HC + WC 2 Flashcards
Lotus principle, PCIJ (1927):
Sovereign States may act in any way they wish so long as they do not contravene international law.
–> So knowing what the law is, is really important
Primary rules:
International legal rules that limit State conduct (e.g., rights and duties under the Genocide Convention).
Secondary rules:
International legal “rules about rules” how to make, interpret, change, apply and enforce primary rules.
Examples secondary rules:
VCLT and Articles on Responsibility of States for Internationally Wrongful Acts (RSIWA), adopted by UNGA in 2002, reflect custom, apply unless lex specialis.
The only exception is when a specific rule applies to the situation. (lex specialis).
(Secondary) legal test for State responsibility for internationally wrongful acts
Article 2, ARSIWA
Article 2, ARSIWA:
There is an internationally wrongful act of a State when conduct consisting of an action or omission:
(a) is attributable to the State under international law; and
(b) constitutes a breach of an international obligation of the
State.
Breach of obligation: article 2(b), ARSIWA
1) International obligation
Example: Are nuclear weapons legal under national law? ICJ could not find a rule on this.
2) Of a State
–> Rule applies to state. Not an international organization.
3) Act or omission
–> Omissions are important in international law
4) Breach of international obligation
5) Breach occurred when obligation existed
Attributable to a State: article 2(a), ARSIWA
State: Abstract legal concept that acts through individuals
–> having to draw a line between the breacher and the state.
Attribution: legal link between abstract State and individual conduct that breaches international law
State organ under national law (article 4) (e.g., executive, legislative, judicial, sub-national)
–> Could be the mayor
Exercise of governmental authority delegated in national law (article 5) (e.g., contracted prison guards,
border control)
- National law
–> Showing that it’s a state order
- Must act in official capacity
–> Person was on duty. If they’re not working (at home or vacation), then the breach is not linked to the State. - Attribution possible even if conduct ultra vires (article 7)
–> You’re acting beyond the authority that’s given to you. If you work for a state organ/exercise an order, the state will be held responsible for your misconduct even if you break a national law.
Attribution of conduct by private individuals
General rule: States not responsible for private individuals’ conduct
Exceptions:
1. Individual is instructed by the State, acts in official capacity and conduct not ultra vires (article 8)
–> did what their job is. The person followed the instructions given by the state.
- Individual is under the State’s effective control, acts in official capacity and conduct is not ultra vires (article 8)
–> Has not happened (yet) - Individual acts as government where it is absent (article 9)
–> Like at the end of a war - Individual opposes the government but then becomes the
government (article 10)
–> example: (trying to) overthrow the government - State acknowledges and adopts individual’s conduct as its
own (article 11)[
Consequences of State responsibility
–> Consequences are not punishment
–> Duty of performance (article 29)
–> Duty to cease (stop) the internationally wrongful act (article 30)
–> Assure and guarantee non-repetition (article 30)
–> Duty of full reparation (with interest) for material and moral injury (articles 31 and 38)
–> Countermeasures (article 49) (seminar)
–> Can be combined
Three forms of reparation
1) Restitution: “re-establish the situation which existed before the wrongful act was committed” (article 35)
–> changing the legal situation (for example)
Two exceptions: impossible or burden disproportionate to benefit
2) Compensation: “financially assessable damage” caused (article 36)
3) Satisfaction: for injury that cannot be repaired by restitution or compensation
(article 37) (e.g. apology)
Two exceptions: cannot be disproportionate to injury or
humiliating to responsible State
Injured State and erga omnes duties
–> Injured State can invoke responsibility of another State (article 42):
1. Breached duty owed to individual State
2. Breached duty owed to a group of States, including that State (e.g. multilateral treaty)
3. Duty is owed to all States (erga omnes)
If duty owed to a group of States or all States (2 or 3), injured State invoking responsibility of another State must
be specially affected by the breach or the breach radically changes the position of all States to which the duty is owed
Exception: treaty provision states otherwise (e.g., Genocide Convention)
Article IX, Genocide Convention
Disputes between the Contracting Parties relating to the interpretation, application or fulfilment of the present Convention, including those relating to the responsibility of a State for genocide or for any of the other acts enumerated in article III, shall be submitted to the International Court of Justice at the request of any of the parties to the dispute.
–> ICJ ruled that all ratifying States have a ‘common interest’ in ensuring compliance with this convention in light of its purpose and article IX.
Special consequences for “serious breach” of jus cogens law
–> “Serious breach”: “gross or systematic failure” to respect or perform jus cogens duty (article 40)
–> Three consequences for all States (article 41):
1) Cooperate to lawfully end breach
2) Non-recognition
3) Duty not to aid or assist in maintaining the situation
International Court of Justice (ICJ Statute)
–> UN member States’ duty to resolve disputes peacefully (art. 2(3), UN Charter) and comply with ICJ’s decisions (art. 94, UN Charter)
–> Principal and permanent judicial organ of the UN with general subject-matter jurisdiction
–> 15 judges elected for 9-year renewable terms
–> Can settle international legal disputes between States (contentious cases)
–> States whose rights and duties form the basis of the dispute must consent to the ICJ deciding a specific case
State consent to ICJ dispute settlement
Before the dispute exists:
- Treaty provisions (article 36(1))
–> A treaty provision stating: If we disagree, we go to ICJ - Declaration of compulsory jurisdiction (article 36, paras. 2-5)
–> statement by a country, in these situations we consent to you resolving the dispute
State consent to ICJ dispute settlement
After the dispute exists:
- Special agreement – set out subject-matter of the dispute and parties to it (article 36(1))
–> Try to resolve their disputes on their own, doesn’t work - Forum prorogatum – State consents after case brought against it at the ICJ
–> Asking consent from breaching state. Another state brought the dispute to the court, then after that they consent.
ICJ powers in contentious cases
1) Indicate legally binding provisional measures (article 41)
–> Exceptional, only if the ICJ has prima facie jurisdiction, claim plausible, request related to claim, urgent risk of irreparable prejudice to rights
2) Issue legally binding judgments that are “final and without appeal”, separate and dissenting opinions possible (article 60)
3) Settle disputes about the “meaning and scope of the judgment” (article 60)
4) Revise judgments if there is “discovery of some fact of such a nature as to be a decisive factor” (article 61).
ICJ and advisory opinions (article 65(1))
–> International organizations cannot be parties to contentious cases
–> They can request advisory opinions “on any legal question” to help them deal with an issue
–> UN Security Council, UN General Assembly, and those authorized by the UN General Assembly (e.g. other UN
organs, 15 specialized agencies)
–> Submissions by States and international organizations
–> Advisory opinions are not legally binding but carry legal weight and contribute to clarifying the law
