Public International Law Week 5

Question 1

Principal organs of the UN

Answer 1

Created by constituent treaty directly. E.g., UNGA, UNSC, ECOSOC, ICJ

Question 2

Subsidiary organs of the UN

Answer 2

Created by principal organs. Art 7 Charter of the UN states that principal organs can have subsidiary organs. There are further specific Articles for the principal organs to create subsidiary organs who function on the responsibility that the primary organs give them.

Question 3

Plenary organs

Answer 3

Delegates are appointed by governments and subject to government instructions. E.g., the UNGA is a plenary primary organ (193 MS that have a seat on the GA). Usually, these are the policy-making organs but have relatively limited scope of binding decisions.

Question 4

Limited organs

Answer 4

Must implement the policy of the plenary organ. Exception of a limited organ is the UNSC.

Question 5

Applicable law for international organizations

Answer 5

ILC Draft Articles on the Responsibility of International Organizations. This is not a treaty, however, can be considered as CIL (must look at opinio juris and state practice to determine for each case).

Question 6

Immunities of the UN as an international organization

Answer 6

Art 105(1): The Organization shall enjoy in the territory of each of its Members such privileges and immunities as are necessary for the fulfillment of its purposes.

Question 7

Principle of speciality - IOs

Answer 7

International organizations are governed by the “principle of speciality”, that is to say, they are invested by the States which create them with powers, the limits of which are a function of the common interests whose promotion those States entrust to them (WHO Nuclear Weapons Opinion)

Question 8

Principle of attribution of powers

Answer 8

Powers to IO’s are granted, whether expressly or implicitly, by the founding States (negotiating states) of international organization. The legal basis for these powers are found in the treaty making the IO.

Question 9

Legal powers of international organizations

Answer 9

An organ of an IO can issue a decision that binds the MS (however, only if a state accepts it as such).

Question 10

Express powers

Answer 10

“The powers conferred on international organizations are normally the subject of an express statement in their constituent instruments.” (WHO Nuclear Weapons opinion, para. 25)

Question 11

Implied powers of international organizations

Answer 11

Although the treaty of that IO may not expressly confer it powers to do something, it may need to do that thing as it essential to the performance of its duties (Repatriation Opinion)

Question 12

Binding decisions of UNSC

Answer 12

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 present Charter.”

Question 13

Are UNSC Resolutions binding?

Answer 13

No - the UNSC resolution itself is not binding but the decisions in the resolution themselves may be binding. Must always look at language.

Question 14

Chapters in UN which give UNSC binding decisions power

Answer 14

Chapter 7: binding decisions - action with respect to threats to the peace, breaches of peace, and acts of aggression. The UNSC may also enforce ICJ measures.

Question 15

Examples of binding language in UNSC decision/resolution or ICJ decision

Answer 15

Key words: shall, must, agree to accept and carry out, demands

Question 16

Examples of non-binding language

Answer 16

Urges, recommends, advises

Question 17

UNGA binding decision powers

Answer 17

Can only make binding decisions on issues in the internal sphere of the organization (to the UN such as suspending, accepting, expulsion of members - Art 4 UN Charter) and some external issues (e.g., taking action outside of the UN sphere such as doing something in their own legal system). No Articles that give UNGA power to make binding decisions.

Question 18

Internal sphere of UNGA binding decisions

Answer 18

Household, institutional affairs; budget and enforcement (Art 17 UN Charter); admission, suspension, expulsion (Art 4-6 UN Charter).

Question 19

External sphere of UNGA binding decisions

Answer 19

Express provision required in constituent treaty in order to take decisions binding the member States to implement measures in their own national legal system or to take certain action outside the organization

Question 20

UN non-binding decisions/resolutions as CIL

Answer 20

In the Nicaragua case, the Court said that if there is opinio juris and state practice that shows the binding character of such issues, then it can be considered as CIL and therefore binding. In GA Nuclear Weapons Opinion, the Court said that even though UNGA resolutions are not binding they can sometimes have normative value and provide evidence for establishing the extent of a rule or emergence of CIL. Also spells out how to determine this - 1. analysis of text, normative character; 2. voting pattern(s) of resolution(s); 3. explanations of vote (before and after) 4. State practice (of which you look at pre-existing practice and post-resolution practice)

Question 21

ILC ARSIWA

Answer 21

Not binding as they are not articles part of a treaty nor adopted by GA, however, it is CIL. This is the default document used for issues of responsibility that can occur in any field of international law (except for diplomatic law which is its own regime - see Tehran case). If specific treaty has rules on the issue, then apply lex specialis and apply that treaty first, but of course, many treaties don’t have rules on responsibility, thus need to use ARSIWA. If you violate treaty, then rules on responsibility kick in

Question 22

Conditions to establish an IWA

Answer 22

Art 2 ARSIWA: 1. Conduct, whether act or omission, is attributable to the State + 2. That conduct, whether act or omission, constitutes a breach of an international obligation. Need combination of state failing to act/acting and obligation of the law concerned. Note that damage or fault is not included as the State that wants to complain of violation of international law does not have to show/complain that there was damage (possible to have violation w/o damage) nor that govt acted intentionally or negligently.

Question 23

How to determine attribution of state conduct (who acts on behalf of the state)?

Answer 23

Basic rule: The conduct of organs of the state is attributable (Art 4 ARSIWA). Organ status determined by Art 4(2) ARSIWA - anyone who has status under national law will be considered as an organ of the state.

Question 24

Governmental authority empowered as an organ of the state

Answer 24

Art 5 ARSIWA (e.g., airplane personnel checking your immigration status on behalf of the state. So when aircraft company checks passport, they are empowered via governmental authority and thus, can be considered as an organ of the state). Art 6 ARSIWA: organ placed at disposal of the government. Art 9 ARSIWA: Absence/default authorities in which private persons can take it upon themselves to substitute for the absence of state authorities and are thus considered as an organ of the state (e.g., there’s an earthquake and state authorities can’t reach effected area, but other private persons start looting shops. Then private citizens can take it upon themselves to arrest looters).

Question 25

Excess of authority and contravention of instructions

Answer 25

Art 7 ARSIWA: The conduct of an organ of a State or of a person or entity empowered to exercise elements of the governmental authority shall be considered an act of the State under international law if the organ, person or entity acts in that capacity, even if it exceeds its authority or contravenes instructions. If you act in an official capacity (Art 4-6, 9 ARSIWA) it is attributable to the state.

Question 26

Are conduct of persons in private capacity attributable to the state?

Answer 26

No - conduct for private gain/private acts are not attributable to the state

Question 27

The conduct of private individuals/groups/entities cannot be attributed to the state, with the exception of:

Answer 27

Conduct instructed, directed, or controlled by the State (Art 8 ARSIWA) - e.g., diplomatic staff case, Nicaragua case, Tadic case, Genocide case.
Conduct of insurrectional/secessionist movement if they are successful in forming government (Art 10 ARSIWA) - e.g., everything Taliban has done from 2001 - 2021.
Conduct acknowledged an adopted by the state as its own (Art 11 ARSIWA) - e.g., Diplomatic Staff case in which organs of Iranian state said hostages will stay in place until US hands over Shah, thereby adopting conduct of the students that did the actions themselves first.

Question 28

For attribution of state conduct, do we use effective control or overall control?

Answer 28

To determine if the conduct of an actor can be attributed to the state (under Art 8 ARSIWA) we use effective control - threshold under Nicaragua case. ICTY Tadic case used overall control, however, the genocide case revered to effective control.

Question 29

Effective control of conduct

Answer 29

The foreign group needs to be completely dependent on the state if their actions are to be attributable to that state under Art 8 ARSIWA (Nicaragua case, Genocide case)

Question 30

Overall control of conduct

Answer 30

Use for organized armed groups and show that the foreign state is involved in the planning, coordination, and organization of attacks of the private armed groups (Tadic case, however, overturned in Genocide case which said there is only one standard of control - effective control as said in Nicaragua).

Question 31

Can you invoke national law to escape performing international obligations?

Answer 31

No - Art 3 and 32 ARSIWA; Art 27 VCLT

Question 32

What must you link a breach of an international obligation to, first?

Answer 32

Sources of international law such as treaty, CIL, binding decision of an international organization

Question 33

Due diligence obligation - three conditions

Answer 33

1. State must have awareness of circumstances.
2. State must have means to act.
3. Appropriate steps: dependent on circumstances

Question 34

Circumstance precluding wrongfulness

Answer 34

If one of the six justifications are met, then it is not an internationally wrongful act.
1. Consent (Art 20 ARSIWA)
2. Self-defense (Art 21 ARSWA)
3. Countermeasure (Art 22 ARSIWA)
4. Force majeure (Art 23 ARSIWA)
5. Distress (Art 24 ARSIWA)
6. (State of) necessity (Art 25 ARSIWA)

Question 35

Consent as circumstance precluding wrongfulness

Answer 35

Art 20 ARSIWA: If states want to agree to certain foreign states doing something, they can consent. So, a state can consent to foreign troops entering territory (e.g., Kazakhstan requesting Russia to send troops to suppress protests and thus, you can’t prosecute Russia for sending troops then. But, obviously this consent is limited to being legal under law – e.g., can’t consent to targeted killing in other states

Question 36

Self-defense

Answer 36

Art 21 ARSIWA: strictly in the military sense (and within Art 51 UN Charter)

Question 37

Countermeasures

Answer 37

Art 22 ARSIWA: (an illegal however due to circumstance precluding wrongfulness now legal) measure taken by a state in response to a violation of international law by another state. There needs to be an internationally wrongful act by a state prior to the measure, so to invoke countermeasures as circumstances precluding wrongfulness, you must have first fulfilled internationally wrongful acts elements first and showed that other state also fulfilled the internationally wrongful act elements before so. Use Art 49 with Art 42 ARSIWA together to invoke so. Other states can also invoke countermeasures against the state that acted wrongly, using Art 52 with 48. To invoke this, there must be an obligation owed to the community as a whole (erga omnes) that was violated by the other state and Art 54 refers to taking lawful measures. Furthermore, if the circumstance ends, justification for one’s own wrongful act must also end.

Question 38

Force majeure

Answer 38

Art 23 ARSIWA: “Cannot be held to do the impossible” - must show that there was an irresistible force that caused the state to act the way it did. e.g., if you are in an airplane, and the storm pushes you to neighbouring state airspace that you enter without consent that would otherwise be a violation but here you can invoke force majeure. Unforeseen events are part of this too (e.g., earthquakes, landslides, etc. which force you to do something you otherwise would not do). However, if you have a certain choice in how you would respond, then you would have to choose one which doesn’t violate international law. Essentially, you have no other way to act than in an internationally wrongful act.

Question 39

Distress

Answer 39

Art 24 ARSIWA: When a certain state official has to act to save lives with persons who are entrusted to their care, then can act in unlawful manner - e.g., navy ship captain has to rescue soldiers in the territorial sea and goes in the territorial sea to save them – then this is distress as otherwise can’t just enter territorial water without permission.

Question 40

(State of) necessity

Answer 40

Art 25 ARSIWA: circumstances are such that there is an imminent threat to the essential necessities of the state. “Safeguarding an essential interest against a grave and imminent peril” The threat/risk must be very close in time, cannot be distant. E.g., financial system about to crash.
Considerations to keep in mind: - this is CIL as codified in ARSIWA, cannot be used to justify a breach of peremptory norm (ius cogens) e.g., prohibition against genocide, torture, slavery -cannot affect human rights or humanitarian obligations of a state , cannot affect diplomatic and consular obligations e.g. inviolability. Also, the conduct must be the only means available to the state and the state invoking necessity cannot have contributed to the situation.

Question 41

Jus cogens limitation in invoking circumstance precluding wrongfulness

Answer 41

Art 26 ARSIWA: Cannot invoke circumstance precluding wrongfulness if this would lead to violation of jus cogens - e.g., cannot consent to another state committing genocide, torture, aggression, etc.

Question 42

Injured states’ invocation of responsibility

Answer 42

Art 42 ARSIWA: the state must be in some way prejudiced, affected, or damaged by the violation. The obligation is owed to that state individually or a group of states affected collectively.

Question 43

Invocation of responsibility by a State other
than an injured State

Answer 43

Art 48 ARSIWA: Any State other than an injured State is entitled to invoke the responsibility of another State in accordance with paragraph 2 if…
As noted by the Barcelona traction case, all states have a legal interest in the protection of these obligations erga omnes. Other states can invoke violations of another state if they concern collective interest (e.g., human rights - if NL treats dutch citizens badly, but no other states are affected by this, however, this is a collective obligation and so Spain can say what’s going ooonnnnn (in the name of collective interest) or community interest (these are obligations owed to the international community as a whole (e.g., if state commits genocide, then all states have an interest in invoking responsibility on that committing state).

Question 44

Measures other states can take when there is a violation of international law

Answer 44

Art 48(2) ARSIWA; ART 54 ARSIWA

Question 45

What do primary rules establish?

Answer 45

Primary rules establish binding obligations (both substantive and procedural) that states ought to comply with.

Question 46

What do secondary rules establish?

Answer 46

Secondary rules govern the consequences of non-compliance (failure to act or violation of a prohibition) with primary rules

Question 47

General principles of responsibility: ARSIWA

Answer 47

Art 1 – 3 ARSIWA: Every internationally wrongful act of a State entails the international responsibility of that State”
- Internationally wrongful act = attributable to a state + a breach of an obligation
- Irrelevance of domestic (internal) law

Question 48

Process for establishing if a state has committed an internationally wrongful act

Answer 48

Two steps - Art 2 ARSIWA
1. Is act or omission attributable to the state (Attribution) - state is made up of individuals and organs, so need to show that individuals or organs are attributed to the state (look at ARSIWA Art 4-11, and begin with 4 then move down (if one of the earlier elements are met, then you stop there))
2. Is act or omission a violation of international law (breach) - look at if it violated sources of international law such as treaties, CIL, GPL, etc.
If above two are met, then check thirdly - are there any circumstances precluding wrongfulness (to help the state out)? Irrelevance of domestic (internal) law here.

Question 49

Case that shows the structure to use for attribution of elements

Answer 49

Gencode, p. 683

Question 50

ARSIWA articles that show attribution

Answer 50

Art 4 - 11 ARSIWA

Question 51

ARSIWA articles that show existence of a breach

Answer 51

Art 12 - 15 ARSIWA

Question 52

Difference between retorsion and countermeasure

Answer 52

Retorsion is a lawful measures states can take in response to an internationally wrongful act (e.g., calling diplomats persona non grata). A countermeasures is in itself a violation of international law however it is justified due to the prior internationally wrongful act (Art 51 ARSIWA: must be a proportional countermeasure).

Question 53

How to assess countermeasure as a response to an internationally wrongful act

Answer 53

Forr countermeasures, first go through if it is an internationally wrongful act (if a state can be held responsible) – if it is not an internationally wrongful act, then it cannot be a countermeasure, then you never get to countermeasures. But if it is an internationally wrongful act, then look at circumstances precluding wrongfulness, then we can look at countermeasures (need to be in response to an internationally wrongful act). Also the action of a state in response is not a countermeasure if, e.g., A does something that is not an internationally wrongful act, and B takes a countermeasure - then the countermeasure is wrongful since there was no internationally wrongful act in the first place.
Keep in mind: a countermeasure is already an internationally wrongful act, so you have to do the process for determining a state action as an internationally wrongful act, then circumstances precluding wrongfulness, then to countermeasures again.

Question 54

WHO nuclear weapons opinion

Answer 54

Para 25: IOs do not have a general competence but rather are governed by principle of specialty: meaning they are invested by the states which create them with powers, the limits of which are a function of the common interests whose promotion those states entrust to them.
“The powers conferred on international organizations are normally the subject of an express statement in their constituent instruments.”
“Nevertheless, the necessities of international life may point to the need for organizations, in order to achieve their objectives, to possess subsidiary powers which are not expressly provided for in the basic instruments which govern their activities. It is generally accepted that international organizations can exercise such powers, known as ‘implied’ powers.”
“In the opinion of the Court, to ascribe to the WHO the competence to address the legality of the use of nuclear weapons - even in view of their health and environmental effects - would be tantamount to disregarding the principle of specialty; for such competence could not be deemed a necessary implication of the Constitution of the Organization in the light of the purposes assigned to it by its member States.”

Question 55

Illegality of nuclear weapons opinion

Answer 55

Para 70: The Court notes that General Assembly resolutions, even if they are not binding, may sometimes have normative value. They can, in certain circumstances, provide evidence important for establishing the existence of a rule or the emergence of an opinio juris.”
“To establish whether this is true of a given General Assembly resolution, it is necessary to look at its content and the conditions of its adoption; it is also necessary to see whether an opinio juris exists as to its normative character. Or a series of resolutions may show the gradual evolution of the opinio juris required for the establishment of a new rule.”

Question 56

Nicaragua v USA

Answer 56

Para 115: Established that to attribute action of the contras to the US, Nicaragua would have to show that the US had effective control (very strict and basically encompassing everything the contras did)
Thus, actions of the contras not imputable to the state.

Question 57

Diplomatic Staff Case

Answer 57

Para 58: “No suggestion has been made that the militants, when they executed their attack on the Embassy, had any form of official status as recognized “agents” or organs of the Iranian State. […] Their conduct might be considered as itself directly imputable to the Iranian State only if it were established that, in fact, on the occasion in question the militants acted on behalf on [sic] the State, having been charged by some competent organ of the Iranian State to carry out a specific operation.”
Meaning that cannot attribute instructions/directions to Iran in this way.
Para 73: [However] the seal of official government approval was finally set on this situation by a decree issued on 17 November 1979 by the Ayatollah Khomeini. His decree began with the assertion that the American Embassy was “a centre of espionage and conspiracy” and that “those people who hatched plots against our Islamic movement in that place do not enjoy international diplomatic respect”. 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. “
Meaning that the conduct was adopted by Iran and thus Iran engaged in an internationally wrongful act.

Question 58

ICTY Tadic

Answer 58

Question: whether acts of BS government/army could be attributed to Serbia and Montenegro
Answer: said we think Nicaragua case was wrong b/c there are two standards of control - one for organized groups and private individuals, and one for organized armed groups. For the latter, you don’t need to show effective control but rather overall control. Overall control means that the foreign state is involved in the planning, coordination, and organization of attacks of the private armed groupThus considered actions attributable to Serbia and thus wasn’t a civil war but rather international armed conflict
However, this is not the standard as it was overturned in the 2007 Genocide case

Question 59

Genocide case

Answer 59

Referred to Art 4 and 8 ARSIWA
Court discusses whether certain BS armed groups can be considered organs of Serbia - rejects this as it says private armed group has to be completely dependent on foreign state if action are to be attributable (effective control). Said both BS army and private groups could not be considered an organ of Serbia and Montenegro
Discussed Art 8 and rejected ICTY and reaffirmed Nicaragua case and says have to prove that foreign state effectively controlled the group
Eventual conclusion in this case was that actions of BS government and army not attributable to Serbia and Montenegro. But did say Serbia and Montenegro failed to prevent genocide in Bosnia
Thus, goes back to effective control as the only parameter for attribution to state conduct.

Question 60

Reparations

Answer 60

 “The Charter does not expressly confer upon the Organization the capacity to include, in its claim for reparation, damage caused to the victim or to persons entitled through him. (…) Under international law, the Organization must be deemed to have those powers which, though not expressly provided in the Charter, are conferred upon it by necessary implication as being essential to the performance of its duties.”
Hence, confirms that international organizations can have implied powers if they are essential to the performance of the organization’s duties.

Question 61

Gabcikovo-Nagymaros

Answer 61

Talks about conditions to invoke Art 25 ARSIWA:
51. The Court considers, first of all, that the state of necessity is a ground recognized by customary international law for precluding the wrongfulness of an act not in conformity with an international obliga- tion. It observes moreover that such ground for precluding wrongfulness can only be accepted on an exceptional basis. The International Law Commission was of the same opinion when it explained that it had opted for a negative form of words in Article 33 of its Draft “in order to show, by this formal means also, that the case of invocation of a state of necessity as a justification must be considered as really constituting an exception - and one even more rarely admissible than is the case with the other circumstances precluding wrongfulness . . .” (ibid, p. 51, para. 40). Thus, according to the Commission, the state of necessity can only be invoked under certain strictly defined conditions which must be cumula- tively satisfied; and the State concerned is not the sole judge of whether those conditions have been met.
52. In the present case, the following basic conditions set forth in Draft Article 33 are relevant: it must have been occasioned by an “essential interest” of the State which is the author of the act conflicting with one of its international obligations; that interest must have been threatened by a “grave and imminent peril”; the act being challenged must have been the “only means” of safeguarding that interest; that act must not have “seriously impair[ed] an essential interest” of the State towards which the obligation existed; and the State which is the author of that act must not have “contributed to the occurrence of the state of necessity”. Those conditions reflect customary international law.
The Court will now endeavour to ascertain whether those conditions had been met at the time of the suspension and abandonment, by Hun- gary, of the works that it was to carry out in accordance with the 1977 Treaty.