o Cf Different standards of care (fault, negligence, due diligence etc) in primary rules:
‘Establishing these is a matter for the interpretation and application of the primary
rules engaged in the given case (Commentaries p 82)
- Time factor: the breach must be established of an obligation which was binding upon the state
at the time the act or omission occurred (Art 13).
- The violation of a State’s territory may also constitute an international wrong, and such a
violation need not even be a deliberate act: Cosmos 954 Claim
o Soviet satellite crashed and scattered radioactive wreckage over northern Canada.
- State to state damage: Trail Smelter Case
o Canadian factory produced toxic smoke that adversely affected American orchardists
just to the south in the Columbia River Valley. The arbitral tribunal held that there
was responsibility for damage a State allowed to spread beyond its borders.
Attribution
- State organs (Art 4) or those empowered by the law of that State (Art 5) are responsible for
the act of their official even if the official’s act exceeded its authority or contravened
instructions (Art 7).
- Also, conduct carried out by a group in fact exercising elements of governmental authority or
by an insurrectional group (if becomes a new government later) would also be considered as
an act of that state (Art 9-10).
- Even in cases where the person responsible for a wrongful act is a private individual or
unknown, the act will be attributable to the state if:
o The person was acting under the authority or control of the state (Art 8);
o The state acknowledged and adopted the act as its own (Art 11);
o Cf the state failed to take appropriate action (omission).
- Attribution by State Control
o In Nicaragua, the question was whether the conduct of the Contras was attributable to
the US.
§ ‘United States participation, even if preponderant or decisive, in the
financing, organising, training, supplying and equipping of the contras, the
selection of its military or paramilitary targets, and the planning of the whole
of its operation, is still sufficient in itself,… For this conduct to give rise to
legal responsibility of the United States, it would in principle have to be
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proved that that State had effective control of the military or paramilitary
operations in the course of which the alleged violations were committed’.
o Bosnian Genocide Case [2007] ICJ Rep 43, para 400
§ Effective control: ‘the State’s instructions were given, in respect of each
operation in which the alleged violations occurred, not generally in respect of
the overall actions taken by the persons or group of persons’.
o Youman’s Claim (1926) 4 RIAA 110 (United States – Mexican General Claims
Commission)
§ Youmans, an American citizen, together with two other American work
colleagues, was killed at the hands of a mob in 1880 in Mexico. Mexican
troops failed to protect, rather fired on the house and killed Youmans.
§ ‘There could be no liability whatever for such misdeeds if the view were
taken that any acts committed by soldiers in contravention of instructions
must always be considered as personal acts’.
§ The Commission made an award that Mexico was to pay to the US
Government a compensation.
o Yeager v Islamic Republic of Iran (1987) 82 ILR 179 (Iran – United States Claims
Tribunal)
§ The actions of the ‘revolutionary guards’ in forcing the expulsion of a US
citizen was attributable to the Iranian Government.
o Union Bridge Company Claim (1924) 6 RIAA 138
§ A British railways official unintentionally appropriated materials for the
construction of a bridge under the mistaken impression the materials
belonged to the enemy.
§ ‘The consignment of material to Bloemfontein was a wrongful interference
with neutral property. It was certainly within the scope of Mr Harrison’s duty
as railway storekeeper to forward material by rail, and he did so under
instructions which fix liability on His Britannic Majesty’s Government’.
§ ‘The liability is not affected by either the fact that he did so under a mistake
as to the character and ownership of the material or that it was a time of
pressure and confusion caused by war, or by the fact, which, on the evidence,
must be admitted, that there was no intention on the part of the British
authorities to appropriate the material in question’.
o A federal State will be bound by the conduct of its constituent part, even if the central
government has no control over the relevant activity: Toonen Case.
- Attribution by adoption
o In Tehran Hostage Case, the first question was: did the approval of the act amount to
the act of adoption?
§ ‘In the view of the Court, however, it would be going too far to interpret such
general declarations of the Ayatollah Khomeini to the people or students of
Iran as amounting to an authorization from the State to undertake the specific
operation of invading and seizing the United States Embassy’.
o In Tehran Hostage Case, the second question was: did the subsequent endorsement of
the situation amount to the act of adoption?
§ ‘‘The policy thus announced by the Ayatollah Khomeini, of maintaining the
occupation of the Embassy [refusal to order to put an end to the situation and
issuing a decree etc]… was complied with by other Iranian authorities and
endorsed by them… The result of that policy was fundamentally to transform
the legal nature of the situation created by the occupation of the Embassy and
the detention of its diplomatic and consular staff as hostages. The approval
given to these facts by the Ayatollah Khomeini and other organs of the
Iranian State, and the decision to perpetuate them, translated continuing
occupation of the Embassy and detention of the hostages into acts of that
State’:
o SR Articles Commentaries, 123
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