Terrorism Lecture 1

Question 1

What are some key defining elements of international law?

Answer 1

• International law is defined as the relationships between states; it is a state based system
  -Decentralised structure

Question 2

What are the Westphalia peace treaties?

Answer 2

From 1648, this was the moment when we shifted from a medieval system to a modern system, based on the cooperation between states. The model we have now is called the Westphalian model, based on hierarchies and sovereignties.

Question 3

What are the relationships of states with their people, and with other states, in terms of hierarchies?

Answer 3

Within states, there is a hierarchical relationship between the state and its people. The state itself has sovereignty to make laws, adjudicate them etc. It is a top down/vertical relationship.
Between states, the relationship is bilateral, meaning states are equal sovereign entities, and do not have the right to interfere with/govern internal sovereignties of an individual state that is not their own.

Question 4

What organisation oversees external sovereignty between states?

Answer 4

The United Nations. The General Assembly, within the UN, has representatives from every state, who all have an equal vote. In the Security Council, there are 5 member states who have permanent status (and veto power), China, France, Russia, United Kingdom, and United States, and there are 10 states who rotate according to General Assembly elections, and change every 2 years.

Question 5

How do states make laws?

Answer 5

Through treaties. These laws only count if the states consent. If a state does not consent, the law does not apply to them. This maintains the principles of internal and external sovereignty

Question 6

What does adjudication mean in the context of international law?

Answer 6

The formal resolution of disputes between states, organisations, or individuals by an impartial judicial body, such as the International Court of Justice (ICJ) or other tribunals. It involves applying international legal principles to reach binding decisions. Unlike diplomatic negotiation or mediation, adjudication relies on legal arguments and evidence, and the ruling is enforceable under international law.

Question 7

How do states enforce laws in international law?

Answer 7

States have the burden of enforcing laws on each other, since their is no police force etc. This can be done through state pressures, the ICC, sanctions etc.

Question 8

What are states obliged to do when they sign a treaty?

Answer 8

• Enact and enforce the law according to the treaty
• Exercise jurisdiction against internal (or external, in applicable cases) breaches of the law
• If you consent to a treaty and don’t adhere to/enforce it, you can be deemed a rogue statue, which can affect how other states interact with you, and your sovereignty can be questioned.

Question 9

Is there a consensus on the definition of terrorism?

Answer 9

No- there are regional and international treaties on it, but no widely agreed-upon definition. Terrorist conventions will define what specific actions are criminal under terrorism, but will generally go no further to make an all-encompassing definition. “One man’s terrorist is another’s freedom fighter”. There is further controversy about whether the definition should include state terrorism (dictatorial states can commit terrorism). Religious, cultural and historical factors further muddy the waters.

Question 10

What are some key facts about treaties?

Answer 10

• They are the main source of international law
• They are created and interpreted
• States can make reservations to them
• Treaties end if a situation changes
• The Vienna convention on the law of treaties is a treaty on treaties

Question 11

Why is terrorism so hard to define?

Answer 11

• Political, religious, ideological and social factors: different motivations and objectives, which conflict across regions, make it hard to ‘pin down’ an all-encompassing, general definition (one man’s terrorist is another man’s freedom fighter)
• Context and perception: the distinction between terrorism and other forms of violence/crimes is arguable
• State actors v. non-state actors: the concept of terrorism is often associated with non-state actors, however states have been accused of terrorism too, further complicating the definition
• Evolving nature of terrorism: the development of tactics (such as cyber-terrorism and lone-wolf attacks) make it hard to have a relevant definition

Question 12

What is the Vienna Convention on the law of Treaties?

Answer 12

The guiding treaty to govern treaties. It reflects customary international law, covering treaty formation, interpretation, reservations, obligations, and conditions for termination or suspension. Key principles codified include:

Good Faith: Treaties are binding and should be performed in good faith.

Material Breach: A breach can lead to suspension or termination of treaty obligations.

Fundamental Change of Circumstances: If there is a significant change, this can affect the treaty’s validity.

Question 13

How do states adopt new obligations in international treaties?

Answer 13

• States meet
• They negotiate on a problem
• They ‘adopt’ the formal approval of a treaty’s final draft
• They sign
• They ratify
• The treaty enters into force

Question 14

What does ratification mean?

Answer 14

If a government signs a treaty (as representatives of the state) the internal/state parliament must accept it. Ratification is the consent to be bound. If there is a dictatorship without parliament, the dictator just needs to accept once. The signing is the finishing of the negotiations process, and is somewhat of a symbolic act. Ratification sets consent into stone. The consent of the government is often dependent on the parliament.

Question 15

What does article 18 of the Vienna convention (1969) say?

Answer 15

Article 18 states that even when a treaty has been signed and not ratified, you cannot do something that goes against the purpose of the treaty, despite not ratifying it and it is not formally enforced yet. If this occurs, other state’s must hold them accountable.

Question 16

What is the term for a state that has expressed their consent?

Answer 16

Party!

Question 17

What is a contracting state?

Answer 17

A state which has consented to be bound by the treaty, whether or not the treaty has entered into force.

Question 18

To what extent is a state’s sovereignty limited if they are part of an international treaty?

Answer 18

It is not limited, because they consented to be bound, unless specifically indicated in the treaty. They consent to sign up to obligations, and in this way they no longer have the sovereign right to not follow through on their obligation(s).

Question 19

What is a reservation?

Answer 19

When a state signs up to be part of a treaty, they can make a reservation, meaning that they don’t consent to the entirety of the treaty.

A reservation is a unilateral statement (i.e. made by one state alone, not in agreement with other states) made by a state when signing, ratifying, accepting, approving, or acceding to a treaty, aiming to exclude or modify the legal effect of certain treaty provisions for that state. Reservations allow states to modify treaty obligations while joining multilateral treaties. They must not undermine the treaty’s core objectives and are regulated by the VCLT.

States can make reservations to specific treaty provisions.

Consent to treaties does not negate sovereignty but requires adherence to agreed obligations.

Reservations are usually allowed unless a treaty explicitly prohibits them or they conflict with the treaty’s object and purpose. In cases of multilateral treaties with few parties, where complete application of the treaty is essential, reservations may be prohibited to maintain the integrity of the agreement.

General Rule: If another party objects to a reservation, it cannot be invoked in relations between the reserving and objecting parties. However, if the objecting party remains silent, the reservation is valid between them.

Question 20

How is the decentralised structure of international law characterised?

Answer 20

• Law making through treaties
• Adjudication
• Enforcement is through state responsibilities

Question 21

What is a treaty?

Answer 21

A formal agreement between two or more sovereign states or international organisations, governed by international law. Treaties can be bilateral (between two parties) or multilateral (involving multiple parties).

Question 22

What is a convention?

Answer 22

A specific type of treaty that typically refers to a multilateral agreement, often established to regulate specific issues or areas of international concern. Conventions usually have broader participation and are often open for signature by multiple states.

Question 23

What are arbitration proceedings?

Answer 23

A method of resolving disputes outside of traditional court systems, where parties involved agree to submit their conflict to one or more arbitrators. Arbitrators are neutral third parties who review evidence and make a binding decision (arbitral award).

Question 24

What is lex arbitri?

Answer 24

Applicable law. Refers to the law that governs arbitration proceedings.

Question 25

What is jus cogens?

Answer 25

Also known as peremptory norms, and non-derogable rights. Established in Articles 53 and 64 of the VCLT (1969), as non-derogable (never acceptable to breach, even under treaties), universally-recognised obligations that all states must uphold and protect. Jus Cogens are considered an example of customary international law, because there is no strict, all-encompassing codified list of them (since situations change). However, there are some widely accepted jus cogens norms:

Prohibition of genocide

Prohibition of torture

Prohibition of slavery and the slave trade

Prohibition of aggression and unlawful use of force

Prohibition of crimes against humanity

Prohibition of racial discrimination and apartheid

Prohibition of piracy

Prohibition of war crimes

Question 26

What do Articles 53 and 64 VCLT (1969) refer to?

Answer 26

Peremptory norms/jus cogens.

Art. 53 says that a treaty becomes void if it conflicts with non-derogable rights (jus cogens)

Art. 64 says that if a new peremptory norm emerges, any existing treaty is void if it conflicts with the new norm.

Question 27

What are some examples of jus cogens norms?

Answer 27

Prohibition of genocide

Prohibition of torture

Prohibition of slavery and the slave trade

Prohibition of aggression and unlawful use of force

Prohibition of crimes against humanity

Prohibition of racial discrimination and apartheid

Prohibition of piracy

Prohibition of war crimes

Question 28

How are treaties interpreted?

Answer 28

Treaty interpretation is guided by the VCLT, which emphasizes the ordinary meaning of terms, the context, and the treaty’s purpose. Various methods, including objective, subjective, and teleological approaches, are employed to clarify treaty provisions.

Treaty interpretation is essential in international law to determine the precise meaning of treaty provisions. The VCLT (1969) provides guiding principles (Articles 31–33) to assist in the interpretation process, which is considered a judicial function aimed at clarifying, not changing, treaty terms.

Question 29

What are the primary methods of treaty interpretation, and where are they described?

Answer 29

Objective (Textual) Approach: Focuses on the actual text of the treaty, emphasising the ordinary meaning of the words used.

Subjective (Intentional) Approach: Seeks to understand the parties’ intentions behind the treaty, especially in cases of ambiguity.

Teleological (Purposive) Approach: Focuses on the treaty’s object and purpose to determine the meaning of provisions.

Article 31 VCLT (1969) reflects all three approaches, stating that treaties should be interpreted in good faith, with attention to the ordinary meaning of terms, their context, and the treaty’s object and purpose. This is considered customary international law.

Question 30

What does article 31 VCLT (1969) say?

Answer 30

States that all treaties should be interpreted in good faith, with attention to objective, subjective and teleological approaches. This is considered customary international law.

Question 31

What is the objective (textual) approach to treaty interpretation?

Answer 31

Focuses on the actual text of the treaty, emphasising the ordinary meaning of the words used.

Question 32

What is the subjective (intentional) approach to treaty interpretation?

Answer 32

Seeks to understand the parties’ intentions behind the treaty, especially in cases of ambiguity.

Question 33

What is the teleological (purposive) approach to treaty interpretation?

Answer 33

Focuses on the treaty’s object and purpose to determine the meaning of provisions.

Question 34

What is a reservation to a treaty?

Answer 34

Reservations are unilateral statements by states that exclude or modify the legal effect of certain provisions of a treaty when agreeing to be bound by it. These allow states to become parties to multilateral treaties while addressing concerns about specific provisions. Reservations are governed by the Vienna Convention on the Law of Treaties (VCLT), Articles 19-23. See below for more.

Question 35

Which articles of the VCLT (1969) govern reservations?

Answer 35

Articles 19-23

Question 36

How can treaties end?

Answer 36

• Invalidity, on relative or absolute grounds, or due to a breach of jus cogens
• Termination
• Suspension, for example due to a material breach, inter se suspension, new agreement on same subject matter, supervening impossibility of performance, or fundamental change of circumstances

Question 37

What ways can a treaty end due to invalidity?

Answer 37

On relative grounds: These grounds allow a party to challenge the treaty’s validity with respect to itself and the offending party, but the treaty remains valid between other parties. Essentially, the treaty is voidable only between the invoking and offending parties. Reasons for relative invalidity can be violation of internal law (e.g. constitutional procedures), lack of authority, error, fraud, or corruption.

On absolute grounds: These render the treaty void ab initio (from the beginning), meaning it never had legal effect, and all parties are released from obligations under the treaty. Reasons for absolute invalidity can be coercion of a representative (when signing), use of force or threats (when signing), or peace treaties after military defeat (a party is defeated and then forced to sign)

Treaty is in breach of jus cogens (peremptory norms): in this case, the treaty is automatically void, as specified in Article 53 VCLT. If a new jus cogens norm emerges, any treaty conflicting with it is automatically terminated, regardless of consent.

Question 38

How can a treaty end on relative grounds?

Answer 38

These grounds allow a party to challenge the treaty’s validity with respect to itself and the offending party, but the treaty remains valid between other parties. Essentially, the treaty is voidable only between the invoking and offending parties. Reasons for relative invalidity can be violation of internal law (e.g. constitutional procedures), lack of authority, error, fraud, or corruption.

Question 39

How can a treaty end on absolute grounds?

Answer 39

These render the treaty void ab initio (from the beginning), meaning it never had legal effect, and all parties are released from obligations under the treaty. Reasons for absolute invalidity can be coercion of a representative (when signing), use of force or threats (when signing), or peace treaties after military defeat (a party is defeated and then forced to sign)

Question 40

How can a treaty end when in breach of Article 53/64 VCLT (1969)?

Answer 40

Treaty is in breach of jus cogens (peremptory norms). If a new jus cogens norm emerges, any treaty conflicting with it is automatically terminated, regardless of consent.

Question 41

What is inter se suspension of a treaty?

Answer 41

Inter se suspension of a treaty refers to the suspension of a treaty or certain provisions of a treaty between the parties to the treaty, but not with respect to third parties.

Some parties may suspend obligations without affecting others, provided the treaty allows for such suspension and does not conflict with its purpose. Can be grounds for the end of a treaty.

Question 42

What is a material breach of a treaty?

Answer 42

If a party materially breaches the treaty, other parties may suspend or terminate their obligations, as per the principle of reciprocity (“one has no obligation if the other does not perform”). Material breach includes repudiation of a treaty or violation of provisions essential to the treaty’s objectives. Some treaties, like humanitarian or human rights treaties, are exempt from termination due to material breach.

Question 43

What is the supervening impossibility of performance (of the contents of a treaty)?

Answer 43

If performance becomes permanently impossible (e.g., a river dries up or a species goes extinct), a party can withdraw from or terminate the treaty. This is rare and applies only to extreme circumstances beyond the party’s control.

Question 44

How is customary law established?

Answer 44

Customary law is established through:

General practice: Consistency, duration, and generality of state practices. Essentially actus reus (objective element), but formally known as the material element, usus.

Opinio iuris: The belief that states are acting out of a legal obligation. Essentially mens rea (subjective element), but formally known as the subjective element, opinio juris.

General customary law is binding on all states, regardless of consent, unless a state is a persistent objector.

Art. 38 ICJ Statute (1945) defines customary international law in this way.

Question 45

What is opinio juris?

Answer 45

The belief that states are acting out of a legal obligation. Essentially mens rea (subjective element). One of the requirements for international customary law

Question 46

How can states be exempt from international customary law?

Answer 46

Persistent objection: A state can avoid being bound by a new customary rule if it continuously and explicitly objects to it while it is forming

Subsequent objection: A state that accepted an existing rule may later object to any modifications of that rule

Question 47

What does article 38 of the ICJ statute say?

Answer 47

It says that treaties, customary international law and general principles of law (e.g. pacta sunt servanda) are considered equal in their capacity to generate legal norms.
It names subsidiary/secondary means for determining rules such as judicial decisions and teachings of qualified scholars.

However, treaties are often seen as more specific (lex specialis), compared to customary law, meaning that treaty obligations can take precedence in specific cases. Additionally, new customary rules may emerge that modify or supplement existing treaty frameworks.

While no explicit hierarchy exists between the primary sources (treaties, customary law, general principles), there is a hierarchy when considering jus cogens norms (peremptory norms). These norms take precedence over all other treaties and agreements, and any treaty conflicting with them is considered void and terminated, as specified in articles 53 and 64 of the VCLT (1969).

Question 48

What is lex specialis?

Answer 48

Partially referred to in Art. 38 of the ICJ statute, meaning that a specific law overrides a general law.

Question 49

What is lex posterior?

Answer 49

When two laws or legal norms conflict, the more recent law (lex posterior) takes precedence over the older law (lex anterior).

Question 50

What are the primary sources of international law, and where are they named?

Answer 50

• International treaties and conventions
• International custom(ary law)
• General principles of law- fundamental principles such as good faith, pacta sunt servanda, equity - different to jus cogens! Modern interpretation requires principles to be found across a wide range of legal systems. They can fill gaps where no pre-existing laws yet exist.
  They are named in Art. 38 ICJ Statute (1945)

Question 51

What are the secondary/subsidiary sources of international law, and where are they named?

Answer 51

Subsidiary means for determining rules (judicial decisions and the teachings of qualified scholars), named in Art. 38 ICJ Statute (1945)

Question 52

What is a state-based system within international law?

Answer 52

The international legal order is primarily composed of sovereign states, which are the main actors creating, enforcing, and complying with international law.

Question 53

What is internal sovereignty within international law?

Answer 53

Refers to a state’s authority to govern itself without interference from other states or external forces.

Question 54

What is external sovereignty in international law?

Answer 54

Refers to the state’s independence and equality in the international community, as well as its freedom to engage in international relations without external coercion.

Question 55

What is hierarchy within international law?

Answer 55

Unlike domestic legal systems, international law lacks a strict hierarchy, with no central authority to enforce rules universally.

Question 56

What is pacta sunt servanda?

Answer 56

It is outlined in Art. 26 VCLT (1969), and Art. 2(2) UN Charter (1945). Pacta sunt servanda is a fundamental principle in international law stating that once a state consents to a treaty, it is obligated to fulfill its commitments in good faith. Parties are expected to honour their commitments and cannot simply disregard them at will.

Question 57

What is the ratification process?

Answer 57

Ratification is the formal acceptance of a treaty by a state’s parliament, which follows the signing of the treaty. Key points include:

Signing indicates intent to be bound, while ratification solidifies consent.

Article 18 of the VCLT prohibits actions against the purpose of a treaty even if not ratified.

Question 58

What does Art. 18 VCLT (1945) say?

Answer 58

Prohibits actions against the object and purpose of a treaty, even if not yet ratified

Question 59

What are acceptance and approval of a treaty?

Answer 59

Acceptance and approval are alternative procedures to ratification that bind a state to a treaty without the need for legislative approval. These methods are often used when the executive branch can consent without parliamentary ratification.

Question 60

What is accession of a treaty?

Answer 60

Another alternative to ratification, accession allows a state to become a party to a treaty it did not originally sign. This procedure is used when a treaty is already in force, enabling states to join treaties post-adoption and entry into force.

Question 61

What is a ‘soft’ objection?

Answer 61

If a party objects but doesn’t challenge the treaty’s entry into force, the reservation does not apply to the provisions in question between the two states. This maintains the treaty’s overall validity while excluding the contested provisions.

A soft objection refers to an objection made by a state that does not prevent the treaty from entering into force between the objecting state and the state making the reservation.

Soft and hard objections are both responses to reservations made to treaties.

Question 62

What is a ‘hard’ objection?

Answer 62

A hard objection refers to an objection that results in the treaty not entering into force between the objecting state and the state making the reservation.

In cases where the reservation is deemed incompatible with the treaty’s purpose (e.g., human rights treaties), some parties may refuse to enter into treaty relations with the reserving state. This often arises in treaties that aim for universal application, such as those focused on human rights or environmental protection.

Both hard and soft objections are responses to a state’s reservation(s) to a treaty provision.

Question 63

What is an amendment of a treaty?

Answer 63

This formal procedure requires the consent of all parties to the treaty and follows the same formalities as the original treaty. Proposals to amend the treaty must be circulated to all parties, and they can choose to participate in the negotiations or opt out. Some treaties, like the UN Charter, specify a particular procedure for amendments, such as requiring a two-thirds majority and the approval of all permanent Security Council members.

Question 64

What is a modification of a treaty?

Answer 64

A bilateral or multilateral agreement between certain parties to a treaty that alters the treaty’s application only among those parties, without affecting the rights or obligations of other states.

Unlike amendments, modification allows for changes to be made by only some parties to the treaty (not all). These modifications must not be prohibited by the treaty, must not interfere with other parties’ rights under the treaty, and must not contradict the treaty’s object and purpose. The modified provisions are only binding on the parties that agreed to them, not the other parties who remain bound by the original terms.

Question 65

What is a negotiating state?

Answer 65

A state that participated in drafting and adopting the treaty text.

Question 66

What is a contracting state?

Answer 66

A state that has consented to be bound by the treaty, regardless of whether it has entered into force.

Question 67

What is a third state?

Answer 67

A state that is not a party to the treaty. A treaty does not create obligations for third states without their consent. Article 35 VCLT establishes that third parties may become bound by treaty provisions only if the treaty explicitly envisages their consent, and that consent must be written. Under Article 38 VCLT, if a treaty’s provisions become customary international law, then they can bind states, even without their direct consent. Article 36 VCLT allows third parties to benefit from rights under a treaty, even without their written consent, unless stated otherwise in the treaty. However, rights granted to third states can only be revoked or modified with the consent of the third state, unless the treaty says otherwise.

Question 68

What is sovereign equality?

Answer 68

Sovereign equality encompasses two notions: equality and sovereignty. Equality means that all states, regardless of size or power, have equal rights and obligations. Sovereignty refers to a state’s freedom from external commands and its exclusive power to exercise authority over its territory and population without being undermined by other states.

Question 69

What is decentralised authority?

Answer 69

A characteristic of international law, which recognises multiple sovereign entities and regulates relations among them without a supreme legislative authority.

Question 70

What is centralised authority?

Answer 70

Domestic law typically has a single recognised sovereign authority.

Question 71

What is express consent?

Answer 71

Consent through a treaty

Question 72

What is tacit consent?

Answer 72

Consent through customary practices

Question 73

What do immunities do?

Answer 73

Immunities seek to prevent foreign courts from exercising jurisdiction regarding the conduct of another State, its agents, officials, or diplomatic representatives, as well as from adjudicating on inter-State disputes without their consent. This always concerns civil proceedings, because you can’t put a state into jail (so can’t be criminal proceedings).

Question 74

What do immunities in international law do?

Answer 74

These doctrines protect state sovereignty by preventing foreign courts from exercising jurisdiction over another state, its agents, or officials. They prevent adjudication of inter-state disputes without consent.

Question 75

What is absolute immunity?

Answer 75

Absolute immunity (also called total immunity) means that states and their officials cannot be subject to the jurisdiction of foreign courts under any circumstances. This approach is rooted in the classical principle of sovereign equality of states. Sovereigns and other “higher ups” are completely immune from foreign jurisdiction. Evidence is required to support immunity claims.

Question 76

What types of restrictive state immunity are there?

Answer 76

• Acta jure imperii
• Acta jure gestionis

Question 77

What is restrictive immunity?

Answer 77

Restrictive immunity limits immunity to acts performed in the exercise of sovereign functions.

Acta jure imperii: A sovereign act, for which the state has full immunity, and cannot be sued in front of a domestic court. Acts defined under this are things only a state can do, for example mobilising an army, foreign policy, police powers, justice administration. Linked to restrictive immunity but not inherently meaning absolute immunity.

Acta jure gestionis: Commercial/non-sovereign/private acts done by the state, such as buying computers, for which the state is not immune against lawsuits for. Commercial transactions, employment contracts, personal injuries, property damage, intellectual property, participation in companies, and non-governmental use of state-operated ships.

How do you distinguish between acta jure imperii and acta jure gestionis? The nature and purpose of the act must be considered.

Question 78

What is acta jure imperii?

Answer 78

A sovereign act, for which the state has full immunity, and cannot be sued in front of a domestic court- but it can be sued for internationally if they violate norms like jus cogens or treaties. Acts defined under this are things only a state can do, for example mobilising an army, foreign policy, police powers, justice administration. Linked to restrictive immunity but not inherently meaning absolute immunity.

Question 79

What is acta jure gestionis?

Answer 79

Commercial/non-sovereign/private acts done by the state, such as buying computers, for which the state is not immune against lawsuits for. Commercial transactions, employment contracts, personal injuries, property damage, intellectual property, participation in companies, and non-governmental use of state-operated ships.

Question 80

How do you distinguish between acta jure imperii and acta jure gestionis?

Answer 80

The nature and purpose of the act must be considered.

Acta jure imperii: A sovereign act, for which the state has full immunity, and cannot be sued in front of a domestic court. Acts defined under this are things only a state can do, for example mobilising an army, foreign policy, police powers, justice administration. Linked to restrictive immunity but not inherently meaning absolute immunity.

Acta jure gestionis: Commercial/non-sovereign/private acts done by the state, such as buying computers, for which the state is not immune against lawsuits for. Commercial transactions, employment contracts, personal injuries, property damage, intellectual property, participation in companies, and non-governmental use of state-operated ships.

Question 81

What kinds of immunities are available to state officials?

Answer 81

Immunity Ratione Personae: Protects high-ranking officials from legal proceedings that could interfere with their duties. Applies to high-ranking officials like heads of State, heads of government, foreign ministers, and diplomats. It extends to both their official and private acts. The justification for such immunity is that these officials’ functions are so integral to the State that any legal proceedings against them could interfere with their duties. This immunity includes inviolability, freedom from arrest or detention, and absolute immunity from criminal jurisdiction, and lapses once the official leaves office.

Immunity Ratione Materiae: Covers acts performed in an official capacity, continuing even after leaving office. Unlike immunity ratione personae, which is tied to the individual, this immunity is based on the nature of the acts and is linked to the State’s sovereign functions. Like other immunities, it can be waived by the competent authorities of the sending State.

Question 82

What is immunity ratione personae?

Answer 82

Protects high-ranking officials from legal proceedings that could interfere with their duties. Applies to high-ranking officials like heads of State, heads of government, foreign ministers, and diplomats. It extends to both their official and private acts. The justification for such immunity is that these officials’ functions are so integral to the State that any legal proceedings against them could interfere with their duties. This immunity includes inviolability, freedom from arrest or detention, and absolute immunity from criminal jurisdiction, and lapses once the official leaves office.

Question 83

What is immunity ratione materiae?

Answer 83

Covers acts performed in an official capacity, continuing even after leaving office. Unlike immunity ratione personae, which is tied to the individual, this immunity is based on the nature of the acts and is linked to the State’s sovereign functions. Like other immunities, it can be waived by the competent authorities of the sending State.

Question 84

What is the difference between consular and diplomatic immunity?

Answer 84

Diplomatic Immunity: Governed by the 1961 Vienna Convention, diplomats enjoy inviolability and protection, with exceptions for private matters. Diplomats enjoy inviolability of diplomatic premises (legal protection granted to buildings and property of diplomatic missions, e.g. embassies, without consent), and diplomatic bags (special form of protected communication used by diplomatic missions to transport documents and materials without interception).

Consular Immunity: Consuls have limited immunity compared to diplomats and are protected only for official duties. Consuls focus on administrative and technical matters rather than political relations, like diplomats. Consuls can be arrested for serious crimes. Consular immunity is ratione materiae, i.e. it only applies to actions performed within official duties.

Question 85

What is responsibility in international law?

Answer 85

Refers to the attribution of fault for breaching international legal obligations, requiring reparations when obligations are not met. The 2001 Articles on the Responsibility of States for Internationally Wrongful Acts (ARSIWA) provide a framework for understanding state responsibility. These Articles distinguish between primary rules (substantive and procedural obligations binding States, like prohibiting the use of force or respecting diplomatic immunity) and secondary rules (rules governing the consequences of breach, including responsibility). Responsibility falls within the secondary rules category.

International responsibility arises when a state commits an internationally wrongful act, defined as an act or omission that is both attributable to the state, and breaches an international obligation. This principle is grounded in customary international law.

Question 86

Under what circumstances does international responsibility arise?

Answer 86

International responsibility arises when a state commits an internationally wrongful act, defined as an act or omission that is both attributable to the state, and breaches an international obligation. This principle is grounded in customary international law.

Question 87

What is ARSIWA (2001)

Answer 87

Articles on Responsibility of States for Internationally Wrongful Acts (2001). ARSIWA are secondary rules (how to hold a State responsible) because they tell us what the procedures are in case States are obligating the convention- the conventions being primary rules. Entails procedures and processes to hold a state responsible. ARSIWA is not derived from a specific convention- rather, it codifies general principles of state responsibility under international law, which are applicable to multiple treaties, conventions and areas of law.

Question 88

What are the key elements of State responsibility, and which articles apply?

Answer 88

Key Elements of State Responsibility under ARSIWA:

1. Attribution: Responsibility arises when an act can be attributed to a state, which includes actions by state organs or agents. (Art. 4 and Art. 8)
2. Breach of International Obligation: Occurs when states fail to adhere to international commitments, i.e. breaches an obligation. (Art. 12)

(3.) Situation Precluding Wrongfulness: Considers if there are legitimate reasons for a violation (e.g., crises affecting state operations). These can excuse acts that would otherwise be wrongful, thus preventing the state from being held internationally wrongful. These defences are exceptions, but do not nullify the obligation itself, and they do not apply to peremptory norms (jus cogens). When the justification ends, the state must stop the wrongful act. (Art. 25 and 26)

Question 89

How do Art. 8 ARSIWA (2001) and the Nicaragua case (1986) intersect?

Answer 89

They both address state responsibility in terms of individuals or groups acting under effective control or instruction of the state. The Nicaragua case found that the US could not held responsible for the actions in Nicaragua because there was no effective control (and therefore there was no armed attack which the US was responsible for), and this is reflected in the later Art. 8 of ARSIWA, which states that actions of non-state actors can only be attributed to the state when the actions are specifically directed or controlled by the state.

Question 90

Under what articles can states invoke responsibility?

Answer 90

Article 42 of ARSIWA: An injured (or “specially affected”) state can invoke responsibility if the obligation breached is owed to it or to a group of states.

Article 48 of ARSIWA: Any state can invoke responsibility for violations of obligations owed to the international community.

Question 91

Where can states invoke state responsibility?

Answer 91

States can invoke breaches at the ICJ, with jurisdiction requiring consent through treaties or special agreements. The ICJ’s rulings serve as authoritative interpretations but are binding only on the states involved.

Question 92

What are obligations erga omnes?

Answer 92

Not only are there some obligations (e.g. jus cogens) that apply to all states to uphold, but equally if one of these obligations is breached, any state can invoke responsibility for the breach. This is outlined in Article 48 of ARSIWA, which also says that any state can invoke responsibility if the obligation breached is owed to a group of states for collective interest.

Some obligations, such jus cogens norms, apply to the international community as a whole. Not all obligations erga omnes are jus cogens, but all jus cogens are obligations erga omnes! With violations of jus cogens, there is no situation precluding wrongfulness. They are so fundamental that all States in the international community have an interest in upholding them. Even if a State is not directly an injured State, if jus cogens is violated, any State can invoke State responsibility, because the international community is affected collectively by such grave violations.

Question 93

What does Art. 48 ARSIWA (2001) state?

Answer 93

Any state can invoke responsibility for violations of obligations owed to the international community (obligations erga omnes)

Question 94

Who’s actions can be attributed to a state?

Answer 94

Actions by states or state organs or agents (de jure or de facto) are attributable to the state. Private actors can also be attributed to the state if they operate under state control or endorsement (Nicaragua case). These actions must be a breach of international norms (Art. 12 ARSIWA, 2001), directly attributable to the state (Art. 4 and 8 ARSIWA, 2001), and there should not be any situations precluding wrongfulness which would excuse the actions (Art. 25 and 26 ARSIWA, 2001)

Question 95

What is effective control?

Answer 95

Defined by Art. 8 ARSIWA (2001): “The conduct of a person or group of persons shall be considered an act of a State under international law 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.”
In this way, funding, training etc., are not defined as effective control- there must be state control or command.
The ICJ Nicaragua case found that effective control can be proven through:
1. The state directed or controlled specific wrongful acts; and
2. The acts would not have occurred without the state’s instructions or orders.

Art. 11 ARSIWA also states that When a state encourages or supports the wrongful actions of a private actor to the extent that it acknowledges these acts as its own, it can still be held responsible (Art. 11 ARSIWA). Adoption requires more than approval; it implies that the state accepts the acts as if they were its own.

Question 96

What does Art. 11 ARISWA (2001) state?

Answer 96

When a state encourages or supports the wrongful actions of a private actor to the extent that it acknowledges these acts as its own, it can still be held responsible. Adoption requires more than approval; it implies that the state accepts the acts as if they were its own.

Question 97

What test did the ICJ Nicaragua case (1986) formulate for effective control?

Answer 97

The ICJ Nicaragua case found that effective control can be proven through:
1. The state directed or controlled specific wrongful acts; and
2. The acts would not have occurred without the state’s instructions or orders.

Question 98

What are organs de jure?

Answer 98

State organs. Art. 4 ARSIWA states that actions by any state organ are attributable to the state, regardless of its hierarchical level. These organs are officially recognised by a state’s international law, and include police officers, military personnel, legislative and judicial bodies and provinces.

Question 99

What are organs de facto?

Answer 99

A concept introduced by the Bosnia and Herzegovina v. Serbia and Montenegro genocide case at the ICJ (2007). These are private actors or entities that may not be formally recognised as state organs (de jure), but whose actions are so closely aligned with the state’s will that they can be treated as state organs in practice. For instance, when a group or individual operates under the complete direction and control of the state, their actions can be attributed to the state.

This can be tied to multiple articles of ARSIWA, including:

Art. 4 ARSIWA (2001), which says that the conduct of a state organ (legislative, executive, judicial, or otherwise) is attributable to the state, regardless of its function or position within the state structure.

Art. 8 ARSIWA (2001), which says that acts of non-state actors or groups can be attributed to a state if they are acting on the instructions of, or under the direction or control of, that state.

Art. 12 ARSIWA (2001), which says that a breach of international obligations occurs when states fail to adhere to international commitments, i.e. they breach their international obligations

Art. 16 ARSIWA (2001), which states that a state is internationally responsible if it provides aid or assistance to another state or actor in committing an internationally wrongful act, provided the assisting state:

1. Knows of the circumstances of the wrongful act; and
2. Intends to facilitate or assist in the act.

Question 100

What does Art. 8 ARSIWA state?

Answer 100

Acts of private individuals or groups are attributable to the state if the group or individual are acting under the direction or control of the state. (Refers to Nicaragua case conclusions)

Question 101

What does Art. 4 ARSIWA state?

Answer 101

Conduct of organs of a State are attributable to the state

Question 102

What does Art. 2 ARSIWA (2001) state?

Answer 102

Elements of an internationally wrongful act of a state. There is an internationally wrongful act when there is a failure to act/act of omission which:
- Is attributable to the state under international law
- Constitutes a breach of an international obligation of the state.

Question 103

What does Art. 12 ARSIWA (2001) state?

Answer 103

A breach of international obligations occurs when states fail to adhere to international commitments, i.e. they breach their international obligations

Question 104

What does Art. 16 ARSIWA (2001) state?

Answer 104

This says that a state is internationally responsible if it provides aid or assistance to another state or actor in committing an internationally wrongful act, provided the assisting state:

1. Knows of the circumstances of the wrongful act; and
2. Intends to facilitate or assist in the act.

Question 105

What are acts ultra vires?

Answer 105

These are acts beyond the authority or contrary to state instructions

Question 106

Can states be held responsible for acts ultra vires?

Answer 106

International law holds states responsible for the acts of their organs or agents, even when those acts are ultra vires (beyond authority) or contrary to state instructions. A state cannot disclaim responsibility by arguing it issued different orders. This principle underscores that the state must control its organs, such as in cases where military or government officials commit unlawful acts.

Question 107

Who can invoke international responsibility?

Answer 107

Only directly injured parties can invoke responsibility, but the ICJ expanded this to include international organizations. (Art. 42 ARSIWA) Non-injured states can invoke responsibility for obligations owed to a group of states or the international community, e.g. breaches of obligations erga omnes, or jus cogens. This is codified in Art. 48 ARSIWA.

Question 108

What does art 48 ARSIWA (2001) say?

Answer 108

That any state can invoke responsibility for violations of obligations owed to the international community, e.g. breaches of obligations erga omnes, or jus cogens.

Question 109

What does Art. 42 ARSIWA say?

Answer 109

An injured (or “specially affected”) state can invoke responsibility if the obligation breached is owed to it or to a group of states it is included in.

Question 110

What is defined as a breach of international obligations?

Answer 110

In international responsibility law, a breach of a legal obligation is necessary to hold a state accountable for a wrongful act. It must be shown that the state violated a binding international obligation. A breach occurs if the obligation was binding at the time of the act, regardless of domestic law.

Both acts of omission and commission can breach obligations, including a state’s duty to prevent its territory from being used to harm others (due diligence).

There is no general requirement of fault (intention or negligence) under international law for a wrongful act to be attributed to a state. Known as “objective responsibility”, this principle holds that wrongful acts may engage state responsibility regardless of fault.

Question 111

What is the due diligence obligation?

Answer 111

The obligation to protect the rights of other states, and not knowingly allow your territory to be used to harm the rights of other states. However, if a state attempts to exercise due diligence (reasonable preventative measures) against the wrongful actions of private actors, a state is not generally held responsible. The standard of due diligence varies based on a state’s available resources and context.

Question 112

What are the defences for state committal of internationally wrongful acts (which are not violations of jus cogens)?

Answer 112

1. Consent
2. Self-defence
3. Countermeasures
4. Force majeure
5. Distress
6. Necessity

Question 113

What is the defence of consent, when a state is accused of an internationally wrongful act?

Answer 113

• A state can permit actions by another state (e.g. using airspace or military assistance) that would otherwise be wrongful.
• Consent must be specific, limited, and should not violate any peremptory norms.
• Applies only between consenting parties, and does not justify harm to non-consenting states

Question 114

What is the defence of self-defence, when a state is accused of an internationally wrongful act?

Answer 114

• Recognised by Art. 21 of ARSIWA and Art. 51 of the UN Charter.
• Allows states to use force if necessary and proportional to the threat (which must be an armed attack).
• Must be justifiable under international humanitarian law; mere self-defence claims do not automatically excuse wrongful acts.

Question 115

What articles recognise the use of self-defence as a justified reaction to a threat, and what provisions do they make as to its use?

Answer 115

• Art. 21 of ARSIWA and Art. 51 of the UN Charter.
• Allows states to use force if necessary and proportional to the threat (which must be an armed attack).
• Must be justifiable under international humanitarian law; mere self-defence claims do not automatically excuse wrongful acts.

Question 116

What is the defence of countermeasures, when a state is accused of an internationally wrongful act?

Answer 116

• Valid when responding to a previous wrongful act by another state
• Conditions: Must address the harm proportionally, be temporary, reversible, and used to induce the wrongdoer to comply with international obligations.

Question 117

What is the defence of force majeure, when a state is accused of an internationally wrongful act?

Answer 117

• Applies when an unavoidable and unforeseen event makes it materially impossible for the state to fulfil its obligations (e.g. natural disasters, military destruction)
• The state must not have caused or ignored the risk of the event

Question 118

What is the defence of distress, when a state is accused of an internationally wrongful act?

Answer 118

• Used when no other option exists to save lives (e.g. aircraft in distress entering foreign airspace)
• Limited to human life protection

Question 119

What is the defence of necessity, when a state is accused of an internationally wrongful act?

Answer 119

• Used when an action is the only way to protect against an essential interest against a grave, imminent threat.
• Strict conditions: Cannot harm other states’ essential interests, cannot contradict specific obligations, and the state cannot have contributed to the crisis

Question 120

What are the consequences of a state committing an internationally wrongful act?

Answer 120

The consequences of an internationally wrongful act revolve around the concept of legal responsibility. This responsibility defines the legal relationship between the parties and indicates what responses may be made to an international obligation’s breach. The International Law Commission (ILC) outlines these responses in Part Two of the Articles on Responsibility of States for Internationally Wrongful Acts (ARSIWA), primarily as cessation and reparation.

Question 121

What is reparation, as a consequence of an internationally wrongful act?

Answer 121

Reparation: The situation must be restored to its pre-violation state. Reparation can involve three main forms:

Restitution (Restitutio in Integrum): Full restoration to the previous condition, possible when the harmed object or situation can be returned or restored. If not feasible, other forms of reparation are pursued.

Compensation: Financial offset for losses when restitution is impossible, covering material damages like property loss and losses suffered by nationals. Compensation is non-punitive, focusing only on actual loss.

Satisfaction: Symbolic or political reparation for non-material injury (e.g., an apology or acknowledgment of the wrongful act). It is meant to uphold the dignity of the harmed state without humiliating the responsible party.

Question 122

What is cessation, as a consequence of an internationally wrongful act?

Answer 122

The obligation of cessation requires the wrongdoing party to stop the unlawful act and, when needed, provide assurances against future repetition. This measure safeguards the future relationship between the parties and any obligations between them.

Question 123

What is an international organisation?

Answer 123

(Article 2(a) Articles on the Responsibility of International Organisations, ARIO):

Must be established by a treaty/instrument governed by international law.

Possesses legal personality and can have both State and non-State members.

Question 124

What is the role of international organisations?

Answer 124

Primarily created by States, international organisations, like the UN, play a critical role in developing international law. The first organisations were formed to address localized issues such as international waterways.

Question 125

What is the permanent court of arbitration?

Answer 125

• One of the oldest international organisations.
• Resolves disputes through panels appointed by the parties involved, with flexible procedural rules.
• Despite newer organisations, the PCA remains relevant as it provides a diverse framework for dispute resolution.

Question 126

What is the UN composed of?

Answer 126

The UN Charter outlines six principal organs: General Assembly, Security Council, Economic and Social Council (ECOSOC), Trusteeship Council, International Court of Justice (ICJ), and the Secretariat.

The UN works to maintain peace, promote international cooperation, and uphold human rights.

Question 127

What is the General Assembly?

Answer 127

The only UN organ with all 193 member states represented, each having one equal vote.

Resolutions are passed by the General Assembly, by either a simple majority, or on important questions a two-thirds majority.

Some resolutions may influence state practices or reflect customary international law, potentially shaping new customary legal rules

Question 128

What is the Security Council?

Answer 128

An organ of the UN. It has 5 permanent member states (China, France, Russia, UK, USA) and ten non-permanent members elected by the General Assembly for 2 year terms.

Each member has one vote, but all 5 members must concur on non-procedural matters, effectively granting them veto power.

Responsible for maintaining international peace and security, can recommend actions to the General Assembly regarding member admissions, expulsions, or suspensions, and plays a role in electing ICJ judges and must support any amendments to the UN Charter.

The Council’s decisions are binding on all UN member states (Art. 25) but apply to specific situations rather than as general legislation.

Question 129

What is the International Court of Justice?

Answer 129

Serves as the UN’s principal judicial organ and influences law development.

Its judgements are highly regarded

Competence: The ICJ settles legal disputes between states and provides advisory opinions. Its jurisdiction is based on state consent and covers disputes referred by UN organs or specialized agencies.

General Jurisdiction: The ICJ’s jurisdiction covers all cases referred to it, including matters specified in the UN Charter or in treaties in force.

Principle of Consent: States must consent to submit to the court’s jurisdiction, which can be done through compulsory jurisdiction (treaties), special agreements, or actual behavior (forum prorogatum).

Question 130

What is the definition of force?

Answer 130

Generally refers to direct or indirect armed action against a state, including through proxies or mercenaries.

Question 131

What does the UN Charter say on the use of force?

Answer 131

Article 2(4): Prohibits the use of force against the territorial integrity or political independence of States, except in self-defence or as authorised by the Security Council. It also prohibits the threat of force, which includes signalling intent to use force unlawfully. A threat would be illegal if it targets a state’s territorial integrity or political independence.

Article 39, 41, and 42: Establish conditions for collective action, with the SC having primary responsibility.

Article 51: Allows self-defence if a state faces an armed attack. States must report self-defence measures to the Security Council, and these measures must be necessary and proportionate.

Question 132

What does Art. 2(4) of the UN Charter (1945) say?

Answer 132

Prohibits the use of force against the territorial integrity or political independence of States, except in self-defence or as authorised by the Security Council. It also prohibits the threat of force, which includes signalling intent to use force unlawfully. A threat would be illegal if it targets a state’s territorial integrity or political independence.

Question 133

What does Art. 39 UN Charter say?

Answer 133

Determines whether there has been a breach of obligations or threat to the peace in relation to Art 41 and 42. Under this article, the UN Security Council has the power to impose on a State any type of measure which does not involve the use of armed force. Determines whether a there is a “threat to peace”, “breach of peace” or “act of aggression”. “The Security Council shall determine the existence of any threat to the peace, breach of the peace, or act of aggression shall make recommendations, or decide what measures shall be taken in accordance with Articles 41 and 42, to maintain or restore international peace and security”

Question 134

What does Art. 41 of the UN Charter (1945) say?

Answer 134

Use of non-forceful measures. Once a breach has been established according to Art. 39, this article says that the measure imposed may include “complete or partial interruption of economic relations and of rail, sea, air, postal and telegraphic, radio and other means of communication, and the severance of diplomatic relations”. These articles are binding. “The Security Council may decide what measures not involving the use of armed force are to be employed to give effect to its decisions…” This includes sanctions.

Question 135

What does Art. 42 UN Charter (1945) say?

Answer 135

Authorises the use of force as a response to threats to peace, breaches of peace, or acts of aggression, according to UN Security Council instructions (conditional). Art 39 says that the UNSC will determine these threats/breaches.

Question 136

What article of which document determines when there has been a breach of peace, threat to peace, or act of aggression?

Answer 136

Art. 39 of the UN Charter- Determines whether there has been a breach of obligations or threat to the peace in relation to Art 41 and 42. Under this article, the UN Security Council has the power to impose on a State any type of measure which does not involve the use of armed force. Determines whether a there is a “threat to peace”, “breach of peace” or “act of aggression”. “The Security Council shall determine the existence of any threat to the peace, breach of the peace, or act of aggression shall make recommendations, or decide what measures shall be taken in accordance with Articles 41 and 42, to maintain or restore international peace and security”

Question 137

What article of what document describes the use of non-forceful measures in response to a breach of of peace, act of aggression or threat to peace?

Answer 137

Art. 41 of the UN Charter (1945)- Use of non-forceful measures. Once a breach has been established according to Art. 39, this article says that the measure imposed may include “complete or partial interruption of economic relations and of rail, sea, air, postal and telegraphic, radio and other means of communication, and the severance of diplomatic relations”. These articles are binding. “The Security Council may decide what measures not involving the use of armed force are to be employed to give effect to its decisions…” This includes sanctions.

Question 138

What article of what document authorises the use of force?

Answer 138

Art. 42 of the UN Charter (1945)- Authorises the use of force, according to UN Security Council instructions, in response to breaches of peace, threats to peace, or acts of aggression, which are determined by the Security Council, as laid out in Art. 39 of the UN Charter.

Question 139

Which article of which document prohibits the use of force?

Answer 139

Art. 2(4) of the UN Charter: Prohibits the use of force against the territorial integrity or political independence of States, except in self-defence or as authorised by the Security Council. It also prohibits the threat of force, which includes signalling intent to use force unlawfully. A threat would be illegal if it targets a state’s territorial integrity or political independence.

Question 140

What criteria are there for the use of force as self-defence, and where are these criteria specified?

Answer 140

Self-defence must be necessary and proportionate to the armed attack

Necessary: Force is only used when no other options exists

Proportionate: Limits actions to what is required to repel the attack.

This is not directly specified in Art. 51 of the UN Charter, but they are implied within this article, since necessary and proportionate responses are part of customary international law.

Question 141

What constitutes an armed attack, and where was it defined?

Answer 141

An armed attack can be understood as military force by a state across an international border- however, it does not have to be carried out by state militaries to constitute an armed attack- for example, in the case of a terrorist attack.

The ICJ defined an armed attack in the Nicaragua v. United States case (1986), as an attack across a state border which is sufficient in scale and effect that it could have been a military attack, and can be attributed to the state (through methods of state attribution).

Question 142

What criteria are there for an armed attack?

Answer 142

• Scale
• Effect
• State attribution

Question 143

What can constitute a threat to peace, a breach to peace, and an act of aggression?

Answer 143

These are defined by the Security Council, under Art. 39 UN Charter (1945).

Threat to peace: The broadest threat, can include inter-state violence, human rights violations, terrorism, and health crises
Breach of peace: Rare, typically involving invasions
Act of aggression: Has not been formally determined by the Security Council

Question 144

What is preemptive self-defence?

Answer 144

Immediate response to an ongoing, urgent threat.

Question 145

What is preventative self-defence?

Answer 145

Based on future threats, typically rejected as a defence for breaching obligations due to concerns over arbitrary use of force.

Question 146

What is the difference between preemptive and preventative self-defence?

Answer 146

Pre-emptive Self-Defence: Immediate response to an ongoing, urgent threat.

Preventative Self-Defence: Based on future threats, typically rejected due to concerns over arbitrary use of force.

Question 147

What is the type of defence called which is an immediate response to an ongoing, urgent threat?

Answer 147

Pre-emptive self-defence

Question 148

What is collective self defence?

Answer 148

Requires consent from the attacked state, and responses must be proportional and necessary.

Question 149

What is the unwilling or unable doctrine?

Answer 149

A state may intervene in another state if the latter is unwilling or unable to act against terrorist groups within its borders.

Question 150

What are the key criteria for an armed attack, and where do they come from, and what are the responses to it?

Answer 150

Based on the Nicaragua (1986) case.

Criteria for Armed Attack (Nicaragua Case):

Actions by regular armed forces or armed groups sent by a state qualify as armed attacks.

Not all uses of force constitute an armed attack; the scale and effect matter.

Proportionality and Necessity: Any use of force in self-defence must adhere to the principles of proportionality and necessity, as recognised in international law.

Self-Defence Against Non-State Actors: States may claim self-defence if attacked by non-state actors, but the threat must meet the criteria for an armed attack.

Question 151

What is a sanction?

Answer 151

Sanctions are measures imposed by the UN Security Council (UNSC) to enforce compliance with international law, initially hoping states would adhere voluntarily, but enforcement became necessary over time. Sanctions are collective actions.

Question 152

What is the purpose of a sanction?

Answer 152

They act as a tool for coercion and are aimed at states that violate international law or pose threats to peace.

Question 153

What does Art. 25 UN Charter (1945) state?

Answer 153

The Security Council can issue binding decisions which apply to all members, particularly when addressing international peace and security. Recent resolutions, like the post-9/11 Resolution 1373 targeting terrorism demonstrate the Security Council’s effective ability to “legislate” by creating universally binding obligations, expanding beyond its traditional role of peacekeeping.

Question 154

Which article of which document says that all Security Council decisions are binding on all states?

Answer 154

Art. 25 of the UN Charter. The Security Council can issue binding decisions which apply to all members, particularly when addressing international peace and security. Recent resolutions, like the post-9/11 Resolution 1373 targeting terrorism demonstrate the Security Council’s effective ability to “legislate” by creating universally binding obligations, expanding beyond its traditional role of peacekeeping.

Question 155

What does Art. 103 of the UN Charter say?

Answer 155

UN Security Council obligations take precedence over other international agreements.

Question 156

Which article of which document states that Security Council decisions take precedence over other international agreements?

Answer 156

Art. 103 of the UN Charter (1945)

Question 157

What is the difference between a countermeasure and a sanction?

Answer 157

Sanctions are collective actions imposed by international organisations like the UNSC.

Countermeasures are unilateral responses (not collective) taken by states in response to unlawful acts of another actor. They cannot be anticipatory.

Question 158

What types of sanctions are there?

Answer 158

• Economic sanctions: Trade restrictions, communication embargoes, arms embargoes, asset freezes, and suspension of cooperation in scientific or cultural fields.
• Targeted sanctions (smart sanctions- see UNSC resolution 1267): Focus on specific individuals, entities, or goods (e.g., oil, diamonds, travel bans or asset freezes).

Question 159

What examples of economic sanctions are there?

Answer 159

Trade restrictions, communication embargoes, arms embargoes, asset freezes, and suspension of cooperation in scientific or cultural fields.

Question 160

What are some examples of targeted sanctions/smart sanctions?

Answer 160

oil, diamonds, travel bans and asset freezes

Question 161

What are some humanitarian considerations when imposing sanctions?

Answer 161

Modern sanctions often include exemptions for humanitarian aid, and emphasis is placed on avoiding harm to civilian populations. However, collective sanctions can still negatively affect basic services like food, healthcare, and education.

Most sanctions are targeted against a state for breaching international law, and thus have a retributive or punitive character. However, they can also have an exemplary character, being imposed on a state in order to deter other states from committing the same act. Though economic sanctions are non-forcible in character, they have a particularly devastating effect on the stability and resilience of a society.

Question 162

What limitations are there on sanctions?

Answer 162

Necessity and Proportionality: Sanctions should be necessary and proportionate to the breach, and should aim to restore international peace and security/terminate threats.

Jus Cogens: The UNSC is bound by fundamental norms of international law, though breaches of these norms by the UNSC remain unclear.

Question 163

Where and when was blacklisting introduced?

Answer 163

UNSCR 1267 (Al-Qaeda/Taliban) (1999): Originally targeted the Taliban to pressure Osama bin Laden’s extradition. Later expanded to Al-Qaeda and associated entities, enforcing asset freezes, travel bans, and arms embargoes globally. The criteria for inclusion, e.g. “associating with” terrorism, are broad. The regime targets individuals associated with Al-Qaeda and the Taliban, The criteria for listing are broad, and the process lacks transparency and accountability.

Question 164

What is UNSC Resolution 1267?

Answer 164

UNSCR 1267 (Al-Qaeda/Taliban) (1999)

Originally targeted the Taliban to pressure Osama bin Laden’s extradition. Later expanded to Al-Qaeda and associated entities, enforcing asset freezes, travel bans, and arms embargoes globally. The criteria for inclusion, e.g. “associating with” terrorism, are broad. The regime targets individuals associated with Al-Qaeda and the Taliban, The criteria for listing are broad, and the process lacks transparency and accountability. Shift to “smart sanctions”, against individuals rather than whole countries, international sanctions become more targeted, and the blacklist is formed. This measure was reactive, purely.

Question 165

What impact did 9/11 have on blacklisting and responses to terrorism?

Answer 165

UNSCR 1373 (post-9/11 terrorism) (2001): Adopted after 9/11, allowing states to blacklist individuals/entities supporting terrorism, with discretion at the national level. It took the resolution 1267 from 1999 to a new level, from reactive to preventative.

Terrorism was described as a threat to international peace and security. The resolution obliged states to create their own lists of terrorist suspects, and take preventative measures towards terrorism in their borders, leading to a decentralised and potentially arbitrary application of sanctions.

Adopted after 9/11, allowing states to blacklist individuals/entities supporting terrorism, with discretion at the national level. Established the counterterrorism community. All states must take action against terrorism, including preventative measures- and this is binding to all states. Terrorism described as a threat to international peace and security. Allows states to create their own lists of terrorist suspects, leading to a decentralised and potentially arbitrary application of sanctions. This defines terrorism as a security risk which needs to be prevented from occurring. We know there are terrorists, and something must be done before any attacks occur. This justifies action before terrorist attacks have occurred. The SC is basically dictating that States need to have internal/domestic measures- what laws to have, what measures to fight terrorism, etc.- which can impact sovereignty.

Preventative (enacting measures before terrorism occurs)

Act on intelligence information (secret, need to trust the State that they make a good judgement)

Executive and administrative decisions (decision by the SC that creates far-reaching obligations for the member states, evidence isn’t investigated, proposals are basically just accepted).

Far-reaching powers UNSC created by this- the amount of measures that States need to make according to binding legal obligations created by the UNSC is quite overwhelming according to 1373.

Question 166

Why was UNSC resolution 1373 (2001) revolutionary?

Answer 166

Because the UN Security council, using Art. 25 of the UN Charter (which says that all decisions made by the Security Council are binding on all member states), decreed that all states must take preventative steps towards terrorism within their own borders, as a response to the 9/11 attacks. This is revolutionary because it is essentially the first time the UN had an impact on domestic laws of states (i.e. to take measures against terrorism)- which arguably impacts state sovereignty.

Question 167

What kind of rights can be breached through blacklisting?

Answer 167

Right to Fair Trial (Art. 6 ECHR, 1953): Blacklisted individuals often lack the opportunity to challenge the listing or access evidence.

Right to be Informed and Heard (part of Art. 6 ECHR, 1953): Many individuals are not notified about their listing or given access to evidence, undermining their defence.

Right to Property (Art 1 of Protocol No. 1 to the ECHR): Asset freezes can severely affect individuals’ property rights without proper judicial review.

Right to Privacy (Art. 8 ECHR, 1953): public disclosure of personal information, as well as the impact on someone’s ability to travel, conduct business, and engage in personal activities. Excessive government surveillance, and the inability to contest or remove oneself from a list.

Question 168

What are sanctions used for in the context of terrorism?

Answer 168

Sanctions are a tool for enforcement of legal obligations. Sanctions are:

Ordinarily themselves a breach of an international obligation

A coercive response to the breach of another state

Taken in execution of a decision of an organ of an international organisation which is legally competent to make a relevant decision or recommendation

Decisions taken by international organisations against their own member states, in response to a breach of the law of that international organisation

Can be imposed as an anticipatory response to a “threat” (preventative enforcement)

Question 169

What is a smart sanction?

Answer 169

Introduced in 1999 from the UNSC resolution 1267, which had increasing focus on targeting state elites and terrorist groups rather than broader state sanctions, including travel bans and asset freezes. This prevents humanitarian rights from being so drastically infringed, which previous sanctions (e.g. economic) often cause.

Question 170

Why might a state not want to inform someone that they are blacklisted?

Answer 170

1. Preserving the Effectiveness of Sanctions: Informing a person about their blacklisting might allow them to move assets, evade restrictions, or take steps to avoid the sanctions’ intended impact.
2. Protecting Sensitive Information: Blacklisting decisions often rely on intelligence or classified information. Not notifying the person helps avoid revealing sources, methods, or strategic insights that could compromise ongoing counterterrorism or security operations.
3. Avoiding Challenges and Delays: If the blacklisted person is informed, they may contest the listing in court or other forums, potentially leading to legal complications, delays, or even reversals. States might prefer to act without inviting scrutiny.
4. Preventing Retaliation: In some cases, informing someone that they are blacklisted could provoke hostile actions against the state or its allies, especially if the individual or group has significant resources or influence.
5. International Coordination: States often act in concert with others under frameworks like UN sanctions. Refraining from notification ensures smooth coordination across borders without additional administrative or legal burdens.
6. Legal Ambiguity in Obligations: International law, including UN sanction regimes like UNSCR 1267 and 1373, does not always mandate notification. States might leverage this ambiguity to maintain operational flexibility and avoid accountability.

Question 171

What do the conventions on the suppression of terrorism say about state obligations on responses to terrorism?

Answer 171

They criminalise acts of terrorism, obligating states to either prosecute (if they are in that country) or extradite (giving another state the power to prosecute, so they send the suspect to another state so they can prosecute) someone involved in an act of terrorism.

Question 172

When can a state respond to terrorism?

Answer 172

If you can define the terrorist attack as an act of war/if there has been an armed attack, self-defence can be mobilised. This is when you can respond with force.

You have the right to self defence according to article 51 UN Charter (1945), and article 21 ARSIWA (2001)

Non-state actors: attribution; scale & effect. Nicaragua explains that if the attack is so grave, that in terms of its scale and effect, if it looks like a military attack, and if you can attribute the attack to the state (in Nicaragua, this was done through direct effective control- sending by or on behalf of)

Proportionality & necessity – this must still be complied with

Pre-emptive strikes if imminent- what if the armed attack hasn’t occurred by you know it will come- the Caroline case. Imminent threat, you are sure it is about to happen, no time to do anything else, “no moment for deliberation”, then you are allowed to defend yourself before the attack has occurred.

Question 173

Give some details of the El-Masri v. Macedonia (2012) case

Answer 173

Applicant: Khaled El-Masri, a German citizen of Lebanese descent, was detained in Macedonia in December 2003 and subjected to extraordinary rendition by the CIA.

Central Issues: Torture, inhuman or degrading treatment, arbitrary detention, and violations of the European Convention on Human Rights (ECHR), particularly Articles 3 and 5.

Timeline of Events

Arrival in Macedonia (Dec 31, 2003): El-Masri was detained after his passport and ties to Islamic organizations were questioned. He was transferred to Skopje Hotel and held incommunicado for 23 days.

Hotel Detention: He faced language barriers, inhumane treatment, forced confessions, and denied contact with legal assistance or family. A hunger strike began on the 13th day.

Transfer to Skopje Airport (Jan 23, 2004): Handed over to CIA operatives, subjected to degrading treatment (stripped, hooded, beaten).

Rendition to Afghanistan: El-Masri was flown to a CIA detention facility in Afghanistan where he faced further mistreatment.

Release and Return (May 2004): After being detained for over four months, he was released in Albania and eventually returned to Germany, suffering from PTSD and physical ailments.

El-Masri v. Macedonia was a landmark case because it highlighted the legal responsibility of states involved in the extraordinary rendition program (abducting individuals and transferring them to foreign countries for torture, typically for interrogation) and their duty to protect the human rights of individuals under their jurisdiction, even in the face of international counterterrorism efforts.

Question 174

What does Art. 3 ECHR (1953) say?

Answer 174

Prohibition of Torture and Inhuman Treatment

Overall definition: Deliberate inhuman treatment causing very serious and cruel suffering.

Absolute Prohibition: No exceptions, even in emergencies.

Threshold for Ill-Treatment to be Defined as Torture:
- “Torture” must meet a minimum level of severity- deliberate inhuman treatment causing very serious and cruel suffering
- Intentional infliction of severe pain or suffering with the intention, inter alia, of obtaining information, inflicting punishment or intimidation

“Inhuman or degrading punishment” refers to less severe suffering, but it must still cause significant physical or mental harm. Typically involves cruelty, but not with the same deliberate purpose as torture. Degrading punishment is designed to humiliate or debase the victim, causing fear, anguish or inferiority.

Question 175

What are the defining elements of torture, and where are they specified?

Answer 175

Severity element: Deliberate inhuman treatment causing very serious and cruel suffering. (Actus reus/objective element)

Purposive element: intentional infliction of severe pain or suffering with the aim, inter alia, of obtaining information, inflicting punishment or intimidation. (Mens rea/subjective element)

The prohibition of torture is specified in ECHR Art. 3- and the defining elements are in the specified in the UN Convention against torture.

Question 176

What positive and negative obligations arise from Art. 3 ECHR (1953)?

Answer 176

Positive obligations:
- Prevent ill-treatment: States must ensure that no one within their jurisdiction is subjected to torture or inhuman treatment, including by private parties.

• Investigate allegations of ill-treatment: States must conduct effective, independent investigations when credible claims of ill-treatment arise

Negative obligations:
- Refrain from ill-treatment: States must not engage in acts of torture or degrading treatment, directly or indirectly

• Non-refoulement: States must not deport or extradite individuals to countries where they face a real risk of ill-treatment (extraordinary rendition)

Question 177

What does Art. 5 ECHR (1953) say?

Answer 177

Right to Liberty and Security
Purpose of Art. 5: The prevention of arbitrary deprivation of liberty, by ensuring that any arrest or detention is lawful and justifiable, complies with established procedural safeguards, and prevents abuse of state power.

Detention Compliance: Any detention must comply with national law and involve judicial oversight:

Legality: The arrest/detention must be in accordance with national law

Grounds for detention: One of the six grounds listed in Art. 5(1) must apply, such as lawful detention after conviction, prevention of crime, or pre-trial detention.

Purpose: Must be to ensure an individual is brought before a competent authority, to protect public safety, or another lawful purpose.

Procedural safeguards:
- Prompt information on the reasons for the arrest (Art. 5(2))
- Right to challenge the lawfulness of detention before a court (Art. 5(4))

Question 178

What rights of Khaled Al-Masri were infringed in his ICJ case against Macedonia (2012)?

Answer 178

Violation of Art. 3 (prevention of torture) ECHR, 1953
Violation of Art. 5 (right to liberty) ECHR, 1953

(Also violation of Art. 13, effective remedy)

Question 179

Where is the right to liberty and security defined, and what does it involve?

Answer 179

It is Art. 5 ECHR (1953), and its purpose is the prevention of arbitrary deprivation of liberty, by ensuring that any arrest or detention is lawful and justifiable, complies with established procedural safeguards, and prevents abuse of state power.

Detention Compliance: Any detention must comply with national law and involve judicial oversight:

Legality: The arrest/detention must be in accordance with national law

Grounds for detention: One of the six grounds listed in Art. 5(1) must apply, such as lawful detention after conviction, prevention of crime, or pre-trial detention.

Purpose: Must be to ensure an individual is brought before a competent authority, to protect public safety, or another lawful purpose.

Procedural safeguards:

Prompt information on the reasons for the arrest (Art. 5(2))

Right to challenge the lawfulness of detention before a court (Art. 5(4))

Question 180

What positive and negative obligations arise from Art. 5 ECHR (1953)?

Answer 180

Positive obligations:
- Prevent arbitrary detention: Ensure domestic laws prevent secret detentions or unlawful arrests
- Investigate violations: States must investigate allegations of unlawful detention and hold responsible parties accountable

Negative obligations:
- Refrain from arbitrary detention: States must not detain individuals unlawfully or without clear legal justification
- Respect procedural safeguards: Avoid practices like secret detentions or denial of access to legal review

Question 181

What are the core elements of Art. 3 ECHR (1953)?

Answer 181

Article 3 (Torture and Inhuman or Degrading Treatment):

Prohibition is absolute with no exceptions.

Distinction between ‘torture’ and ‘inhuman or degrading treatment’ is crucial.

States have both negative (not to act to inflict torture) and positive (to act prevent ill-treatment) obligations.

Question 182

What are the core elements of Art. 5 ECHR (1953)?

Answer 182

Article 5 (Liberty and Security):

Detention must comply with national law and be subject to independent judicial review.

Detention must be acknowledged and documented to prevent arbitrary detention and disappearances.

Question 183

What is the principle of non-retroactivity?

Answer 183

No act is punishable if it was not criminal at the time of commission, ensuring laws are applied prospectively.
Favourable amendments to laws can be applied retroactively

Question 184

What is rule of law?

Answer 184

The rule of law is a fundamental principle in legal and political systems that ensures that laws, not arbitrary decisions or individuals, govern society. It establishes that everyone is subject to the law, including governments, public officials, and private citizens. The concept promotes fairness, accountability, and justice, ensuring that laws are applied equally and predictably.

A principle of governance in which all persons, institutions and entities, public and private, including the State itself, are accountable to laws that are publicly promulgated, equally enforced and independently adjudicated, and which are consistent with international human rights norms and standards”
- Formal aspects of the rule of law: what are the characteristics of fair and just laws (legality principle)
General, promulgated, prospective, clear and specific, consistent, practicable, stable, strictly applied
- Substantive aspects of the rule of law: fundamental human rights protect citizens from government abuse

Question 185

What are the sword and shield in (international) criminal law?

Answer 185

Sword in the hands of the state (ability to uphold the law)
Shield in the hands of the individual (protection from state interference

Question 186

Despite there not being a “formal” definition of terrorism, what are some key elements that typically are found in multiple conventions, treaties etc.?

Answer 186

Key elements: Incitement to terror, specific ideologies, and the goal of disrupting public or governmental goals.
Mens Rea (subjective element) and Actus Reus (objective element): Necessary elements for prosecuting terrorism—act (conduct), circumstance (knowledge), and consequence (intended fear or coercion).

Question 187

What types of jurisdiction are there?

Answer 187

Prescriptive: Authority to make laws applicable to conduct. Law-making, often less controversial but constrained by non-intervention. States’ authority to make laws applicable to certain conduct (e.g. the UK passing a law to criminalise terrorism)

Adjudicatory: Authority to judge cases. Courts ruling on cases, potentially more intrusive. states’ authority to subject persons to a judicial process in their courts of law. Power of national courts to hear a criminal case.

Enforcement: Authority to compel compliance with laws. Arrests etc., most invasive and requires territorial consent. States’ authority to compel compliance and punish non-compliance with their laws. Coercive action to ensure compliance of criminal law. Considered to be the most intrusive form of jurisdiction

International Restrictions: Jurisdiction over extraterritorial acts is limited unless explicitly permitted. If a state-passes a law that can cross into another’s territory, this can conflict with non-intervention/state sovereignty

Question 188

What is prescriptive jurisdiction?

Answer 188

Authority to make laws applicable to conduct. Law-making, often less controversial but constrained by non-intervention. States’ authority to make laws applicable to certain conduct (e.g. the UK passing a law to criminalise terrorism)

Question 189

What is adjudicatory jurisdiction?

Answer 189

Authority to judge cases. Courts ruling on cases, potentially more intrusive. states’ authority to subject persons to a judicial process in their courts of law. Power of national courts to hear a criminal case.

Question 190

How does the UN Terrorist Financing Convention define the actus reus (objective element) of terrorism?

Answer 190

• Conduct: This refers to the specific actions taken that constitute the terrorist offence, e.g. providing or collecting funds
• Circumstance: This refers to the context or situation in which the conduct occurs, including the broader terrorist purpose or nature of the act, e.g. the funds are intended to support an act designated to intimidate or coerce governments
• Consequence: This refers to the result or intended outcome of the act, e.g. causing death or serious bodily harm to civilians/non-combatants to intimidate or compel a population or government to act/not act.

Question 191

What is enforcement jurisdiction?

Answer 191

Authority to compel compliance with laws. Arrests etc., most invasive and requires territorial consent. States’ authority to compel compliance and punish non-compliance with their laws. Coercive action to ensure compliance of criminal law. Considered to be the most intrusive form of jurisdiction

Question 192

What is mens rea?

Answer 192

Mens rea (subjective element) refers broadly to the mental state or fault element required for criminal liability. It is a general legal concept that encompasses all mental states of culpability (e.g., intention, recklessness, negligence, etc.).

Scope: It is umbrella term that includes various forms of mental fault:

Dolus (intention or deliberate wrongdoing).

Recklessness (awareness of a risk and disregard for it).

Negligence (failure to meet a reasonable standard of care).

Purpose: Establishes the degree of blameworthiness in the perpetrator’s mind to determine if they are legally culpable.

Question 193

What is dolus?

Answer 193

The intention/deliberate wrongdoing behind a crime. It is a subset of actus reus (objective element), which also includes recklessness and negligence as possible degrees of blameworthiness behind a crime.

Question 194

What is dolus specialis, and how does it relate to terrorism?

Answer 194

Consists of a cognitive and volitional element, and is a subset of mens rea (subjective element). Dolus specialis within terrorism consists of when the purpose of such act, by its nature or context, is to intimidate a population, or to compel a government or an international organization to do or to abstain from doing any act.

Question 195

How do dolus and mens rea relate to terrorism?

Answer 195

When considering the mens rea (subjective element) of terrorism, it can be thought about according to a subcategory of mens rea, ‘dolus’. Dolus, meaning intention, consists of the cognitive and volitional element, and within terrorism specifically, dolus specialis applies.
Mens rea (subjective element) (dolus specialis, specifically) and actus reus (objective element) are necessary to prosecute acts of terrorism, because they indicate a specific intent to carry out specific harmful actions, with specific desired resulting outcomes.

Question 196

What are the mens rea/dolus elements of terrorism?

Answer 196

Cognitive element:
- This relates to the awareness or knowledge of the circumstances and consequences of an action.
- In other words, the perpetrator knows what they are doing and understands the potential consequences.

Volitional element:
- This refers to the will or intent to bring about a particular result.
- The perpetrator intends or desires the consequences of their actions.

Question 197

What jurisdictional principles are there?

Answer 197

Territoriality principle(s)
Nationality principle(s)
Protective principle
Universal principle

Question 198

What is jurisdiction?

Answer 198

A key element of state sovereignty. The right of a state to exercise power over itself without interference from other states. An expression of states’ right under international law to regulate the conduct of natural and legal persons.

Question 199

What are the territoriality principles of jurisdiction?

Answer 199

Territoriality: Jurisdiction over events within a state’s territory. States can assert jurisdiction over crimes occurring within their territory, including on registered ships and aircraft.

Subjective territoriality principle: The punishable act was initiated a state’s borders

Objective territoriality principle The punishable act was completed within a state’s borders

Both subjective and objective principles are equally valid, there is no rule of priority

Question 200

What is the subjective territoriality principle?

Answer 200

Grounds to claim jurisdiction. The punishable act was initiated a state’s borders

Question 201

What is the objective territoriality principle?

Answer 201

Grounds to claim jurisdiction. The punishable act was completed within a state’s borders

Question 202

What is are the nationality principles of jurisdiction?

Answer 202

Nationality: Jurisdiction based on nationality of the perpetrator or victim. States exercise jurisdiction over crimes committed by their nationals. Has also been extended to apply to permanent residents. It applies broadly to civilians and military personnel, relying on the individual’s allegiance. Issues include ensuring a “genuine link” to the nationality claimed.

Active nationality/personality: the perpetrator of the crime has the nationality of the State
that claims jurisdiction.
Who is a national-> by birth/descent/naturalization/creation of new State

Passive nationality/personality: the victim of the crime has the nationality of the State that
claims jurisdiction.

Question 203

What is the active nationality/personality principle?

Answer 203

Grounds to claim jurisdiction. The perpetrator of the crime has the nationality of the State
that claims jurisdiction.

Question 204

What is the passive nationality/personality principle?

Answer 204

Grounds to claim jurisdiction. The victim of the crime has the nationality of the State that claims jurisdiction.

Question 205

What is the protective principle (jurisdiction)?

Answer 205

A state is entitled to assert protective jurisdiction over extra-territorial activities, even if committed by foreigners, if these have an effect on or threaten the sovereignty, security or important governmental function of a state.
- a threat to fundamental national interests
- examples: counterfeiting national currency, passports and stamps, or selling a State’s secrets, espionage. Yet, not obvious what other conduct may be legitimately covered by the principle.

Question 206

What is universal jurisdiction?

Answer 206

Grounds to claim jurisdiction, which any state can claim, since the crimes are especially heinous and “shock the conscience” of society, and affect the international legal order as a whole. Controversial, with debates around its application, particularly regarding presence of the accused. Jurisdiction over a crime without any reference to the place of perpetration, the nationality of the suspect or victim or any other recognized link between the crime and the prosecuting state. Applies to specific crimes:

• Piracy
• Slavery
• War crimes
• Crimes against humanity
• Genocide
• Torture
• Crimes against peace/Crime of aggression

Controversial candidate: terrorism

Question 207

What are some problems with universal jurisdiction?

Answer 207

Practical: international cooperation regarding the investigation still needs to take place. Crimes of genocide, especially if they are ongoing, can be difficult to investigate and gather evidence- sometimes states won’t even allow investigators to enter their territory

Political: selective application and effect on policy of other states- delicate in terms of how to deal with matters, telling other states your are exerting jurisdiction over them

Legal: ne bis in idem (double jeopardy)

Question 208

What is the standard of proof?

Answer 208

This is the threshold which determines the threshold of evidence required at various stages of (international) criminal proceedings. It encompasses reasonable suspicion (at the start of proceedings), the burden of proof (during the investigation and trial), and beyond a reasonable doubt (at the judgement stage). The standard of proof gets increasingly strict as the legal process develops.

Question 209

What is the burden of proof?

Answer 209

Lies with the prosecution, requiring reasonable suspicion to justify investigation and detention of a suspect.

Question 210

What is reasonable suspicion?

Answer 210

Grounds for pre-trial decisions, such as issuing arrest warrants or detention orders. Must be based on verifiable facts, as per Article 5 (right to liberty) of the ECHR (1953).

• Availability of plausible objective evidence
• Would that evidence satisfy an objective observer that has to determine whether there is reasonable suspicion or not (this is based on argument, rather than a set of criteria)

Question 211

What is the beyond a reasonable doubt principle?

Answer 211

Also known as in dubio pro reo. As the case progresses, standards of proof increase- you need reasonable suspicion at the beginning of the investigation, but at the end, during final convictions and conclusions of a trial, standards necessitate decisions to be beyond a reasonable doubt- because the consequences are more serious.

Question 212

What does Art. 5 ECHR (1953) say about reasonable suspicion?

Answer 212

Must be backed by verifiable evidence—not vague or hearsay. Prolonged detention requires safeguards to balance security and rights.

Question 213

Where is reasonable suspicion documented?

Answer 213

Art. 5 ECHR (1953), which defines the right to liberty and security. Reasonable suspicion must be backed by verifiable evidence—not vague or hearsay. Prolonged detention requires safeguards to balance security and rights.

Question 214

What are the differences between the types of jurisdiction and the principles of jurisdiction?

Answer 214

Types of jurisdiction: Defined as prescriptive, adjudicatory and enforcement, these refer to the scope of a state’s legal power in terms of making laws, hearing cases, and enforcing judgements.
Principles of jurisdiction: Defined as nationality, territoriality, protective (and universal), these provide the basis for why a state has the right to exercise jurisdiction.

Question 215

What impact did the Special Tribunal for Lebanon (2007) have on international law?

Answer 215

This UNSC resolution 1757 established a customary rule of international law regarding the international crime of terrorism, at least in time of peace, has indeed emerged. This customary rule requires the following three key elements:

1. the perpetration of a criminal act or threatening such an act (actus reus- objective element!)
2. the intent to spread fear among the population or directly or indirectly coerce a national or international authority to take some action or to refrain from taking it (mens rea- subjective element!)
3. when the act involves a transnational element

Question 216

What customary definition is there of terrorism, and where is it found?

Answer 216

UNSC resolution 1757, the special tribunal for Lebanon (2007), established a customary rule of international law regarding the international crime of terrorism, at least in time of peace, has indeed emerged. This customary rule requires the following three key elements:

1. the perpetration of a criminal act or threatening such an act (actus reus- objective element!)
2. the intent to spread fear among the population or directly or indirectly coerce a national or international authority to take some action or to refrain from taking it (mens rea- subjective element!)
3. when the act involves a transnational element

Question 217

What is UNSC resolution 1757?

Answer 217

UNSC resolution 1757, the special tribunal for Lebanon (2007), established a customary rule of international law regarding the international crime of terrorism, at least in time of peace, has indeed emerged. This customary rule requires the following three key elements:

1. the perpetration of a criminal act or threatening such an act (actus reus- objective element!)
2. the intent to spread fear among the population or directly or indirectly coerce a national or international authority to take some action or to refrain from taking it (mens rea- subjective element!)
3. when the act involves a transnational element

Question 218

What doctrines protect human dignity in relation to criminal procedures?

Answer 218

Criminal procedural law must respect fundamental rights and the dignity of individuals involved.

Foundations:
- Universal Declaration of Human Rights (UDHR): Equality and dignity (Art. 1).
- International Covenant on Civil and Political Rights (ICCPR): Rights derive from inherent dignity (Preamble).
- EU Charter of Fundamental Rights: Dignity is inviolable and must be respected (Art. 1).

Question 219

Where is the ECHR applicable?

Answer 219

Created by the Council of Europe (separate from the EU and UN), enforced by the ECtHR. Ratified by 46 states in Europe.

Question 220

What is a non-derogable right?

Answer 220

Nonoderogobobo rights are absolute, unbreachable rights. They are considered to be jus cogens, meaning they are binding to all states, too.

Question 221

What are the non-derogable rights under the ECHR (1953)?

Answer 221

Art. 2: Right to life (except lawful war deaths).

Art. 3: Prohibition of torture.

Art. 4(1): Prohibition of slavery and servitude.

Art. 7: No punishment without law.

Art. 4 Protocol 7: Ne bis in idem (double jeopardy).

Question 222

What are derogable rights?

Answer 222

A derogable human right is a human right that can be restricted or suspended in specific circumstances, particularly during times of emergency or war, provided that the restrictions meet certain criteria laid out in international law. They are not absolute, and can be limited- but the limitation must be proportional, necessary, and prescribed by the law.

Question 223

What are the derogable rights under the ECHR (1953)?

Answer 223

Rights under Articles 5-11 ECHR

Question 224

Which human rights in the ECHR influence criminal procedure?

Answer 224

• Article 2 ECHR (the right to life)- non-derogable
• Article 3 ECHR (prohibition of torture) - non-derogable
• Article 5 ECHR (right to liberty and security)
• Article 6 ECHR (right to a fair trial)
• Article 7 ECHR (no punishment without law) non-derogable
• Article 8 ECHR (the right to respect for private and family life)
• Article 9 ECHR (freedom of thought, conscience and religion)
• Article 10 ECHR (freedom of expression)
• Article 11 ECHR (freedom of assembly and association)
• Article 4 Protocol 7 ECHR (right not to be tried or punished twice) - non-derogable

Question 225

Break down the concepts within Art. 5 ECHR (1953)

Answer 225

Overall, this article encompasses the right to liberty and security.
(1): Establishes the fundamental right to personal liberty and security. Any deprivation of liberty must be done lawfully and in a manner consistent with the law. Specified allowances for the infringement upon the right to liberty include:
- detention after conviction
- detention after non-compliance with a court order
- detention after arrest
- detention of a minor for the purpose of educational supervision
- detention for prevention of spread of infectious diseases/of persons of unsound mind/alcoholics/drug addicts
- detention to prevent illegal immigration or facilitate extradition or deportation

(2) The right to be informed of the reasons for detention

(3) The right to be brought before a judge

(4) The right to challenge the lawfulness of detention

(5) The prohibition of arbitrary detention

Question 226

What infringements upon liberty and security are allowed, and where are they specified?

Answer 226

Specified in Art. 5(1) ECHR (1953):
Establishes the fundamental right to personal liberty and security. Any deprivation of liberty must be done lawfully and in a manner consistent with the law. Specified allowances for the infringement upon the right to liberty include:
- detention after conviction
- detention after non-compliance with a court order
- detention after arrest
- detention of a minor for the purpose of educational supervision
- detention for prevention of spread of infectious diseases/of persons of unsound mind/alcoholics/drug addicts
- detention to prevent illegal immigration or facilitate extradition or deportation

Question 227

What is the margin of appreciation?

Answer 227

The margin of appreciation is a legal doctrine developed by the European Court of Human Rights (ECtHR). It allows states a certain degree of discretion in how they apply and interpret European Convention on Human Rights (ECHR) rights within their own legal and cultural contexts. This means that while the ECtHR sets minimum standards for human rights protection, the states themselves have some flexibility in how to meet those standards. The margin of appreciation allows states to take into account their own legal, cultural, and social contexts when applying ECHR rights.

Question 228

Under what circumstances can derogable rights be breached?

Answer 228

Express limitation clauses - Interference must be lawful, pursue a legitimate aim, and be necessary and proportionate.

Emergency derogation - Temporary suspension of certain rights during war/public emergencies, with strict conditions.

Margin of appreciation - Recognises that domestic authorities are better placed to decide what is necessary to protect public interests while balancing human rights

Question 229

What is the principle of subsidiarity?

Answer 229

Subsidiarity refers to the principle that national authorities (e.g., governments, courts) are in a better position than international bodies (like the ECtHR) to make decisions regarding human rights within their own country. This principle acknowledges that national governments are more familiar with their own social, cultural, and legal contexts and are therefore better equipped to apply human rights protections to suit those specific needs. Subsidiarity means that the ECtHR is considered a safety net. If national courts or authorities fail to protect an individual’s rights or wrongly interpret the Convention, then the ECtHR steps in to ensure compliance with human rights.

Question 230

How do the margin of appreciation and the principle of subsidiarity intersect in international law?

Answer 230

The margin of appreciation allows states a certain degree of discretion in how they apply and interpret European Convention on Human Rights (ECHR) rights within their own legal and cultural contexts. This means that while the ECtHR sets minimum standards for human rights protection, the states themselves have some flexibility in how to meet those standards. The margin of appreciation allows states to take into account their own legal, cultural, and social contexts when applying ECHR rights.
In this way, the margin of appreciation maintains the principle of subsidiarity, which refers to the principle that national authorities (e.g., governments, courts) are in a better position than international bodies (like the ECtHR) to make decisions regarding human rights within their own country.

Question 231

What is an express limitation clause?

Answer 231

The ECHR allows for limitations on some rights (Arts. 5-11 ECHR) under specific circumstances. These limitations are not automatically allowed; they must meet a 3-part test to ensure they are justified and lawful:
1. Any limitation must be prescribed by law (accessible, foreseeable). The law must exist before the limitation.
2. The interference must be performed for the purpose of the specific grounds stated in the ECHR, such as national security, public safety, or preventing crime.
3. Necessary in a democratic society (proportional, pressing social need).

Question 232

What is derogation in emergencies?

Answer 232

A clause allowing limited breaches of derogable rights (Arts. 5-11) in the ECHR (1953). These are permitted during war/public emergencies which threaten national lives.
The measures must be:

• Strictly necessary and proportionate.
• Consistent with international law.
• Non-applicable to non-derogable rights.

Question 233

Break down the concepts within Art. 6 ECHR (1953)

Answer 233

This specifies the right to a fair trial.

(1): General provisions.
- Fair, public hearing within reasonable time by an independent and impartial tribunal.
- Ensures effective participation and equality of arms in proceedings.

(2): Presumption of innocence.
- Prosecution bears the burden of proof.
- Standard: Beyond reasonable doubt.

(3): Minimum rights for the defence.
- Right to be informed of charges.
- Adequate time/facilities for defence.
- Legal assistance, witness examination, and interpreters when necessary.

Question 234

What are the elements of a fair trial?

Answer 234

Found in Art 6 ECHR (1953).

• Independent/impartial judiciary.
• Public trial within reasonable time.
• Adversarial proceedings with disclosure of evidence.
• Right to silence and protection from entrapment.
• Right to legal council
• Presumption of innocence
• Standard of beyond a reasonable doubt
  (and more)

Infringement of the right to a fair trial does not automatically amount to a breach of Article 6 ECHR, and therefore a lack of fair trial, as concluded in the Ibrahim case. Compelling reasons can restrict the right to legal assistance, as long as the restrictions are still bound by certain conditions

Question 235

Is Art. 6 a derogable or non-derogable right?

Answer 235

Infringement of the right to a fair trial, a derogable right, does not automatically amount to a breach of Article 6 ECHR, and therefore a lack of fair trial, as concluded in the Ibrahim case. Compelling reasons can restrict the right to legal assistance, as long as the restrictions are still bound by certain conditions

Question 236

What happened in the Ibrahim et al. v. UK (2016) case?

Answer 236

Facts of the Case

• The case involved four applicants who were arrested in the aftermath of the 2005 London bombings (7/7 attacks) and the subsequent failed attacks on 21 July 2005.
• The applicants were suspected of involvement in the 21 July attempted bombings or of assisting those responsible.
• Three of the applicants (Ibrahim, Mohammed, and Omar) were subjected to “safety interviews” immediately after their arrests.
• The fourth applicant (Osman) was interviewed under standard procedures but also without access to a lawyer during police detention.
• In their trials, the applicants’ statements made during these initial interrogations were admitted as evidence and contributed to their convictions.

During this case, the ECtHR agreed with the government that Salduz v. Turkey (2008) said that some rights can be carefully limited under certain conditions. The Ibrahim case elaborated in this, and imposed a two-part test in regard to restrictions of the right to legal assistance. These are:

• Exceptional and temporary withholding of legal assistance, and based on individual assessment
• Based on domestic law
• (There must also be a danger to the rights of the general public as enshrined in Art. 2 (right to life), 3 (prohibition of torture) and 5(1) (right to liberty and security) of the ECHR.

These cases are required circumstances, of which all are required to be a compelling enough reason to justify the lack of lawyer in a case.

Results of the case:
- There was no violation of Art. 6 for 3 of the applicants, since the overall fairness of their trials was not compromised (they were informed of the suspicions against them, safety interviews were recorded, the applicants had access to legal council immediately after the interviews, convictions were based on a substantial amount of evidence not solely from the interviews).
- Osman, after being denied legal assistance without justification, and the use of his statements at trial while under the impression that he was a witness and not a suspect, constituted a breach of Art. 6 ECHR.

Question 237

What happened in the Salduz v. Turkey case?

Answer 237

Facts of the Case

Applicant: Salduz, a minor (aged 17) at the time of the incident.

Context:
- Salduz was arrested in Turkey for participating in an illegal demonstration and allegedly hanging banners for the PKK (a proscribed organisation in Turkey).
- He was interrogated by the police and made incriminating statements without access to a lawyer.
- During his trial, his confession, obtained in the absence of legal assistance, was a key piece of evidence used to convict him.
- Salduz claimed that his inability to consult a lawyer during his detention violated his right to a fair trial.

ECtHR Judgment
- The ECtHR found that denying access to legal counsel during police custody constituted a breach of Article 6(3)(c) (the right to legal assistance) and Article 6(1) (the right to a fair trial) of the ECHR.

Key Principle
- Access to a lawyer must be provided from the first interrogation of a suspect unless there are compelling reasons to justify a restriction, and even then, such restrictions must not prejudice the overall fairness of the trial (Art. 6 ECHR).

Question 238

What types of evidence are there?

Answer 238

1. Testimonial evidence
2. Documentary evidence
3. Real/physical evidence
4. Demonstrative evidence

All of these can be considered direct or indirect evidence.

Question 238

What is a ‘safety interview’?

Answer 238

Safety interviews: A type of questioning aimed at obtaining urgent information to prevent further attacks or threats to public safety, conducted without legal assistance.

Question 238

What happened in the El-Masri v. Macedonia case?

Answer 238

Facts of the case:
- Applicant: Khaled El-Masri, a German citizen of Lebanese descent, was detained in Macedonia in December 2003 and subjected to extraordinary rendition by the CIA.

Central Issues: Torture, inhuman or degrading treatment, arbitrary detention, and violations of the European Convention on Human Rights (ECHR), particularly Articles 3 and 5.

Timeline of Events
- Arrival in Macedonia (Dec 31, 2003): El-Masri was detained after his passport and ties to Islamic organizations were questioned. He was transferred to Skopje Hotel and held incommunicado for 23 days.
- Hotel Detention: He faced language barriers, inhumane treatment, forced confessions, and denied contact with legal assistance or family. A hunger strike began on the 13th day.
- Transfer to Skopje Airport (Jan 23, 2004): Handed over to CIA operatives, subjected to degrading treatment (stripped, hooded, beaten).
- Rendition to Afghanistan: El-Masri was flown to a CIA detention facility in Afghanistan where he faced further mistreatment.
- Release and Return (May 2004): After being detained for over four months, he was released in Albania and eventually returned to Germany, suffering from PTSD and physical ailments.

Art. 3 ECHR:
Hotel: Classified as inhuman and degrading treatment, due to mental suffering, solitary confinement, and forced confessions.
Skopje Airport: Classified as torture, involving severe physical and mental suffering intended to extract information.
Findings: The Court determined the applicant’s treatment violated Article 3, as it was severe enough to amount to torture.

Art. 5 ECHR:
His detention lacked acknowledgement, documentation, or judicial review, violating Article 5 (right to liberty and security). It was unacknowledged and arbitrary, with no legal justification for his detention or transfer.

Question 238

What is testimonial evidence?

Answer 238

Human, witness statements. Can be oral or written (written typically applies to expert witness statements).

Question 239

What is documentary evidence?

Answer 239

Documents, emails, emails, databases, maps, photographs, video or audio recordings, social media, encrypted data etc.

Question 240

What is real/physical evidence?

Answer 240

Tangible objects (e.g., forensic/physical material).

Question 241

What is demonstrative evidence?

Answer 241

Visual aids, diagrams, maps, models, diagrams, 3D platforms

Question 242

What is direct evidence?

Answer 242

directly proves the fact, no assumptions needed. Often seen as more persuasive (but not always), e.g. eyewitness testimony, confessions, or video footage.

Question 243

What is indirect evidence?

Answer 243

Also known as circumstantial evidence. requires inference, reasoning, logic or probability to connect the fact to the evidence. Can be as strong as direct evidence when there are sufficient circumstantial evidence sources which all point in the same direction. E.g. fingerprints, motive, suspicious behaviour etc.

Question 244

What are some challenges of evidence in terrorism cases?

Answer 244

• Complex and varied (e.g., classified data, foreign languages, massive volumes).
• Challenges: International cooperation, witness protection, technical requirements.

Question 245

What are some principles of evidence?

Answer 245

• Burden and Standard of Proof: The ICC Prosecutor must prove guilt “beyond all reasonable doubt.”

Relevance, Probative Value, and Weight:
- Relevance: Evidence must relate to trial issues.
- Probative Value: The degree to which evidence proves a fact.
- Weight: Assessed based on credibility, reliability, and corroboration.

• Admissibility: Evidence must meet specific criteria, including authentication and absence of undue prejudice.
• Authenticity: Provenance of evidence is crucial for admissibility and weight.

Question 246

What are admissibility criteria for applications to the ECtHR?

Answer 246

Applications must not abuse the right of complaint.

Must not concern matters already examined unless new information is presented.

Must not be incompatible with the Convention’s provisions.

Domestic remedies must be exhausted before approaching the Court.

Applications must be submitted within six months of the final national decision.

Must not be manifestly ill-founded.

Must demonstrate that the applicant has suffered a significant disadvantage.