Sie sind auf Seite 1von 41

Public International Law

A thematic overview of PIL characteristics (for law students)

By Mercedes Bouter

Visit http://pilstudy.blogspot.nl/

Treaty law: the conditions for making lawful reservations to treaties

http://rechtenadvies.blogspot.nl/ and http://pilstudy.blogspot.nl/


(international)
Do reservations diminish the object and purpose of a Treaty?
This question could well be posed by a naturalist. From a naturalist point of view, one could
state that reservations do undermine the purpose of a Treaty, for, what is the use of a Treaty, if
states are- de facto- allowed to exclude the (ICJ) jurisdiction, especially when it comes to
treaties concerning human rights, as is one of the main topical issues, the multilateral
Convention on the prevention and punishment of the crime of genocide, Art. IX?

1.1. Positivist approach: efficiency and efficacy


From a positivist approach, however, to some extent, compromises are inevitable in the treaty-
making process; the treaty-making process requires efficiency. Efficiency could not be
reached if every party to a treaty has to vote unanimously on a large number of matters- which
was, in fact, the case before 1940. It goes to show that negotiations often take decades before
a "final" decision is issued.
Another positivist argument on the permissibility of reservations can be found in the efficacy
of international rules. States are more likely to adhere to certain rules if they are able to shape
the rules, more or less, to their own discretion.

1.2. The USSR case and the ICJ Opinion on Reservations


The conclusion that reservations to treaties are permissible, stems from the 1948 Genocide
Convention. Not having recognized the jurisdiction of the International Court of Justice, the
USSR proposed reservations to article IX of the Genocide Convention, discarding the
jurisdiction of the ICJ to enforce article IX. The advisory opinion holds that reservations to a
treaty are permissible, as long as these reservations are compatible with the object and
purpose of the treaty. As you'll notice, this conclusion has found its way into the VCLT,
particularly into article 19. Although the ICJ aims at creating a balance between interests of
states and the purpose of - in case- the Convention- one could say that the advisory opinion
works in favour of the party proposing reservations to a treaty. In the end, state sovereignty
prevails.

Thus, the question is no longer if reservations to a treaty are permissible, for allowing a state
to attach a reservation is a means of imposing obligations on this state, being or expressing its
will to become a party to the treaty. The question is hence, to what extent reservations to
treaties are permissible.
Whether it concerns the decision-making process or judging an international (internationally
wrong acts, for example) case, there will, by nature, always be ambiguity. There are no "hard
and fast rules" in global politics.

Before I am going to discuss what conditions make reservations to treaties permissible, let's
explore the subject, "law of treaties", according to the Vienna Convention on Law of Treaties
(abbreviation: VCLT).
Note that the VCLT just entered into force on 27 January 1980; therefore, it should be clear
that the VCLT is not applicable to cases prior to 1980- if you would like to know which
treaties and conventions could be applied to previous cases, look up the International Court of
Justice database.

2.1. Law of Treaties


The Law of Treaties is said to be governed by the VCLT and international customary law.

http://rechtenadvies.blogspot.nl/ and http://pilstudy.blogspot.nl/


(international)
Since the Vienna Convention is a mere codification of customary international law, can these
two "sources" of law actually be separated? H.L.A. Hart has drawn a distinction between
primary and secondary rules of international law, the first type of rules concerning
(substantive) obligations (such as the prohibition of genocide), the second type governing the
application and interpretation of primary rules (often mentioned examples of secondary rules
include the regimes of state responsibility and the law of treaties). The ILC emphasizes state
responsibility for the sake of efficacy.

The scope of the Vienna Convention is presented in article 1, which states that
"The VCLT applies to treaties between states". Art. 2, para 1 (a) defines "treaties" as:

"International agreements concluded between States, in written form and governed by


international law, whether embodied in a single instrument or in two or more related
instruments and whatever its particular designation".

In two cases, the SS Lotus case (1927) and the SS Wimbledon case (1923), the Permanent
Court of International Justice (PCIJ) has given rise to the idea that two principles underlie the
law of treaties. One is that states are sovereign, therefore no valid treaty can do without the
free consent of states entering into the treaty, i.o. words consensualism is an essential feature;
the other principle is that commiting to a treaty imposes obligations on states: the efficacy of a
treaty requires that states perform these treaties in good faith. However, the old Roman
brocard "pacta sunt servanda" originally applies to civil law.

2.1.2. Ius cogens


Note that peremptory norms are regarded certain overriding principles of international law,
which, speaking with I. Brownlie (Principles of International Law), form a "body of ius
cogens". No State may derogate from these principles by way of a treaty. Treaties conflicting
with a peremptory norm of general international law are void, art. 53 VCLT. The VCLT makes
clear that a peremptory norm of international law is "a norm accepted and recognized by the
international community of States as a whole, from which no derogation is permitted and
which can only be modified by a subsequent norm of general internation law, having the same
character".

2.2. Reservations
According to article 2 (1)(d) a "reservation" means a unilateral statement, however phrased or
named, made by a State, when signing, ratifying, accepting, approving or acceding to a treaty,
whereby it purports to exclude or modify the legal effect of certain provisions of the treaty in
their application to that State".

One main rule conducts the formulation of reservations. As article 19 makes clear, a State
may formulate a reservation, unless:
a. the formulation is prohibited by the treaty itself;
b. the treaty provides that only specified reservations, not including the reservation in
question, may be made;
c. in cases not falling under sub-paragraphs a and b, the reservation is incompatible with the
object and purpose of the treaty.

Highly inspired by the Advisory Opinion of 28 May 1951, the last sub-paragraph has led to
an enduring discussion on the "compatibility" with the "object and purpose of a treaty", for
there is no general rule to define these concepts of a treaty.

http://rechtenadvies.blogspot.nl/ and http://pilstudy.blogspot.nl/


(international)
As Scheinin puts it: "..one might think that the VCLT cannot provide solutions to reservations
problems in relation to human rights treaties because many of its provisions are written to
reflect the operation of multilateral treaty between States in issues where States act in their
own interest in respect of other States [...] where the treaty does not establish an independent
international mechanism for its application and interpretation" (read "Reservations by States
under the ICCPR and its optional protocols", in I. Ziemele, "Reservations to human rights
treaties and the Vienna Convention Regime").

Reservations to treaties and the legal effects of either acceptance or objection by


other States

2.3. Article 19 of the VCLT: different scenarios


Subparagraph a. Reservations prohibited by the treaty
The purpose of, for example, multilateral anti-pollution treaties, sometimes requires the
prohibition of reservations. Another means of establishing consensus is, in that case, the
CBDR: Common But Differentiated Responsibility Principle. Differentiation between states'
obligations is deemed tolerable.

Subparagraph b. Only specified reservations may be made or certain reservations are


prohibited by the treaty
With reference to human rights treaties, the ECHR of 1950 concludes that reservations are
allowed, unless the reservation is incompatible with a particular provision and the reservation
is of a general character (art. 57 ECHR relating to art. 19 VCLT). This is pretty much the
same criterion as would be applied to the 1951 case.

Subparagraph c. The treaty remains silent on reservations


Read the more extensive "Reservations to the Convention of Genocide, Advisory Opinion,
ICJ Reports of 1951, page 15". As I've mentioned before, the conclusion reads that
"..reservations are allowed in principle, unless sub-para a or b applies, or unless the
reservation is contrary to the object and purpose of the treaty in question (art. 19 (c) VCLT)".

Remark that these provisions on reservations apply to multilateral treaties. If a reservation


refers to a bilateral treaty, a revision of the treaty in question or its components may be
required.

2.4. Acceptance of and objection to reservations (art. 20 VCLT)


1. the first way to "permit" a reservation could not be any more clear: as article 20, para 1 of
the VCLT reads, a reservation expressly authorized by a treaty does not require any
subsequent acceptance by other contracting States, unless the treaty so provides. This must be
the ideal scenario;

2. according to the 2nd paragraph, a reservation requires acceptance by all parties, when it
appears from the limited number of negotiating States and the object and purpose of a treaty,
that the application of the treaty in its entirety between all the parties is an essential condition
of the consent of each one to be bound by the treaty;

3. when a treaty is a constituent instrument of an international organization and unless it


otherwise provides, a reservation requires the acceptance of the competent organ of that
organization.

http://rechtenadvies.blogspot.nl/ and http://pilstudy.blogspot.nl/


(international)
2.4.1. Scenarios involving the acceptance of or objection to reservations
Problems arise when the treaty does not provide any means of acceptance or when none of
paragraphs 1 to 3 are applicable. To determine whether a reservation is compatible with the
object and purpose of a treaty, each treaty partner has to decide on the acceptance of and
objection to reservations.
From art. 20 para 4 and 5 VCLT follows that:

a. Another contracting State can expressly accept the reservation, which constitutes the
reserving State a party to the treaty in relation to that other State when the treaty is in force for
those States.

b. An objection made by another contracting States, does not preclude the entry into force of
the treaty as between the objecting and reserving States, unless a contrary intention is
definitely expressed by the objecting State.
Thus, despite the objection, the reservation will enter into force between the reserving and
objecting States, as long as the objecting State does not expressly discard treaty relations with
the reserving State.

c. An act expressing a State's consent to be bound by the treaty and containing a reservation is
effective as soon as at least one other contracting State has accepted the reservation.

d. A contracting State remains silent. According to paragraph 5, a reservation is considered to


have been accepted by a State if it shall have raised no objection to the reservation by the end
of a period of twelve months after it was notified of the reservation, or by the date on which it
expressed its consent to be bound by the treaty, whichever is later.

2.5. Acceptance of or objection to reservations in relation to its legal effects


A summary of the legal effects of acceptance of or objection to reservations:

1. Whether the Accepting State expressly or silently accepts the reservation (implicit
acceptance = art. 20(5) VCLT), art. 20(4)(a) and art. 21(1) VCLT do apply. The legal effect is
that a treaty has been established between the Reserving and Accepting State and that either of
the parties to the treaty can invoke the reservation;

2. If a contracting State does object to a reservation, but does not wish to discard treaty
relations with the Reserving State (art. 20(4)(b)), the provision to which the reservation
relates, does not apply between parties to the extent of the reservation, as art. 21(3) VCLT
prescribes the legal effect of the objection;

3. The fourth scenario is that a State objects to a reservation and discards treaty relations with
the Reserving State, art. 20(4)(b). The treaty does not enter into force between the Reserving
and Objecting State, the latter ultimately not being a "contracting" party to the treaty.

Reservations to treaties: Advisory Opinion on the Genocide Convention

http://rechtenadvies.blogspot.nl/ and http://pilstudy.blogspot.nl/


(international)
3. The Advisory Opinion of 28 May 1951 on the Genocide Convention
Let's take a closer look at the Advisory Opinion of 28 May 1951, on Reservations to the
Convention on the prevention and punishment of the crime of genocide. The concerned actors
are States to a multilateral treaty. The Court of Justice gives the impression that a multilateral
treaty can be divided into multiple bilateral treaties, as it is up to States to decide whether they
wish to enforce the treaty between certain other States.

The General Assembly raises the following questions:

I. Can the reserving State be regarded as being a party to the Convention, while still
maintaining its reservation if the reservation is objected by one or more parties to the
Convention, but not by others?

II. If the answer to question I is the affirmative, what is the effect of the reservation as
between the reserving State and:
a. the parties which object to the reservations?
b. those which accept it?

III. What would be the legal effects as regards the answer to question I if an objection to a
reservation is made:
a. by a signatory which has not yet ratified?
b. by a State entitled to sign or accede but which has not yet done so?

3.1. Answers
On Question I:
A State which has made and maintained a reservation which has been objected to by one or
more of the parties to the Convention, but not by others, can be regarded as being a party to
the Convention, if the reservation is compatible with the object and purpose of the
Convention; otherwise, that State cannot be regarded as being a party to the Convention.

On Question II:
a. If a party to the Convention objects to a reservation which it considers to be incompatible
with the object and purpose of the Convention, it can in fact consider that the reserving State
is not a party to the Convention;
b. If, on the other hand, a party accepts the reservation as being compatible with the object
and purpose of the Convention, it can in fact consider that the reserving State is a party to the
Convention.

On Question III:
a. An objection to a reservation made by a signatory State which has not yet ratified the
Convention can have the legal effect indicated in the reply to Question I, only upon
ratification. Until that moment, it merely serves as a notice to the other State of the eventual
attitude of the signatory State;
b. An objection to a reservation made by a State which is entitled to sign or accede but which
has not yet done so, is without legal effect.

3.2. Conclusion
The Advisory Opinion seems somewhat dissatisfying. It is pretty much up to contracting

http://rechtenadvies.blogspot.nl/ and http://pilstudy.blogspot.nl/


(international)
States whether a reservation is deemed tolerable or not, regarding the object and purpose of
the Convention- given that certain reservations are not excluded in the Convention itself.
However, take a closer look at the Advisory Opinion and you will find the raison d'tre of the
convention, extensively described at page 22 to 25.

As page 24 reads:

" The object and purpose of the Genocide Convention imply that it was the intention of the
General Assembly and of States which adopted it, that as many States as possible should
participate. The complete exclusion from the Convention of one or more States would not
only restrict the scope of its application, but would detract from the authority of the moral and
humanitarian principles which are its basis".

4. Is a reservation to article IX of the Genocide Convention compatible with its object


and purpose?

4.1. Armed Activities on the Territory of the DR of the Congo, Judgment, Jurisdiction of
the Court and Admissibility of the Application, 3 February 2006
Abstract. The Republic of Rwanda requests the Court to declare that (1): the Court lacks
jurisdiction over the claims brought against the Republic of Rwanda by the DR of the Congo.
The Court is required to address only the questions of whether it is competent to hear the
dispute [...] (para 13, 14). I am going to highlight the considerations of the utmost importance
(regarding a reservation to art. IX of the Genocide Convention, sidelining the jurisdiction of
the Court).

4.1.1. DR of the Congo vs. Rwanda: arguments on the jurisdiction of the Court
In the DRC's view, the finding of an "absence of a manifest lack of jurisdiction" could be
interpreted as an acknowledgement by the Court that is has jurisdiction (para 23).
Rwanda argued in its Memorial that the jurisdiction of the Court under the Genocide
Convention was excluded by its reservation to the entirity of Article IX (para 29).

4.1.2. The Court's considerations


The Court will begin by reaffirming that "the principles underlying the Genocide Convention
are principles which are recognized by civilized nations as binding on States, even without
any conventional obligation" and that a consequence of that conception is "the universal
character both of the condemnation of genocide and of the co-operation required in order to
liberate mankind from such an odious scourge". Thus, the Convention enshrines rights and
obligations "erga omnes". The mere fact that rights and obligations erga omnes may be at
issue in a dispute, would not give the Court jurisdiction to entertain that dispute. The fact that
a dispute relates to compliance with a norm of ius cogens character (peremptory norms of
general international law) cannot of itself provide a basis for the jurisdiction of the Court to
entertain that dispute. Under the Court's Statute, that jurisdiction is always based on the
consent of the parties (para 64).

The Court notes that is has already found that reservations are not prohibited under the
Genocide Convention [refers to the 1951 Advisory Opinion on Reservations]. This legal
situation is not affected by the fact that the Statute of the International Criminal Court, in its
Article 120, does not permit reservations to that Statute, including provisions relating to the
jurisdiction of the International Criminal Court on the crime of genocide. Thus, in the view of
the Court, a reservation under the Genocide Convention would be permissible to the extent

http://rechtenadvies.blogspot.nl/ and http://pilstudy.blogspot.nl/


(international)
that such reservation is not incompatible with the object and purpose of the Convention (para
66).

Rwanda's reservation to Article IX of the Genocide Convention bears on the jurisdiction of


the Court, and does not affect substantive obligations relating to acts of genocide themselves
under that Convention. The reservation of Rwanda in question, meant to exclude a particular
method of settling a dispute relating to the interpretation, application or fulfilment of the
Convention, is not to be regarded as being incompatible with the object and purpose of the
Convention (para 67).

As a matter to the law of treaties, when Rwanda acceded to the Genocide Convention and
made the reservation in question, the DRC made no objection to it (para 68).
The Court concludes that, having regard to Rwanda's reservations to Article IX of the
Genocide Convention, this Article cannot constitute the basis for the jurisdiction of the Court
in the present case (para 70).

4.2. Joint Separate Opinion on "Armed Activities on the Territory of Congo"


The judges voted in favour of paragraph 128 of the Judgment on Congo vs. Rwanda.
However, their joint separate opinion stresses that some issues do require further
consideration.

With regards to paragraph 67 and 72, the judges consider that "..much will depend upon the
particular convention concerned and the particular reservation. In some treaties, not all
reservations to specific substantive clauses will necessarily be contrary to the object and
purpose of the treaty. Some such reservations to particular substantive clauses may be of this
character (ICCPR is mentioned). Conversely, a reservation to a specific "procedural"
provision in a certain convention, could be contrary to the treaty's object and purpose. For
example, the treaty bodies set up under certain United Nations conventions may well be
central to the whole efficacy of those instruments ("at the heart of the convenant system")"
(para 21).

It is, thus, not self-evident that a reservation to Article IX could not be regarded as
incompatible with the object and purpose of the Convention (para 29).

The lawful termination of treaties and Gabkovo-Nagymaros

http://rechtenadvies.blogspot.nl/ and http://pilstudy.blogspot.nl/


(international)
The Vienna Convention contains general provisions on suspension and termination of treaties,
in particular Articles 54 to 62 VCLT.
Before I am going to discuss the infamous Gabkovo-Nagymaros (pronunciation: Gab-chi-
co-vah/ Nagee-marosh) case, I will first make a disctinction between formal and substantive
grounds for termination or suspension of a treaty.

1.1. Formal grounds for termination or suspension of a treaty


The formal grounds for termination of treaties is provided by articles 54 to 59 VCLT. These
include termination in conformity with the provisions of the treaty and termination by consent
of all the parties after consultation (art. 54) and termination or suspension of the operation of
the treaty implied by conclusion of a later treaty (art. 59).

1.2. Material grounds for termination


Articles 60 to 62 VCLT provide the substantive or material grounds for termination or
suspension of a treaty. The ICJ affirms that the rules laid down by the Vienna Convention on
the Law of Treaties concerning termination of a treaty relationship on account of breach, may
in many respects be considered as a codification of existing customary law on the subject (see
the Namibia Advisory Opinion of 1971, p. 47).

Note that articles 60-62 VCLT provide three options to justify unilateral termination of a
treaty:
1. inadimplenti non est adimplendum;
2. force majeure;
3. rebus sic stantibus;
The first one being the actual "material breach" by the other contracting party.

2. Material grounds for termination or suspension of a treaty and Gabkovo-


Nagymaros Does Hungary's termination of the 1977 Treaty between Hungary and
Czechoslovakia, meet the requirements under Article 60 to 62 VCLT? This is the main
question in the G-N case, for Hungary invokes no less than five grounds in an attempt to
justify its unilateral termination of the Treaty.

These grounds are, in no particular order: a state of necessity, material breach of the treaty by
Czechoslovakia, impossibility of performance of the treaty, a fundamental change of
circumstances and the development of new norms of international environmental law. Before
I am going to discuss the state of necessity, I will highlight the three material grounds that are
covered by art. 60-62 VCLT.

2.1. Inadimplenti non est adimplendum (art. 60 VCLT)


A material breach of a bilateral treaty by one of the parties entitles the other to invoke the
breach as a ground for terminating or suspending the treaty, art. 60 (1). A material breach is,
as follows from
art. 60(3)(a)(b):
a. a repudiation of the treaty not sanctioned by the present Convention;
b. the violation of a provision essential to the accomplishment of the object or purpose of the
treaty.

In the Gabikovo-Nagymaros case, the Court has to decide on whether Hungary's invocation
of material breach by Czechoslovakia is justified:

http://rechtenadvies.blogspot.nl/ and http://pilstudy.blogspot.nl/


(international)
It is up to the Court to decide, whether there has been a material breach, rather than just a
grave breach:
The Court is of the view that it is only a material breach of the treaty itself, by a State party to
the treaty, which entitles the other party to rely on it as a ground for terminating the treaty.
The violation of other treaty rules of general international law may justify the taking of certain
[counter]measures by the injured State, but it does not constitute a ground for termination
under the law of treaties (para 106);
Hungary, by its own conduct, had prejudiced its right to terminate the Treaty; this would still
have been the case even if Czechoslovakia, by the time of the purported termination, had
violated a provision essential to the accomplishment of the object and purpose of the Treaty
(para 110).

The material breach must have taken place in order to justly invoke such breach:
Hungary's main argument for invoking a material breach of the Treaty was the construction
and putting into operation of Variant C [by Czechoslovakia]. As the Court has found,
Czechoslovakia violated the Treaty only when it diverted the waters [...]. Czechoslovakia did
not act unlawfully in constructing the works that would lead to the putting into operation of
Variant C.
In the Court's view, the notification of termination by Hungary was premature. No breach of
the Treaty had yet taken place and Hungary was, therefore, not entitled to invoke such breach
as a ground for termination (para 108).

Czechoslovakia has breached its treaty obligations, but only when putting Variant C into
operation (para 78 and 82). The preparations on the territory of Czechoslovakia had not yet
led to a material breach, therefore, Hungary's invocation of a material breach by Czech. was
premature. Thus, the Court rejects the invocation of material breach/ inadimplenti by
Hungary.

2.2 Supervening impossibility of performance (art. 61 VCLT) (force majeure/ Act of


God)
As described by Article 61 VCLT, a party may invoke the impossibility of performance as a
ground for termination of a treaty, if the impossibility results from the permanent
disappearance or destruction of an object, indispensable for the execution of the treaty. A
temporary impossibility is not sufficient for termination of the treaty. If the impossibility of
performance results from that party's own breach, the ground of supervening impossibility
may not be invoked (art. 61 (2) VCLT). Judging the G-N case, this means that Hungary was
not entitled to invoke Article 61 para 1 VCLT, for the impossibility of performance stems
from Hungary's own "omission" (para 102-103). In other words, this ground implies a mere
"Act of God".

2.3. Rebus sic stantibus: fundamental change of circumstances (art. 62 VCLT)


A fundamental change of circumstances with regard to those existing at the time of the
conclusion of the treaty, which was completely unforeseen by the parties, may not be invoked,
para 1, unless:
a. the existence of those circumstances constituted an essential basis of the consent of the
parties to be bound by the treaty;
b. the effect of the change is radically to transform the extent of obligations still to be
performed.

You'll have noticed the essential grounds for invoking a fundamental change of

http://rechtenadvies.blogspot.nl/ and http://pilstudy.blogspot.nl/


(international)
circumstances: the circumstances have to be fundamentally different, compared to the original
circumstances at the time of the conclusion, and the change itself has to be completely
unforeseen by either of the parties. Minor changes that do not relate to the consent to be
bound or to the obligations to be performed, cannot justify the invocation of a fundamental
change. A de facto material breach may be invoked.

In G-N, the Court recalls the Fisheries Jurisdiction case on Article 62 of the VCLT. As
Hungary argued, the events which would have constituted a fundamental change, were
specified as profound changes of a political nature, the Project's diminishing economic
viability, the progress of environmental knowledge and new norms of environmental law.
In the Court's view, the prevalent political conditions were thus not so closely linked to
the object and purpose of the Treaty, that they constituted an essential basis for the consent of
parties and, in changing, radically altered the extent of obligations still to be performed. The
profitablity of the Project was not bound to such an extent that the obligations of the parties
would have radically transformed as a result. The development of environmental knowlegde
and law cannot be said to have been completely unforeseen. The changed circumstances
advanced by Hungary are not of such a nature, that their effect would radically transform the
extent of the obligations to accompish Project G-N. Article 62 of the VCLT is a clear
indication that the plea can only apply in exceptional cases (para 104).

3. State of necessity (art. 33 (now: 25) of the Draft Articles on State Responsibility)
Not under the scope of the VCLT, but under the scope of the International Responsibility of
States, the Court will consider the question of whether there was a state of necessity which
would have permitted Hungary to suspend and abandon works that it was commited to
perform in accordance with the Treaty.

A state of necessity may be invoked if:


a. the act was the only means of safeguarding an essential interest of the State against a grave
and imminent peril;
b. the act did not seriously impair an essential interest of the State towards which the
obligation existed.

In the G-N case, the Court considers, first of all, that the state of necessity is a ground,
recognized by customary internationa law for precluding the wrongfulness of an act not in
conformity with an international obligation. Such ground can only be accepted on an
exceptional basis. The state of necessity can only be invoked under certain strictly defined
conditions which must be cumulatively satisfied. The State concerned is not the sole judge of
whether those conditions have been met (para 51-52).
The Commission indicated that one should not, in [..] context, reduce an "essential
interest" to a matter only of the "existence" of the State and that the whole case has to be
judged in the light of the particular case (para 53) (i.o. words: the existence has to be
objective) .
However serious the uncertainties might have been, they could not, alone, establish the
objective existence of a "peril" in the sense of a component element of a state of necessity.
The mere apprehension of a possible peril could not suffice. The extremely grave and
imminent peril must have been a threat to the interest at the actual time (para 54).
Considering the situation at Nagymaros (Hungary), the Court notes that the dangers were
mostly of a long-term nature and, above all, that they remained uncertain. The peril invoked
by Hungary had already materialized to a large extent for a number of years, so that it could
not, in 1989, represent a peril arising entirely out of the G-N Project. Even if the construction

http://rechtenadvies.blogspot.nl/ and http://pilstudy.blogspot.nl/


(international)
of the G-N Project would have created serious risks, Hungary had means available to it, other
than suspension and abandonment of the works, of responding to that situation (para 55).
However grave it might have been, it would accordingly have been difficult to see the
alleged peril as sufficiently certain and therefore "imminent" in 1989 . Hungary should have
resorted to other means in order to respond to the dangers that it apprehended. In particular,
within the framework of the original Project, Hungary seemed to be in position to control
(para 56).
At the time of concluding the Treaty, Hungary was presumably aware of the situation as
then known, when it assumed its original obligations. The Court cannot fail to note the
positions taken by Hungary after the entry into force of the 1977 Treaty. Hungary asked that
the works should go forward more slowly, then asked for the works to be speeded up, only to
suspend and abandon them three months later.

The conclusion is that Hungary would not have been permitted to rely upon the state of
necessity in order to justify its failure to comply with its treaty obligations, as it had helped,
by act or omission, to bring it about (para 57).

On state responsibility: internationally wrongful acts and case law (Tadi,


Nicaragua, 2007 Genocide case)

Crawford provides us with an accurate description of the rationale behind state responsibility:
"State responsibility results from the general legal personality of States under international
law and the fact that States are principal bearers of international obligations".

As Crawford continues, "What amounts to a breach of international law by a State depends on


the actual content of that State's obligations , and this varies from one State to the next". Of
importance is the remark that "..the underlying concepts of State responsibility- attribution,
breach, excuses and consequences- are general in character". Would you like to read this full
article, a copy is available from the Max Planck Institute/ Oxford PIL.

Two of the mentioned underlying concepts or basic principles of state responsibility are that
states can be held responsible for acts that are attributable to them and that states can be held
responsible for internationally wrongful acts.

1. Internationally wrongful acts


According to Art. 2 of the Articles on the Resonsibility of States for Internationally Wrongful
Acts (ILC, some prefer to use the abbreviation ASR or A on RS), there is an internationally
wrongful act of a State when conduct consisting of an action or omission:

a. is attributable to the State under international law and;


b. constitutes a breach of an international obligation of the State.

1.1. Breach of obligations


There is a breach of an international obligation by a State, when an act of that State is not in

http://rechtenadvies.blogspot.nl/ and http://pilstudy.blogspot.nl/


(international)
conformity with what is required of it by that obligation, regardless of the origin of its
character (art. 12 ILC).

1.2. Attribution of conduct to a State: overview of the most important cases


a. Organs of a State (art. 4 ILC)
The conduct of any State organ shall be considered an act of that State under international
law, whether the organ exercises legislative, executive, judicial or any other functions;
b. Persons or entities exercising elements of governmental authority (art. 5 ILC)
The conduct of a person or entity, not being an organ of the State under article 4 but which is
empowered by the law of that State to exercise elements of governmental authority shall be
considered an act of the State, provided that the person/ entity is acting in that capacity;
c. Ultra vires (art. 7 ILC)
A State can be held responsible for excess of authority or contravention of instructions by
organs of the State or persons/ entities empowered to exercise elements of governmental
authority;
d. Conduct directed or controlled by a State (art. 8 ILC)
If a 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, the conduct shall be considered an act of that
State;
e. Conduct of an Insurrectional or other movement (art. 10 ILC)
The conduct of an inssurectional movement which becomes the new government of a State,
shall be considered an act of that State. Shall the insurractional movement succeed in
establishing a new State in part of the territory, the conduct of that movement shall be
considered an act of the new State under international law;
f. Conduct acknowledged and adopted by a State as its own (art. 11 ILC)
Conduct which is not attributable to a State under the preceding articles, shall nevertheless be
considered an act of that State, if and to the extent that the State acknowledges and adopts the
conduct in question as its own.

2. International law cases on attribution of conduct to States


2.1. United States Diplomatic and Consular Staff Judgment and Merits of 24 May 1980
The Court made it clear that the detention of internationally protected persons cannot be
considered as something "secondary" or "marginal", having regard to the principles involved
(para 36).
The facts, set out earlier in the judgment, have to be looked at by the Court from two points
of view. First, it must determine how far, legally, the acts in question may be regarded as
imputable to the State. Secondly, it must consider their compatibility or incompatibility with
the obligations under treaties in force, or any other rules of international law that may be
applicable. The events fall into two phases (para 56).
With regards to the first phase, no suggestion had been made that the militants, when they
executed their attack, had any form of official status as recognized "agents" or organs of the
State. Their conduct cannot, therefore, be regarded as imputable to the State on that basis. The
information does not suffice to establish the existence at that time, of such a link between the
militants and any competent organ of the State (para 58).
Other subsequent statements of approval, though highly significant in another context
shortly to be considered, do not alter the initially independent and unofficial character of the
attack (para 59).
The conclusion just reached by the Court, that the attack cannot be considered as in itself
imputable to the State, does not mean that the State is in fact free of any responsibility, for its
own conduct was in conflict with its international obligations- by a number of provisions

http://rechtenadvies.blogspot.nl/ and http://pilstudy.blogspot.nl/


(international)
under the Vienna Convention of 1961 and 1963, the State was placed under the most
categorical obligations as a receiving State, to take appropriate steps to ensure
protection (para 61).
Thus, after solemny proclaiming the inviolability of the premises of a diplomatic mission,
Art. 22 of the 1962 Convention continues: "The receiving State is under a special duty to
take all appropriate steps to protect [..] ". In the view of the Court, the obligations here in
question are not merely contractual obligations, but also obligations under general
international law (para 62).
This inaction by itself constituted clear and serious violation of the obligations under a
number of provisions (para 66, 67). The Court is therefore led to conclude, in regard to the
first phase, that the authorities:
a. were fully aware of their obligations; b. were fully aware of the urgent need for action on
their part; c. had the means at their disposal to perform their obligations; d. completely failed
to comply with these obligations (para 68).
The second phase of the events comprises the whole series of facts with followed during
the completion. The action required of the Government by the Vienna Convention and by
general international law, was manifest. Its plain duty was at once to make every effort [...]
(para 69).
The seal of official government approval was finally set by a decree (para 73). The result of
that policy was fundamentally to transform the legal nature of the situation. The approval
given by organs of the State and the decision to perpetuate the mentioned facts, translated the
acts into acts of that State. The authors of the invasion had now become agents of the State,
for whose acts the State itself was internationally responsible (para 74).
What is more to say (M.B.): in the present case, the Government did not break off
diplomatic relations. At no time before the events had the Government declared or indicated
any intention to declare, any member of the diplomatic staff persona non grata. The
Government did not, therefore, employ the remedies placed at its disposal. The receiving
State may at any time and without having to explain its decision, notify the sending State that
any particular member of its mission is persona non grata (para 87, 85).

2.2. Military and paramilitary activities in and against Nicaragua, Judgment of 27 June
1986
The Court provides a very strict criterion to decide whether the US could be held responsible
for military and paramilitary operations in the course of which the alleged violations were
commited. For this conduct to give rise to legal responsibility, it would in principle have to be
proved that that State had effective control (para 115).
In the view of the Court, while the arming and training of the contras can certainly be said to
involve the threat or use of force, this is not necessarily so in respect of all the assistance
given by the US. The mere supply of funds does not in itself amount to a use of force (para
202).

2.3. Dusko Tadi , ICTY Appeals Chamber, 15 July 1999


The strict "effective control" test is a far cry from the test as formulated in the Dusko Tadi
case. The ICTY applied the test of "overall control": for the attribution to a State of acts of
[mentioned] groups, it is sufficient to require that the group as a whole be under the overall
control of the State. If an organised group is under the overall control of a State, it must
perforce to engage the responsibility of that State for its activities, whether or not each of
them was specifically imposed, requested or directed by the State. The Youmans case with
regard to State responsibility for acts of State military officials should hold true for acts of
organised groups over which a State exercises overall control (paras. 120-123).

http://rechtenadvies.blogspot.nl/ and http://pilstudy.blogspot.nl/


(international)
The Appeals Chamber adds: "The degree of control may, however, vary according to the
factual circumstances of each case. The Appeals Chamber fails to see why in each and every
circumstance international law should require a high threshold for the test of control". In para
132 the AC considers that "In order to attribute the acts of a military or paramilitary group to a
State, it must be proved that the State wields overall control over the group [..]. However, it is
not necessary that, in addition, the State should also issue, either to the head or to members of
the group, instructions for the commission of specific acts contrary to international law".

2.3.1. Difference in outcome Nicaragua and Tadic: fragmentation and proliferation


The difference in outcome between the Nicaragua and Tadi is best explained as a divergence
between the ICJ and ICTY. According to Benedict Kingsbury, on one hand the phenomenon of
fragmentation of international law, is the result of uncoordinated and functional development
of regimes in international law, meaning that different regimes have developed from a focus
on "problem-solving" within the scope of a certain regime- a good example is environmental
law. Functional necessity, therefore, undermines the coordinated development of regimes in
international law.

On the other hand, proliferation refers to the uncoordinated rise of judicial bodies, with the
diversification of international law underlying the establishment of numberous and different
courts, not only for specific topics, but also regional. The "overall control" test, developed by
the ICTY, is not in conformity with the previous "effective control" test, applied by the ICJ.
To address this divergence, it is the proliferation of the ICJ and ICTY that leads to further
fragmentation in the interpretation of public international law.

2.4. Bosnia and Herzegovina vs. Serbia and Montenegro Genocide Judgment of 2007
In response to the Tadi doctrine as was adopted by the ICTY, the Court notes that the "overall
control" test has the major drawback of broadening the scope of State responsibility well
beyong the fundamental principle governing the law of international responsibility (that is, a
State's responsibility can be incurred for acts commited by persons or groups only if,
assuming those acts are internationally wrongful, they are attributable to it under the rule of
customary international law, reflected in Article 8 of the ILC Articles on State Responsibility.
In this regard, the "overall control" test is unsuitable, for it stretches too far, almost to a
breaking point, the connections which must exist between the conduct of a State's organs and
its international responsibility (para 404, 406).

3. Conclusion
In the Diplomatic Staff case of 1980, there was a breach of obligations and certain provisions
were violated. The receiving State had previously agreed upon a special duty to take all
appropriate steps to protect the diplomatic staff, yet failed to do so in the first phase. In the
second phase, it became clear that the approval, given by the authorities, had transformed acts
by individuals into acts of the State. In legal terms, Article 11 of the ILC Articles on State
Responsibility is applicable to this case: the conduct, which was originally not attributable to
the State, shall be considered an act of the State because of the acknowledgement of the
conduct by the State in question.
The Tadi case shoves the 1986 Nicaragua "effective control" test aside and replaces it with
an "overall control" test. According to the Court in the Srebrenica Genocide Judgment of
2007, the
"Tadi doctrine" is unsuitable, for it stretches too far the connections between the conduct of a
State's organs and its responsibility. That means, the causality between the act of an indidiual,

http://rechtenadvies.blogspot.nl/ and http://pilstudy.blogspot.nl/


(international)
group or organ and the responsibility of the State for an internationally wrongful act, is too
distant.

4. Circumstances precluding wrongfulness

a. Consent (art. 20 ILC/ ASR)


It goes without saying, that no internationally wrongful act can exist as long as another State
has given valid consent;
b. Self-defence (art. 21 ILC/ ASR)
The wrongfulness is precluded if an act of self-defence is in conformity with art. 2(4) of the
UN Charter, which means that the State should refrain from threat of force;
c. Countermeasures in respect of an internationally wrongful act (art. 22 ILC/ ASR).
The countermeasures should be in accordance with articles 49 to 54 of the ILC on State
Responsibility. Note that proportionality is an essential criterion;
d. Force majeure (art. 23 ILC)
The wrongfulness of an act of a State, not in conformity with its obligations, is precluded if
the act is due to the occurence of an irresistible force or an unforseen event, beyond the
control of the State, making it impossible to perform the obligations. Take note of the
provisions in paragraph 2 (a)(b);
e. Distress (art. 24 ILC)
Distress differs from force majeure, in this sense that the author of the act has had no other
reasonable way of saving lives, but mind paragraph 2 (a)(b);
f. Necessity (art. 25 ILC)
As was clear from the Gabcikovo case, necessity may be invoked to preclude the
wrongfulness of an act, if:
a. the act was the only way to safeguard an essential interest against a grave and imminent
peril;
b. does not seriously impair an essential interest of the State toward which the obligation
exists.

5. Legal consequences of an internationally wrongful act


As the General principles show, the legal consequences of an internationally wrongful act do
not affect the continued duty of the responsible State to perform the obligation breached (art.
29 ILC of the ASR). The State is under an obligation of cessation and non-repetition (art. 30
ILC). Also, the responsible State is obliged to make full reparation for the injury caused by
the wrongful act (arr. 31 ILC).

5.1. Reparation for injury

a. Restitution (art. 35 ILC of ASR)


A State can be held responsible to make restitution, provided and to the extent that restitution
is not materially impossible and does not involve a burden out of all proportion to the benefit
deriving from restitution instead of compensation;
b. Compensation (art. 36 ILC)
Insofar damage is not made good by restitution, the responsible State is under an obligation to
compensate for the damage caused by an internationally wrongful act. The compensation shall
cover any financial damage, including loss of profits;
c. Satisfaction (art. 37 ILC)
Insofar the injury cannot be made good by restitution or compensation, the responsible State
is under an obligation to give satisfaction, which may (para 2) consist in an acknowledgement

http://rechtenadvies.blogspot.nl/ and http://pilstudy.blogspot.nl/


(international)
of the breach, an expression of regret, a formal apology or another appropriate modality.
Satisfaction shall not be out of proportion to the injury and may not take a form humiliating to
the responsible State.

As the lives of two jailers in the LaGrand case could not be recovered, the responsible State
was obliged to give a combination of compensation and satisfaction. In the Gabcikovo case,
both parties could be held responsible for the injuries caused and therefore, both States could
claim compensation. In the Chorzw factory case, both restitution and compensation are
expressly mentioned as classic forms of reparation for injuries. One form of reparation doesn't
set the other possible form aside, as the LaGrand case shows.

Thus, assuming that there is an internationally wrongful act, (1) when conduct consisting of
an action or omission (2) is attributable to a State and (3) constitutes a breach of an obligation
of that State, that State is, under any circumstances:
a. always obliged to continue the performance of the duty of the obligation breached;
b. obliged to cessation and non-repetition;
c. obliged to make full reparation, consisting of either restitution, compensation or
satisfaction, or a combination of forms of reparation for injuries.

Use of force as a means of self-defence

1.1. Letter from Mr. Webster to Lord Ashburton, 6 August 1842


"Undoubtedly it is just, that while it is admitted that exceptions growing out of the great law
of self-defence do exist, those exceptions should be confined to eases in which the necessity
of that self-defence is instant, overwhelming, and leaving no choice of means, and no moment
for delibaration" (copy available from Yale, Avalon Project)

This clear and concise statement, the "Caroline test", provides the classic requirements for the
invocation of self-defence. Before determining how the Caroline test applies to reactive self-
defence and anticipatory self-defence, I am going to discuss the general prohibition of use of
force under international law.

1.2. General prohibition of use of force and exceptions


The use of force is generally prohibited, as expressed in Article 2 (4) of the UN Charter. The
right of self-defence as an exception is laid down in Article 51 of the UN Charter:

"Nothing in the present Charter shall impair the inherent right of individual or collective self-
defence if an armed attack occurs against a Member of the United Nations, until the Security
Council has taken measures necessary to maintain peace and security".

Note that "measures taken by Members in the exercise of this right of self-defence shall be
immediately reported to the Security Council".

The other exception to the general prohibition of use of force, is authorization by the UN
Security Council, as Art. 42 UN Charter reads. As the last sentence of Article 51 UN Charter
makes clear, the Security Council may at any time take action, if deemed necessary in order to
maintain or restore international security.

1.3. Self-defence (Art. 51 UN Charter)

http://rechtenadvies.blogspot.nl/ and http://pilstudy.blogspot.nl/


(international)
According to the definition as laid down in Article 51 UN Charter, for self-defence to be
justified, an attack must have occurred; furthermore, the attack must have been an armed
attack. It is not to say that an "attack" as meant in para 74 of the Diplomatic and Consular
Staff case of 1980 cannot qualify as an "armed attack", or that the deliverance of arms in para
195 of the Nicaragua case justifies the invocation of self-defence in accordance with Art. 2 (4)
of the UN Charter.

When is Art. 51 of the UN Charter applicable? As the International Court concludes, "the
most grave forms of the use force (those constituting an armed attack) must be distinguished
from other less grave forms", see para 191 of the Nicaragua case.

Assuming that an armed attack (1) has occurred, the requirements of necessity (2) and
proportionality (3) must be met (see also: Nicaragua, para 194; Threat or use of nuclear
weapons, para 41; Oil Platforms, para 74).

1.3.1. Customary international law


As can be learned from paras 41-44 from the Threat or use of nuclear weapons Advisory
Opinion 1996, the submission of the exercise of the right of self-defence to the conditions of
necessity and proportionality, is a rule of customary international law. As stated in the
Nicaragua case, there is a "specific rule whereby self-defence would warrant only measures
which are proportional to the armed attack and necessary to respond to it, a rule well
established in customary law"(para 176 Nicaragua).

1.3.2. Reservations by the US do not obstruct the application of customary law


(Nicaragua)
The Court does not consider that it can be claimed that all the customary rules which may be
invoked, have a content exactly identical to that of the rules contained in the treaty which
cannot be applied by virtue of the US reservation. Nor can the multilateral treaty reservation
be interpreted as meaning that, once applicable to a given dispute, it would exclude the
application of any rule of customary law (para 175). Even if the customary norm and the
treaty norm were to have exactly the same content, the incorporation of the customary norm
into treaty-law must not deprive the customary norm of its applicability (para 177).

However, the jurisdiction of the Court was limited in the Nicaragua and Oil Platforms cases,
for the US had terminated the acceptance of the Court's jurisdiction. It did so by making a
"multilateral treaty reservation"; when judging a dispute concerning multilateral treaties, as is
the UN Charter, the Court could only apply norms of customary international law.

1.3.3. Armed Activities: use of force only justified within strict confines
What could, thus, be said about the difference between the UN Charter and customary
international law regimes on the use of force? One main case where the ICJ could actually
apply the provisions of the UN Charter is the Armed Activities Judgment (Congo vs. Uganda).
The Court has found that:

"The prohibition against the use of force is a cornerstone of the UN Charter. Article 51 of the
UN Charter may justify a use of force in self-defence only within the strict confines there laid
down. It does not allow the use of force by a State to protect perceived security interests
beyond these parameters. Other means are available to a concerned State, including recourse
to the Security Council" (para 148).

http://rechtenadvies.blogspot.nl/ and http://pilstudy.blogspot.nl/


(international)
1.3.4. State responsibility and the right to invoke self-defence
Art. 51 of the UN Charter does not expressly require that, for the right to to invoke self-
defence, an occurred armed attack is attributable to another state. However, the Nicaragua
case, the Armed Activities on the Territory of Congo Judgment, the Tadic case and Genocide
case have questioned whether or not states can be held responsible for acts by non-state
actors.

The effective control test was developed in the Nicaragua case: "For this conduct to give rise
to legal responsibility of the US, it would have to be proved that the State had effective
control [..]. The Court does not consider that the assistance given by the US [..] are imputable
to that State" (paras 115, 116).

In the Armed Activities (Congo vs. Uganda, 2005) Judgment, the ICJ stated that "it did not
find the acts by a rebel group could be attributable to Uganda, although providing training and
support to a rebel group may violate obligations of customary international law" (para 161,
162). "While Uganda claimed to have acted in self-defence, it did not ever claim that it had
been subjected to an armed attack by the armed forces of the DRC. (paras 146, 147).

A looser test than the "effective control" test was applied by the ICTY in the Tadic case of
1999:
an "overall control" test should suffice (paras 120-122 and 131, 132). This "overall control"
test was rejected by the ICJ in the Genocide case of 2007 (Bosnia and Herzegovina vs. Serbia
and Montenegro), for it stretched too far the connection which must exist between the conduct
of a State's organs and its responsibility (para 406).

Can a state invoke the right of self-defence against non-state actors, assuming that their
conduct cannot be attributable to a state? That is a controversial question, but not a
hypothethical one.
It is rather unsure whether the traditionalist approach in the Nicaragua, Congo and Genocide
still applies, when in practice the right to invoke self-defence against non-state actors is no
longer categorically rejected.

2. Requirements of necessity and proportionality


The necessity of self-defence has to be determined by applying the "Caroline test", as derived
from the letter from Webster to Ashburton: instant, overwhelming, leaving no choice of means
and no moment for delibaration. Assumed that an act of self-defence meets the criterion of
necessity, there is another condition of importance: the time between an armed attack and the
measures taken to exercise the right of self-defence. On the question of necessity, the Court in
the Nicaragua case observes that:

"The US measures taken, cannot be said to correspond to a "necessity" justifying the action
[..]. First, these measures were only taken several months after the major offensive. [..]
Finally, the Court must also observe that the reaction of the US (in the context of what it
regarded as self-defence) was continued long after the period in which any presumed attack
by Nicaragua could reasonably be contemplated" (para 237).

Proportionality. Although the invocation of self-defence had already failed in the Oil
Platforms case of 2003, the Court states in para 77 that:

"Had the Court found that it [the attack] was necessary in response to the Sea Isle Incident as

http://rechtenadvies.blogspot.nl/ and http://pilstudy.blogspot.nl/


(international)
an armed attack [..] have been considered proportionate. The Court cannot close its eyes to the
scale of the whole operation, which cannot be regarded as a proportionate use of force in self-
defence".

3. Anticipatory self-defence and the Caroline test: an imminent threat?


Anticipatory self-defence refers to the situation where measures are to be taken, although an
armed attack by another state has not yet occurred. The Caroline test must again be applied,
now to decide whether an imminent threat justifies anticipatory self-defence. The 2005 Report
of the Secretary-General of the UN confirms that the existence of an imminent threat has to be
assessed along the line of the main requirements "instant and overwhelming" and "leaving no
other means or a moment for deliberation".

Is preventive self-defence permitted? The Secretary-General of the UN has stated in 2003


that, regarding preventive self-defence, "This logic represents a fundamental challenge to the
principles in which, however imperfectly, world peace and stability have rested for the last
fifty-eight years. My concern is that, if it were to be adopted, it could set precedents that
resulted in a proliferation of the unilateral and lawless use of force, with or without
justification". The conclusion could thus be that permitting preventive self-defence would be
incompatible with the object and purpose of the general prohibition of use of force as laid
down in Article 2(4) of the UN Charter (and as reflected by customary international law).

3.1. UN Charter vs. customary international law (Caroline test)


While measures taken in either reactive or anticipatory self-defence would have to comply
with the requirements of necessity and proportionality, Art. 51 of the UN Charter stipulates
that self-defence can only be invoked after the occurrence of an armed attack.

The Caroline test, formulating the requirements of customary international law, leaves the
possibility that one invokes a state of necessity if an imminent threat has been established, the
necessity of the self-defence is instant and a state has no other means left to it than a use of
force. Both the necessity and proportionality principle imply that states have to confine
themselves to repelling the attack(er)- self-defence cannot be invoked in order to pursue or
impose punishment on the attacker.

4. Collective self-defence
Article 51 of the UN Charter applied to both individual and collective self-defence. A state
may use force in the defence of an attacked state, provided that the attacked state has made a
request to other states to engage in collective self-defence.

As expressed in the Oil Platforms Judgment, "..The US has not claimed to be exercising
collective self-defence on behalf of the neutral States engaged in [...]; this would have
required the existence of a request made to the US by the State which regards itself as the
victim of an armed attack" (para 51).

In the Nicaragua case, it is set out that "The exercise of the right of collective self-defence
presupposes that an armed attack has occurred. It is [also] evident that if the victim State
wishes another State to come to its help in the exercise of the right of collective self-defence,
it will normally make an express request to that effect" (para 232). There is no rule permitting
the exercise of collective self-defence in the absence of a request by the State which regards
itself as the victim of an armed attack (paras 199, 200).

http://rechtenadvies.blogspot.nl/ and http://pilstudy.blogspot.nl/


(international)
Summary: use of force as a means of self-defence

Before considering whether the right to exercise self-defence justifies any measures taken by
a State, let's take at look at the general rule of international law regarding the use of force. The
general prohibition of the use of force is provided by Article 2 para 4 of the UN Charter. Two
exceptions to this prohibition are (1) authorization by the UN Security Council (Article 42
UN Charter) and (2) self-defence (Article 51 of the UN Charter).
As can be learned from the Advisory Opinion on the Threat and Use of Nuclear
Weapons from 8 July 1996, paragraph 41, the submission of exercise of the right of self-
defence to conditions of necessity and proportionality, is a rule of customary international law.
Referring to the Nicaragua case, the ICJ states that "there is a specific rule whereby self-
defence would warrant only measures which are proportional to the armed attack and
necessary to respond to it, a rule well established in customary international law", see also
paragraph 51 and paras 73-77 of the Oil Platforms case. The Oil Platforms case also makes
clear that the principle of necessity is a strict and objective condition that leaves States no
discretion.

Thus, the three requirements to invoke self-defence, (known as the "Caroline test") as can be
derived from the 1842 letter from Webster to Ashburton, are: the other state must have
performed an armed attack (1), self-defence was necessary to respond to it (2) and the self-
defence was proportionate (3) (see also, paras 229-237 Nicaragua). Moreover, Art. 51 of the
UN Charter requires that measures taken shall be reported to the Security Council
immediately.

Different regimes for the UN Charter and customary international law (Caroline test)?
While measures taken in either reactive or anticipatory self-defence would have to comply
with the requirements of necessity and proportionality, Art. 51 of the UN Charter stipulates
that self-defence can only be invoked after the occurrence of an armed attack.
The Caroline test, formulating the requirements of customary international law, leaves
the possibility that one invokes a state of necessity if an imminent threat has been established,
the necessity of the self-defence is instant and a state has no other means left to it than a use
of force. Both the necessity and proportionality principle imply that states have to confine
themselves to repelling the attack(er)- self-defence cannot be invoked in order to pursue or
impose punishment on the attacker.

Note that time is another condition of importance, as in the Nicaragua case, the measures
taken several months after the major offense, could not be said to "correspond to a necessity
justifying the action" (para 237).
Asssuming that any measures taken have not yet failed the necessity test, the next question
is, if the proportionality principle has been met. The Court states in the Oil Platforms case
that "the scale of the whole operation has to be judged in order to assess, whether the response
["self-defence"] was proportionate" (para 77).
A problem arises when an attack was performed by a non-state actor [rebel groups, for
instance]. Is their conduct attributable to a state? A strict, traditionalist approach was applied
in Nicaragua (demanding "effective control", paras 115-116), subsequently in Armed
Activities on the Territory of The Congo (paras 146, 147) and the Genocide case of 2007
(Bosnia and Herzegovina vs. Serbia and Montenegro, para 406).
Provided that a state has delivered arms to a rebel group (Nicaragua) and although
providing training and military support to a rebel group might violate customary international
law (Armed Activities Congo/ Uganda), the conclusion that follows from these cases is that

http://rechtenadvies.blogspot.nl/ and http://pilstudy.blogspot.nl/


(international)
State could not be held responsible and that the self-defence plea had to be rejected for these
reasons.
Not everything has been said yet. A lot of controversy still surrounds the question, whether
the right to self-defence could be invoked against non-state actors, assuming that their
conduct cannot be attributable to a state. It is rather unsure whether or not the traditionalist
approach still applies. Hence, in practice, the right to invoke self-defence against non-state
actors is no longer categorically rejected.

Immunity from foreign jurisdiction for States and HRSO

1.1. State immunity: par in parem non habet imperium


Codified in the UN Convention on Jurisdictional Immunities of States and Their Property
(abbreviated UNCSI), the rules on State immunity are of customary international law. Though
in issues governed by certain treaties like the 1972 European Convention, general customary
law does not apply. General customary law shall only be excluded when immunity issues
between member States of the European Convention arise.

As Article 5 of UNCSI reads:


"A State enjoys immunity, in respect of itself and its property, from the jurisdiction of the
courts of another State subject to the provisions of the present Convention".
Subsequently, Art. 6 obliges States to refrain from exercising jurisdiction before its court
against another State.

The underlying principle is that all States are sovereign and equal (as Article 2(1) of the UN
Charter puts it). Thus, the UNCSI solely applies to immunity from foreign jurisdiction: a State
could and should not be prosecuted before a domestic foreign court. Note that State immunity
is derived from State sovereignty, which relates to the rule that incumbent high-ranking State
officials are also immune from the jurisdiction of foreign States. States have legal personality,
therefore they enjoy immunity ratione personae: immunity from jurisdiction and enforcement.

1.2. Subjects of State immunity


For the purposes of the Convention on Jurisdictional State Immunities, a "State" means, Art.
2(1):
i. the State and its various organs of government;
ii. units of a federal State or political subdivisions which are entitled to perform acts in the
exercise of sovereign authority and are acting in that capacity;
iii. agencies " ";
iv representatives of the State, acting in that capacity.

From this follows that incumbent HRSO enjoy full immunity from foreign jurisdiction, a
result of the classic view on sovereign immunity, as discussed under para 1.1.

1.3. Relative immunity


A distinction is drawn between acta iure imperii (governmental acts) and acta iure gestionis.
States could not enjoy absolute immunity for their acta iure gestionis, see Art. 10(1) of
UNCSI:
"If a State engages in a commercial transaction with a foreign natural or juridical person [..]
the State cannot invoke immunity from that jurisdiction in a proceeding arising out of that
commercial transaction". Paragraph 1 does not apply in case of one of the exceptions,

http://rechtenadvies.blogspot.nl/ and http://pilstudy.blogspot.nl/


(international)
mentioned in the second paragraph of Art. 10.

How does one determine, whether a contract or transaction is an acta iure gestionis?
According to Article 2 of the UNCSI, reference should be made primarily to the nature of the
contract or transaction; however, its purpose should also be taken into account. The focus
shifts from the initial purpose of a transaction, to the nature of a transaction, to prevent States
from using the "veil" of acta iure imperii in order to escape their obligations by invoking full
immunity from foreign jurisdiction.

Other proceedings in which a State cannot invoke immunity, concern: contracts of


employment
(Art. 11), personal injuries and damage to property (Art. 12), ownership (Art. 13), intellectual
property (Art. 14) and so on, see Part III of UNCSI.

1.4. Waiver of immunity


No problems will arise when a State has expressly consented to the exercise of jurisdiction by
a foreign court, in the cases, mentioned in Article 7 of UNCSI. A State could be considered to
have consented to the exercise of a foreign court implicitly, as Article 8(1) makes clear, unless
paras 2-4 of Art. 8 UNCSI apply.

1.5. Jurisdictional Immunities of the State, ICJ 3 February 2012


Ferrini case: Germany v. Italy, Greece intervening
To an important extent, State immunity is based on the rules of customary international law,
as the ICJ sets out in paras 53-58 of the 2012 Immunities case.

State immunity does not imply that a State cannot be held responsible for its actions; as was
discussed before, State immunity solely implies that a State could not be prosecuted before a
domestic foreign court. See para 53: "The Court is not called upon to decide whether these
acts were illegal; the question for the Court is whether or not, in proceedings regarding claims
for compensation arising out of those acts, the Italian (domestic) courts were obliged to
accord Germany immunity". A State prosecuting another State, could in its turn be held
responsible for violating the right to invoke immunity from foreign jurisdiction.

1.5.1. Do the breach of ius cogens and territorial torts allow for denial of immunity?
Does customary international law prevent a State from lawfully invoking immunity in respect
of the "Territorial Tort Principle", even is an act on the territory of a forum State was
performed iure imperii? The Court considers it is not called upon in the present proceedings to
resolve the question, whether there is in customary law a "tort exception" to State immunity to
acta iure imperii in general (para 65).
The Court agrees that the result of Art. 31 of the European Convention as a clause, is that
the immunity of a State for the acts of its armed forces, falls out of the Convention and has to
be determined by reference to customary law.The consequence is, however, that the inclusion
of the "Territorial Tort Principle" cannot be treated as support for the argument that a State is
not entitled to immunity for torts, commited by its armed forces (para 68).
Moreover, State practice in the form of judicial decisions, supports the proposition that
State immunity for acta iure imperii continues to extend to civil proceedings for acts
occasioning [..] by the armed forces, even if the acts take place on the territory of the forum
State. That practice is accompanied by opinio iuris, as a number of national courts made clear
that customary law required immunity. The almost complete absence of contrary
jurisprudence is significant (para 77).

http://rechtenadvies.blogspot.nl/ and http://pilstudy.blogspot.nl/


(international)
The Court concludes that, under customary law, a State is not deprived of immunity by
reason of the fact that it is accused of serious violations of international human rights law. The
question of whether immunity might apply in criminal proceedings is, however, not an issue
in the present case (para 91).
As to the relationship between ius cogens and State immunity, the Court considers that
there exists no conflict between the two legal concepts, as the two sets of rules address
different matters. The rules of State immunity are procedural in character and are confined to
determining whether or not the courts of one State may exercise jurisdiction in respect of
another. They do not bear upon the question whether or not the conduct in respect of which
the proceedings are brought, was lawful or unlawful. Recognizing State immunity does not
amount to recognizing as lawful the breach of ius cogens and so cannot contravene the
principle in Article 41 of the ILC on State Responsibility
(para 93).

2. Immunity from jurisdiction for High-Ranking State Officials (HRSO)


As was set out above, the immunities in respect of HRSO are derived from the principle of
sovereign immunity; the immunities of a HRSO are interrelated with State immunity. As a
matter of fact, only a State can waive the immunity of an HRSO. An incumbent HRSO enjoys
both immunity ratione materiae and ratione personae. Note that, after a HRSO ceases to hold
the office, he or she will no longer hold all of the immunities. A State may try a former HRSO
in respect of acts committed in a private capacity (Arrest Warrant 2002, DRC Congo v.
Belgium, para 61).

2.1. Relevant considerations in the Arrest Warrant Judgment of 11 April 2002


Yerodia Ndombasi case, Congo v. Belgium

2.1.1. HRSO and full immunities, regardless of a official or private capacity


Certain holders of high-ranking office in a State enjoy immunities from jurisdiction in other
States, both civil and criminal. It is only the immunity from criminal jurisdiction and the
inviolability of an incumbent Minister for Foreign Affairs, that fall for the Court to consider
(para 51).
The rationale behind the immunity for HRSO is as follows. In customary
international law, the immunities accorded to [..] are not granted for their personal benefit, but
to ensure the effective performance of their functions on behalf of their respective States (para
53).
When abroad, a HRSO (as is a Minister for Foreign Affairs i.c.) enjoys full immunity
from criminal jurisdiction throughout the duration of his office [...] to protect the individual
against any act of authority by another State which would hinder him in the performance of
his duties (para 54).
In this respect, no distinction can be drawn between acts performed by a HRSO in an
"official" capacity, and those claimed to have been performed in a "private" capacity (para
55).

2.1.2. Considerations regarding Opinion ex parte Pinochet


According to Belgium, the Pinochet decision recognizes an exception to the immunity rule
when Lord Millett stated that "international law cannot be supposed to have established a
crime [..] or when Lord Phillips said that "no established rule of international law requires
state immunity ratione materiae to be accorded in respect of prosecution for an international
crime" (para 56).
The Congo cites Lord Browne-Wilkinson's statement that "this immunity, enjoyed by a

http://rechtenadvies.blogspot.nl/ and http://pilstudy.blogspot.nl/


(international)
head of state in power is a complete immunity, attached to the person of the head of state and
rendering him immune from all actions or prosecutions" (para 57).
The Court has been unable to deduce from [..] practice that there exists under
customary law, any form of exception to the rule according immunity from criminal
jurisdiction and inviolability to incumbent Ministers, where they are suspected of having
commited war crimes. The rules concerning criminal responsibility of HRSO likewise do not
enable to conclude that any such exception exists in customary law in regard to domestic
courts (para 58).

2.1.3. Is impunity a result of immunity?


It should be noted that the rules governing the jurisdiction of foreign courts must be
distinguished from those, governing jurisdictional immunities; jurisdiction does not imply
absence of immunity and absence of immunity does not imply jurisdiction. The obligations of
prosecution and extradition of serious crimes that are imposed on States, do in no way affect
immunities under customary law, including those of HRSO (para 59).
The immunity from jurisdiction enjoyed by HRSO does not mean that they enjoy
impunity in respect of crimes committed, as immunity from criminal jurisdiction and
individual criminal responsibility are quite separate concepts, the first being of a procedural
nature, the latter being a question of substantive law (para 60).
Acccordingly, the immunities enjoyed by an incumbent or former HRSO do not
represent a bar to criminal prosecution in certain circumstances. The Court nouns four
examples, the first being that jurisdictional immunity does not apply to trial in the domestic
court of the HRSO; subsequently, the waiver of immunity by the represented State will cease
the immunity from foreign jurisdiction; as mentioned, after a HRSO ceases to hold the office,
he will no longer enjoy immunity for his acts commited in private (para 61).

2.1.4. Jurisdiction of International Criminal Tribunals


One important remark is that International Criminal Tribunals can try HRSO in criminal
proceedings, as the Rome Statute in Article 27(2) provides that immunities of an incumbent or
former HRSO shall not bar the Court from exercising its jurisdiction over such a person.

3. X v. Bow Street Metropolitan Stipendary Magistrate, Ex parte Pinochet Ugarte (No 3)


3.1.1. Defining the scope
The ICJ reasoned in its Jurisdictional Immunities case (Ferrini) of 2012, that a clear
distinction should be made between State immunity and the criminal jurisdiction of a former
HRSO: "Pinochet concerned the immunity of a former Head of State from criminal
jurisdiction of another State, not the immunity of the State itself in proceedings to establish its
liability to damages"(para 87 Fellini case).

3.1.2 Could torture, committed by a former HRSO, be considered an official act?


Immunity ratione personae attaches to the office, meaning that a former HRSO cannot invoke
immunity with respect to acts committed in private during his time in office, while immunity
ratione materiae can be invoked for the official acts that have been committed during his time
in office.
Regarding the Pinochet case, it is important to note that "The Republic of Chile accepted
that the international law prohibiting torture, has the character of ius cogens or a peremptory
norm". Chile is a party to the Torture Convention (Convention Against Torture, CAT).
The question which has to be answered, is whether the alleged organisation of state
torture by Senator Pinochet (if proved) would constitute an official act, committed as a Head
of State. It is not enough to say that it cannot be part of his functions to commit a crime.

http://rechtenadvies.blogspot.nl/ and http://pilstudy.blogspot.nl/


(international)
Actions which are criminal under local law, can still have been done officially and therefore
give rise to immunity ratione materiae. Can it be said that the commission of a crime which is
an international crime against humanity and ius cogens, is an act done in an official capacity
on behalf of the state?
Under the CAT the international crime of torture can only be committed by an official [...]
If immunity applies, there can be no case outside of Chile in which a succesful prosecution
can be brought (unless the State is prepared to waive its right to its officials' immunity). One
of the main objectives of the CAT: universal jurisdiction over torture, committed by HRSO,
would be frustrated by upholding immunity for former HRSO. The notion of continued
immunity for former HRSO is inconsistent with the provisions of CAT.

Ius ad bellum & ius in bello: international humanitarian law

1. Ius ad bellum & ius in bello: Hague law and Geneva law
There is a distinction between ius ad bellum and ius in bello, the first regarding the waging of
war, the latter regarding warfare. Armed conflict is governed by the Hague law on one hand,
aiming to curb the conduct of hostilities, and Geneva law, aiming to protect the victims of an
armed conflict.
Both the Hague law and Geneva law are recognized as a fundamental part of customary
international law, as the Court states in para 79, 80 of the Nuclear Weapons Advisory Opinion
(a reference to the 1949 Corfu Channel case is made):

"It is undoubtedly [..] rules of humanitarian law applicable in armed conflict are so
fundamental to the respect of [..] "elementary considerations of humanity", that the Hague and
Geneva Conventions are to be observed by all States, whether or not they have ratified the
conventions that contain them, because they constitute intransgressible principles of
international customary law" (para 79). Furhermore, the Court notes that these principles of
humanitarian law are part of ius cogens (para 83).

From this follows that, regardless of the act of ratification by States, the rules codified in the
Hague and Gevena Conventions apply to armed conflict, because these conventions embody
the rules of customary international law.

1.2. The Hague law


Since the 1868 St. Petersburg Declaration, the Hague law has incorporated conventions to
outlaw certain types of weaponry, as the 1993 Chemical Weapons Convention is one of these
coventions being considered part of the Hague law.

1.3. Geneva Conventions and their Additional Protocols


The four Geneva Conventions are, in a particular order, as follows:
Convention I: protection of wounded and sick members of armed forces;
Convention II: protection of wounded, sick and shipwrecked members of armed forces at
sea;
Convention III: treatment of prisoners of war;
Convention IV: protection of civilians

The three additional protocols are:


AP I: detailed rules of protection of victims in international armed conflicts (IAC);
AP II: regulation of non-international armed conflicts (NIAC);

http://rechtenadvies.blogspot.nl/ and http://pilstudy.blogspot.nl/


(international)
AP III: rules on additional distinctive emblem of the red crystal

2. The scope of humanitarian law: defining an armed conflict


There has always been uncertainty on the precise scope of humanitarian international law.
Common Article 2 of the Geneva Convention provides that the Convention "shall apply to all
cases of declared war or any other armed conflict which may arise between two or more of the
High Contracting Parties, even if the state of war is not recognized by one of them".

Hence, the concept of an "armed conflict" has to be defined. The ICTY Appeals Chamber
does so in the 1995 Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction
in the Tadi case (2 October 1995): "..we find that an armed conflict exists whenever there is
a resort to armed forces between States or protracted armed violence between governmental
authorities and organized armed groups or between such groups within a State. Humanitarian
law extends beyond the cessation of hostilities" (para 70).

As you might have noticed, the threshold for a NIAC is higher than is the case with an IAC.
Humanitarian international law applies at the very moment of any act of force between States-
with respect to international humanitarian law, one could say it is "war at first shot", as
Common Article 2 of the Geneva Convention implicitly makes clear. NIACs, on the other
side, require "protracted or large-scale armed violence" for international humanitarian law to
be applicable.

2.1. Lotus doctrine and si omnes clause


The rationale behind this distinction is State sovereignty. International law would foremost be
applied in conflicts between States, or High Contracting Parties to the Conventions. A si
omnes clause has a very limited scope, stipulating that provions could only apply if States,
party to a conflict, were both parties to the convention that would be applied. According the
Lotus doctrine, only the specific prohibition of methods of warfare would govern interstate
conflicts; otherwise, much was permissible.

2.2. Martens' clause


, Fjodor Martens, designed the general savings clause. This
clause is included in Article 1(2) of AP I; furthermore, Common art. 2 of the Geneva
Convention expressly rejects the si omnes clause. It does so by stating "Although one of the
Powers [to a conflict] may not be a party to the present Convention.."
Note that paras 1-3 from Art. 60 of the VCLT do not apply to provisions relating to
humanitarian treaties, Art. 60(5) VCLT. This provision stresses the importance of international
humanitarian law: treaties concerning humanitarian law should not be terminated along the
line of material breach by another party.

3. Principles of humanitarian law


Four principles underlie the rules of international humanitarian law as expressed in the
conventions and additional protocols:
I. Principle of distinction;
II. Principle not to cause unnecessary suffering/ humanity principle;
III. Principle of military necessity and proportionality;
IV. Principle of precaution.

3.1. Principle of distinction


A distinction must be drawn between combatants ( defined by art. 43 of AP I) and civilians

http://rechtenadvies.blogspot.nl/ and http://pilstudy.blogspot.nl/


(international)
(defined by Art. 50 AP I). A civilian is any person who does not belong to one of the
categories referred to in Art. 4 (A)(1)(2)(3) and (6) of Convention III and art. 43 of AP I.
Unless they take direct part in hostilities, civilians shall enjoy protection (Art. 51 (3) AP I). As
Articles 48 (basic rule), 51(2) and 52(2) express, civilians cannot lawfully be made objects of
attack. Note that enemies hors de combat will be safeguarded by Art. 41 of AP I; Article 41(2)
AP I defines persons hors de combat which cannot be made objects of attack.

A combatant cannot be deprived of his right to be combatant, whether he has violated rules of
international law or not, Art. 44(2) AP I. Members of the armed forces of a Party to a conflict,
have the right to participate directly in hostilities, Art. 43(2) AP I. Any combatant as defined
in Art. 43, who falls into the power of an adverse Party, shall enjoy the prisoner-of-war-status,
Art 44(1) AP I. If a combatant fails to distinguish himself from civilians, Art. 44(3) AP I, he
will not enjoy the prisoner-of-war-status, Art. 44(4) AP I; however, he will be given the
equivalent of the protection accorded by Convention III and AP I. In order to garantuee as
much protection as possible to all categories of combatants and non-combatants, main rule
prescribes that anyone who cannot be considered a combantant in line with Art. 43 AP I, will
be considered a civilian, Art. 50 AP I.

Civilians that take part in hostilities, become objects of attack (Art. 51(3) AP I), but they will
not enjoy the status of prisoner-of-war when captured; if article 4 of Geneva Convention III
does not apply, Article 45(3) in conjunction with Article 75 AP I affords the person, who is not
entitled to prisoner-of-war-statues, the right to protection. Otherwise, Geneva Convention IV
may apply.
There is a difference between civilians taking part in organized hostilities and civilians
participating in leve en masse. The latter, spontaneously participating in non-organized
hostilities, do become prisoners-of-war in the event of being captured, Article 4A (6) of
Geneva Convention III.

Indiscriminate attacks are prohibited, Art. 51(4) and (5) AP I. Some conventions are designed
to expressly prohibit the use of certain weaponry, such as the 2010 Convention on Cluster
Munitions.

The Threat and use of nuclear weapons Advisory Opinion of 8 July 1996 discusses both the
principles of distinction and the principle not to cause unnecessary suffering in paras 95-97.
The Court's summary of the principles that constitute "the fabric of humanitarian law" is to be
found in para 78.

3.2. Principle not to cause unnecessary suffering (humanity)


Necessity cannot be invoked to justify military actions at any cost, as Martens' clause aims to
codify. The basic rules in Art. 35 of AP I stress this principle not to cause unnecessary
suffering as a result of warfare. From the application of Common Article 3 follows that the
humanity principle applies to NIACs as well.

Regarding Common Article 3, the ICJ notes in the Nicaragua case that:

"The importance of the principles that the Geneva Conventions and other relevant instruments
purport to codify is [..] demonstrated by Articles 63, 62, 142 and 158 of Geneva Conventions
I, II, III and IV respectively. These provisions allow for state parties to denounce the
conventions unilaterally. However, the denunciation: "Shall in no way impair the obligations
which the parties to the conflict shall remain bound to fulfil by virtue of the principle of the

http://rechtenadvies.blogspot.nl/ and http://pilstudy.blogspot.nl/


(international)
law of nations, as they result from the usages among civilized peoples, from the laws of
humanity and the dictates of public conscience" (para 218).

3.3. Principle of military necessity and proportionality


As the Court states in the Threat or use of nuclear weapons Advisory Opinion, it is prohibited
to use weapons causing the combatants unnecessesary harm, that is to say, a harm greater than
unavoidable to achieve legitimate military objectives (para 78).

The last sentence of Art. 51(5)(b) AP I classifies "attacks that are excessive in relation to the
military advantage anticipated" as indiscriminate and therefore prohibited.

To NIACs, customary international law imposes on parties to the conflict an equal obligation
to refrain from causing greater harm than unavoidable to achieve military objectives.

3.4. Principle of precaution


The principles of humanity and military necessity imply the principle to take precautionary
measures. In the conduct of military operations, Art. 57 AP I stipulates that constant care shall
be taken to spare civilians and civilian objects. While AP I does not apply to NIACs,
customary international law imposes on the parties to a NIAC the obligation to take
precautions in order to prevent unnessary suffering.

4. NIACs
4.1. Defining NIACs and the application of Common Art. 3
On deciding whether the armed conflict in the Tadi case could be considered an international
armed conflict, the Appeals Chamber in the Judgment of 15 July 1999 stated that "in order to
attribute the acts of military or paramilitary groups to a State, it must be proved that the State
wields overall control [..]" (para 131).

Although its scope is limited, Geneva Convention Common Art. 3 applies to NIACs. In the
Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction of 2 October 1995 in
the Tadi case, the ICTY Appeals Chamber makes clear that a higher threshold has to be
passed for an internal conflict to qualify as a NIAC (para 70).

In the Tadi trial of 7 May 1999, the ICTY Trial Chamber has set out which requirements
have to be met in order to pass the threshold for the application of rules regarding a NIAC:
"The test applied to the existence of an armed conflict for the purpose of the rules contained
in Common Article 3 focuses on two aspects of a conflict: the intensity of the conflict and the
organization of the parties to the conflict" (para 562).

4.2. NIACs and AP II


Many of the provisions of AP II represent customary international law. The threshold in
Additional Protocol II (which governs NIACs) can be derived from Article 1(1) AP II:

"..organized armed groups which, under responsible command, exercise such control over a
part of its territory as to enable them to carry out sustained and concerted military operations".

The scope of AP II is, thus, limited, as Article 1(2) AP II puts it: "This Protocol shall not apply
to situations of internal disturbances and tensions such as riots, isolated and sporadic acts of
violence."

http://rechtenadvies.blogspot.nl/ and http://pilstudy.blogspot.nl/


(international)
Like I noted before, the explanation for the restricted reading of the regulation of NIACs is
State sovereignty. Also, States might not want to qualify internal conflicts with armed (rebel)
groups as NIACs, for qualifying a conflict as such, implicitly means recognizing and
eventually legitimizing the existence and actions of those groups.

5. The value of humanitarian law


What is exactly the value of international humanitarian law? Although the (codification of)
customary international law aims to guarantee human rights and stems from universal human
ideals of what global society should be like, it goes to show that many (non-) state actors don't
live up to guarantee those rights. When non-State actors and States lack natural authority, one
could image well how these actors resort to the threat with or use of violence and how they
would rely on an arms race to scare off future, existent or imaginary enemies; living up to
their human rights commitments would be the last to be concerned about. In practice, non-
compliance is the rule rather than the exception. Even if all parties to a (human rights) treaty
give their consent to be bound, there will always be ambiguity when conflicts arise. That is
why many of the rules of international law apply in theory, but not in practice.

Recommended reading:
Typology of armed conflicts in international humanitarian law, S. Vit, March 2009;
International Humanitarian Law, H.P. Gasser, March 2011, available at Oxford PIL.

Jurisdiction of the ICC, ICTY/ ICTR and domestic courts

1. International Criminal Courts


1.1. Why is the prosecution of individuals for crimes against humanity, deemed
controversial?
The prosecution of war criminals by the Nuremberg Tribunal (IMT) made clear that the
category of "crimes against humanity" (the category of "violation of peace" alike) would
interfere with a state's sovereignty with respect to domestic jurisdiction and governmental
activities, such as the waging of war. Also, the category of "crimes against humanity" would
be contary to the universal principle "nullum crimen sine lege" (Art. 22 Rome), as no such
category of crimes was recognized before the IMT was set up.
The first international case to give rise to a wide recognition of individual responsibility for
war crimes, whether they were committed on an international scale or within the boundaries
of a state, was the Tadic case of the ICTY.

1.2. How is the jurisdiction of the ICC defined?


The jurisdiction ratione personae of the ICC is limited to individuals. The Court has
jurisdiction over natural persons pursuant to the Statute, according to Article 25 of the Rome
Statute. The International Criminal Court was established by the Rome Statute. The
jurisdiction of the ICC is based on the principle of complementarity, as Article 1 of the Rome
Statute reads. The primacy of domestic courts with respect to exercising jurisdiction over
crimes, implies that the ICC only has jurisdiction when a State is unwilling or unable
genuinely to carry out the investigation or prosecution, as Art. 17 ( Issues of admissibility) of
the Rome Statute makes clear.

1.2.1. material jurisdiction


The substantive component of international criminal law, making up the material jurisdiction,
consists of four core crimes, as Article 5 of Rome puts it: "The jurisdiction shall be limited to

http://rechtenadvies.blogspot.nl/ and http://pilstudy.blogspot.nl/


(international)
the most serious crimes of concern to the community as a whole. The Court has jurisdiction
with respect to: the crime of genocide, crimes against humanity, war crimes and the crime of
aggression".

1.2.2. core crimes


Conviction of the individual for committing core crimes, requires the fulfilment of actus reus
and mens rea. With respect to actus reus, the crimes of genocide, war crimes and crimes
against humanity are covered by articles 6-8 of the Rome Statute, the category of war crimes
being the most elaborate. For an individual to be prosectuted and ultimately convicted for the
crime of genocide, the decisive criterion is to be found in Article 2 of the Genocide
Convention: the requirement of an intent to destroy has to be met.

The ICTY in the Krsti (pronunciation: kerr-steech, a name that oddly translates as Mr. Cross-
stitch) case has set out that the term "in part", as meant in Article 3 of the Genocide
Convention, contains a substantiality requirement. The Trial Chamber determined that Krstic
had the intent to kill, thus, the requirements of Art. 4(2)(a) of the Rome Statute have been met
(para 598 case IT-98-33-T, Prosecutor v. Krsti). Although the ICTY Appeals Chamber in the
Judgment of 19 April 2004 acknowledges that the Trial Chamber should have exressed its
reasoning more carefully (para 22), the remark is made that the Trials Chamber was correct
when determining that the part of the group that has been killed, was "substantial" as with
respect to the crime of genocide.
In concluding that some members of the VRS Main Staff had intented to destroy this
substantial part of a group, the Trial Chamber did not depart from the legal requirements for
genocide (para 38).

For an individual to be prosecuted for crimes against humanity, a "specific intent" exists when
there is "knowledge of the attack". This is a less strict criterion than is the "intent to destroy"
requirement for prosecuting one for the crime of genocide.

How does one determine, however, when the individual has had the "intent to kill"? The
mental element as such, mens rea, is described in Article 30(2) of the Rome Statute of the
ICC: a person has intent where (a) in relation to conduct, that person means to engage in the
conduct; (b) in relation to a consequence, that person means to cause that consequence or is
aware that it will occur in the ordinary course of the events.

The grounds for excluding criminal responsibility are to be found in Articles 31 and 32 of the
Rome Statute. Article 33 provides possible grounds for the exclusion of criminal
responsibility; paragraph 1 gives a negative formula: "..shall not relieve that person of
responsibility, unless..." one of the three options in (a)(b)(c) applies.

1.2.3. temporal jurisdiction


The first of the general principles of criminal law, as laid down in part 3 of the Rome Statute,
define the temporal jurisdiction of the ICC: from "nullum crime sin lege", "nulla poena sine
lege" and the non-retroactivity ratione personae, follows that the Court has no jurisdiction
with respect to criminal activities committed prior to the entry into force of the Rome Statute,
see Art. 11 along with 24 of the Rome Statute.

1.2.4. territorial and personal jurisdiction


The Court can exercise its jurisdiction if a state within the territory of which the conduct has

http://rechtenadvies.blogspot.nl/ and http://pilstudy.blogspot.nl/


(international)
taken place, is a party to the Rome Statute or has accepted the ICC's jurisdiction in
accordance with paragraph 3 (Art. 12 Rome Statute). From this follows that the ICC can
exercise jurisdiction if the state of which an accused individual is a national, is a party to the
Rome Statute or has accepted its jurisdiction as set out.

Note that the limitation of territorial and personal jurisdiction does not apply to the situations
as provided for in Articles 13(b) and 15 ter of the Rome Statute.

1.2.5. no universal jurisdiction


No universal jurisdiction of the ICC is recognized; with respect to its complementary role,
Article 12(2) of the Rome Statute provides that State consent is a precondition to the exercise
of jurisdiction by the ICC.

1.3. What are the conditions for action by the ICC?


There are three ways to enable the ICC's jurisdiction, Article 13 of the Rome Statute:

1. A State Party may refer a situation to the Prosecutor, in accordance with Article 14 of the
Rome Statute (Art. 13(a) Rome);
2. The Security Council of the UN, acting under Chapter VII of the UN Charter, may refer a
situation to the Prosecutor (Art. 13(b) Rome);
3. The Prosecutor may initiate investigations proprio motu (Article 13(c) in conjunction with
Article 15 Rome).

Note that referral by a State Party and investigation proprio motu by the Prosecutor, Article
13(a) and (c) Rome, are subject to the conditions in Article 12(2)(a)(b) of the Rome Statute.

2. How do the jurisdiction of the ICC and the Tribunals differ in relation to domestic
courts?
As said before, the nature of the jurisdiction of the ICC is complementary; the Court has no
primacy, as states have first responsibility, unless they are unwilling or genuinely unable to
carry out investigation or prosecution, which is an issue of admissibility. Once a case is
genuinely being investigated or prosecuted by a domestic court, the case will no longer be
admissible before the ICC: look up relevant Articles 1 and 17-19 of Part 2 of the Rome
Statute.

No such conditions are imposed on the Criminal Tribunals; the International Criminal
Tribunal of the former Yugoslavia shall have primacy over national courts, in accordance with
Art. 9(2) of the ICTY. The same holds good for the Rwanda Criminal Tribunal, as Article 8(2)
of the ICTR (UNICTR) was a mere predecessor of the concurrent jurisdiction provisions in
the ICTY.

The International Tribunals have another main advantage over the ICC in common: the
permanent status of the ICC demands from the Court that individuals only be prosecuted for
or convicted of crimes that meet the condition of nullum crime sini lege in accordance with
Article 22 of the Rome Statute. No such provisions are to be found in the ICTY and ICTR: the
International Criminal Tribunals are able to respond to recent activities, regardless of a strict
ex ante codification of crimes that the individual could be convicted of.

3. How is the responsibility of the individual addressed?

http://rechtenadvies.blogspot.nl/ and http://pilstudy.blogspot.nl/


(international)
3.1. Individually or jointly committed crimes and contribution to the commission of
crimes
An individual should be held criminally responsible and liable for punishment for a crime
within the jurisdiction of the ICC, if that person:
1. Commits such a crime, whether as an individual, jointly with another or through another
person
(art. 25(3)(a) Rome Statute);
2. For the purpose of facilitating the commission of such a crime, aids, abets or otherwise
assists
(art. 25(3)(c) Rome Statute);
3. In any other way contributes to the commission or attempted commission of such a crime.
Such contribution shall be intentional and shall either be made with the aim of furthering the
criminal activity or be made in the knowledge of the intention of the group to commit the
crime
(art. 25(3)(d)(i)(ii) Rome Statute).

3.2. Responsibility of commanders


A person shall be held criminally responsible if that person:
1. Orders, solicits or induces the commission of such a crime (art. 25(3)(b) Rome Statute);
2. A commander shall be held responsible for crimes committed by forces under his effective
command and control, where that military commander either knew or should have known that
the forces were committing such crimes and that military commander failed to take necessary
and reasonable measures within his power to prevent or repress their commission [..] (Art. 28
Rome Statute).

3.3. Persons pursuant to superior orders


The fact that a crime is committed by a person, pursuant to an order of a Government or a
superior, shall not relieve that person of responsibility, unless that person was under a legal
obligation to obey, the person did not know that the order was unlawful and the order was not
manifestly unlawful (Article 33(1)(a)(b)(c) Rome Statute). However, the crime of genocide
and crimes against humanity are manifestly unlawful; thus, a person cannot be relieved from
responsibility with respect to such crimes (Art. 33(2) Rome Statute).

3.4. State responsibility


Article 25(4) provides that no provision in the Rome Statute relating to individual
responsibility shall affect the responsibility of States under international law.

4. How can a state exercise domestic jurisdiction over international crimes?


The principles from which state jurisdiction is derived, are territoriality, protection, nationality
and universality.

4.1. Territoriality principle


Regarding the territoriality principle, a distinction can be drawn between the subjective
territoriality (initiation of a crime) and the objective territoriality/ effects doctrine (fulfilment
of a criminal offence). If two states are concerned, both the state in which the crime was
initiated and the state in which the crime was executed, are entitled to exercise their
jurisdiction.

4.2. Nationality principle


The active nationality principle implies that a state may exercise its jurisdiction over its own

http://rechtenadvies.blogspot.nl/ and http://pilstudy.blogspot.nl/


(international)
nationals, regardless of the territory on which a crime was committed.
The passive nationality principle aims to protect a state's own nationals against offences, even
if they are committed by another national in another state. Exercising passive nationality
would interfere with the right of another state to exercise its territorial jurisdiction.

4.3. Protective principle


The protective principle implies that a state can exercise jurisdiction over non-nationals in the
territory of another state. The requirement is that an offender commits a crime that affects the
vital interests of a state.

4.4. Universality principle


Certain crimes are so grave in nature, that a universal protection against the commission of
such crimes is required, regardless of territoriality and nationality issues. From this follows
that states need to exercise universal jurisidiction with respect to the prosecution of offenders.

Note that treaty law imposes on states, party to a treaty, the obligation to exercise universal
jurisdiction regarding the repression of universally recognized, grave crimes. The crimes of
genocide and torture are crimes of such gravity. Article 6 of the Genocide Convention
stipulates that an offender shall be tried by a competent tribunal, which may exercise its
jurisdiction over the territory of the Party State in which the crime of genocide was
committed. The preamble to the Torture Convention reads that "the desire is to make more
effective the struggle against torture and other cruel treatment throughout the world". Article
7 of the Torture Convention stipulates that the State Party submit the case to its competent
authorities for the purpose of prosecution, assumed that the requirements from Art. 4-6 have
been met (territory issues).

5. The jurisdiction of the ICTY and ICTR


While the ICC and Neuremberg Tribunal were established by a treaty, the ICTY and ICTR
were established by binding Resolutions of the UN Security Council, acting under the
provisions of Chapter VII of the UN Charter. Recall that Articles 7 and 8 of the ICTY and
ICTR Statutes provide the Tribunals with both territorial and temporal jurisdiction.

5.1. The Appeals Chamber in the Tadi case of 2 October 1995: Kompetenz-Kompetenz
Concerning its jurisdiction, the Appeals Chamber in the Tadi Interlocutory Appeal of 2
October 1995 remarks that, according to the principle of "Kompetenz-Kompetenz" or "la
comptence de comptence", the Tribunal has the incidental or inherent competence
jurisdiction to determine its own jurisdiction (para 18). It is a necessary component of in the
exercise of the judicial function of the tribunals and as such, this practice was accepted by
general international law.

With respect to the questioning of the power of the UNSC to set up ICTY by means of a
resolution, the Appeals Chamber determines that the legal basis is to be found in the authority
of the Security Council, as was decided by the (paras 32-38 and 40).

5.2. Questioning the primacy of International Tribunals


Although the Tribunals have concurrent jurisdiction with domestic courts, the Tribunals have
primacy with respect to the prosecution of international crimes, as laid down in Articles 8 of
the ICTR Statute and 9 of the ICTY Statute.

The second ground of appeal in the 1995 Tadi Decision on the Defence Motion by the ICTY

http://rechtenadvies.blogspot.nl/ and http://pilstudy.blogspot.nl/


(international)
Appeals Chamber attacks the primacy of the International Tribunal over domestic courts (para
49).
However, the plea of State sovereignty must be dismissed. The Appeals Chamber provides us
with several important considerations.
The public revulsion against similar offences [crimes against humanity] brought
about the establishment of an international judicial body by an organ of an organization
representing the community of nations: the Security Council. This organ is empowered and
mandated, by definition, to deal with trans-boundary matters which may affect "international
peace and security". It would be a travesty of law, should the concept of State sovereignty be
allowed to be raised succesfully against human rights. When an international tribunal such as
the present one is created, it must be endowed with primacy over national courts. Otherwise,
there would be a danger of international crimes being characterised as "ordinary crimes" (para
58).

6. Do HRSO enjoy immunity before the ICC and Tribunals?


One final remark on the immunity of HRSO from foreign jurisdiction. It should be clear that
an incumbent HRSO or a former HRSO with respect to crimes committed in acting out
official capacities, cannot enjoy immunity before the ICC and the International Tribunals.
Article 27 of the Rome Statute stresses that HRSO do not enjoy immunity before the ICC;
Articles 7(2) of the ICTY and 6(2) of the ICTR read that the "official position of any accused
person, whether as Head of State of Government, shall not relieve such person of criminal
responsibility nor mitigate punishment".

International human rights law (IHRL) and enforcement mechanisms

1.1. Internationalization of human rights law


With regards to the internationalization of human rights, the UN Charter refers in several
Articles to the human rights movement, of which 1(3) contains an important principal
objective: "The purposes of the UN are [..] to achieve international co-operation in solving
international problems of an economic, social, cultural or humanitarian character and in
promoting and encouraging respect for human rights and for fundamental freedoms for all,
without distinction.." In this respect, other articles worth noting are 13(1)(b), 55 (Eco-Soc
operation), 62(2) and 68 of the UN Charter.

2. Doctrine: categorization of human rights


2.1. Duty bearers v. rights holders
Traditionally, the State is the principal duty bearer, whereas the individual is primary the
rights holder. The State could ultimately be held accountable or even responsible if acts that
violate human rights and which are performed by non-state actors, are attributable to the
State.

2.2. Generations of human rights


Proposed by K. Vasak is a division of human rights in three generations, the first being the
classic freedoms (negative State obligations, not to interfere), the second ecosoc-cultural
rights (positive obligations, to pro-actively fulfil human rights). The third generation,
solidarity rights (peace and environmental rights), raises questions on the position of bearers
of duties and holders of human rights. Also, human rights law still mainly emphasizes the
universal acceptance of indiviual rights.

2.3. Beneficiary

http://rechtenadvies.blogspot.nl/ and http://pilstudy.blogspot.nl/


(international)
As the individual is traditionally the rights holder, it is important to note that human rights can
be enjoyed by the collective and by people in an association. An example is the protection of
persons belonging to a minority group, as set out in Article 27 of the ICCPR (International
Convenant on Civil and Political Rights).

2.4. Negative v. positive obligations


The last category to discuss is one of importance. Whereas the classic negative obligations (to
a great extent stemming from the Age of Enlightenment) impose on States the obligations to
refrain from interference and to respect human rights, a fundamental human right like the
right to life also requires that a state proactively promotes the safety of its citizens. The
obligation to "protect and fulfil" imposes positive obligations on states.

2.4.1. Zooming in on negative vs. positive obligations: ECtHR, Judgment of 9 June 2009,
application no. 33401/02
Alleged violation of Article 2(1) of the ECHR: the Right to life
The Court reiterates that the first sentence of Art. 2(1) enjoins the State not only to refrain
from the international and unlawful taking of life, but also to take appropriate steps to
safeguard the lives of those within its jurisdiction. This involves a primary duty on the State to
secure the right to life by putting in place effective criminal-law provisions (para 128).
Where there is an allegation that authorities have violated their positive obligation to
protect the right to life, it must be established to its satisfaction that the authorities knew or
ought to have known at the time of the existence of a real and immediate risk to the life (para
130).

Upon the alleged failure to protect life, the Court decides on questions concerning the scope
of the case (i), whether the local authorities could have foreseen a lethal attack by the offender
(ii), whether the authorities have displayed due diligence to protect the right to life (iii) and
the effectiveness of the criminal investigation by the authorities.

The Court reiterates that a failure to take reasonable measures which could have had a real
prospect of altering the outcome, is sufficient to engage the responsibility of the State (para
136).

2.4.2. The duty to strike a balance between positive and negative obligations
Although there is no general consensus among States Parties regarding the pursuance of
criminal prosecution when a victim withdraws his or her complaints, there seems to be an
acknowlegdement of the duty on the part of the authorities to strike a balance between the
Article 2, 3 or 8 rights in deciding on course of action. Factors to be taken into account are
listed by the ECtHR (para 138).
Taking these factors into consideration, the prosecution should continue in the public
interest, even if a victim withdraws a complaint (para 139).
In any event, the Court would underline that in this case, a perpetrators' rights (as the
authorities hold the view that interference would amount to a breach of the victims' rights
under Article 8 and that private matters are incompatible with positive obligations) cannot
supersede victims' human rights to life and to physical and mental integrity (para 147).

3. A clash of human rights: which right should prevail?


Well-known to States Parties to the ECHR and ICCPR is an ongoing discussion on the clash
of human rights. As people likely tend to forget or wish to forget to alter the outcome of the
debate on social and cultural human rights, the provisions on the freedom of expression

http://rechtenadvies.blogspot.nl/ and http://pilstudy.blogspot.nl/


(international)
contain a clause in the second or third paragraph.

For example, take Article 10(2) of the ECHR and Article 19(3) of the ICCPR: "The exercise
of the freedom of expression, since it carries with it duties and responsibilities, may be subject
to such formalities, restrictions and penalties as are prescribed by law and are necessary in a
democratic society". From this follows that the rights holder is not free of responsibility.
These provisions aim to ensure the human rights of other individuals.

Thus, the requirements for governmental interference are: the interference has to be in
accordance with the law (prescribed by law), a legitimate aim has to be pursued (rights of
others in a democratic society) and interference should be necessary to ensure a democratic
society. Upon deciding whether certain measures, e.g. restrictions and punishment should be
deemed necessary, the ECtHR mentions the existence of a "pressing social need" and the
proportionality of the measures in question.

On the freedom of expression, the ECtHR has decided in the Handyside case that: " Freedom
of expression is applicable, not only to "information" or "ideas" that are favourably received
or regarded as inoffensive [..] but also to those that offend, shock or disturb the State or any
sector of the population. Such are the demands of pluralism, tolerance and broadmindedness,
without which there is no "democratic society".

3.1. ECtHR Judgment of 13 September 2005, application no. 42571/98


3.1.1. Alleged violation of Article 10 of the ECHR (Freedom of expression)
As paragraph 2 of Article 10 recognizes, the exercise of that freedom carries with it duties and
responsibilities. Among them, in the context [..] may legitimately be included a duty to avoid
expressions that are gratuitously offensive to others and profane. This being so, as a matter of
principle it may be considered necessary to punish improper attacks (para 24).

3.1.2. Margin of appreciation with respect to the necessity criterion: pressing social need
In examining whether restrictions to the rights and freedoms can be considered "necessary in
a democratic society", the Court has frequently held that the Contracting States enjoy a certain
but not unlimited margin of appreciation. In case, the Contracting States have a wider margin
of appreciation as there is no uniform European conception of the requirements (para 25).
The Court considers that the measure taken, was intented to provide protection against
offensive attacks. In that respect, it finds that the measure may reasonably be held to have met
a "pressing social need". The authorities cannot be said to have overstepped their margin of
appreciation
(paras 30, 31).
As to the proportionality of the impugned measure, the Court is mindful of the fact that
the insignificant fine imposed was proportionate to the aims pursued (para 32).

The Court decides that there has been no violation of Article 10 of the ECHR. Contrary to this
judgment, the dissenting judges state that the "offense of the majority does not appear to be a
sufficient reason in a democratic society to impose the mentioned sanctions; otherwise, the
dictum from Handyside would be deprived of all effect. In our view, this consistent case-law
seems to place too much emphasis on conformism or uniformity of thought".

4. Human rights protection: Charter-based and treaty-based enforcement mechanisms


Before discussing the Charter-based and treaty-based enforcement mechanisms, a distinction
between UN monitoring (enforcement) mechanisms and regional monitory/ supervisory

http://rechtenadvies.blogspot.nl/ and http://pilstudy.blogspot.nl/


(international)
mechanisms (as is the ECtHR): the UN monitoring mechanism is not such a strong
enforcement mechanism.

4.1.1. Charter-based enforcement mechanisms


According to the UN Library, the general characteristics of charter-based bodies are:
a. their establishment derives from provisions, contained in the UN Charter;
b. these bodies hold broad human rights mandates;
c. charter-based bodies address an unlimited audience;
d. actions are based on majority voting.

The Human Rights Council (HRC) and its predecessor (Commission on Human Rights) are
Charter-based, as they were established by resolutions of principal organs of the UN, whose
authorities flow from the UN Charter. In fact, the General Assembly has established the HRC
and the task of the HRC is to report its universal periodic review to the UNGA. The current
Subsidiary Bodies are the Universal Periodic Review Working Group and the Human Rights
Council Advisory Committee. The HRC has responsibility for Special Procedure mechanisms.

The role of the UNGA is laid down in Article 13 of the UN Charter. Articles 62(2) and 68 of
the UN Charter provide that ECOSOC is able to make recommandations and to set up
commissions.

4.1.2. Treaty-based enforcement mechanisms


Treaty-based bodies share the following traits:
a. they derive their existence from provisions contained in a specific legal instrument;
b. treaty-based bodies hold narrow mandates, in accordance with the set of issues, codified in
the legal instrument (= treaty in question);
c. they address a limited audience: only the countries that have ratified the treaty;
d. decision-making is based on consensus.

Currently, there are nine UN human rights conventions with monitoring bodies to supervise
the implementation of the treaty provisions, among which the mostly discussed are:
1. HRC (Human Rights Committee), monitoring the ICCPR;
2. CESCR (Committee on ECOSOC), monitoring the ICESCR;
3. CAT (Committee against torture), monitoring the CAT.

4.1.2.1. Human Rights Committee on ICCPR: the issuing of documents


Article 28 of the ICCPR stipulates the establishment of the HRC, which shall be composed of
nationals of the States Parties to the Convenant.

The types of issued documents are, as follows:


1. The ICCPR Convenant provides in Article 40 that reports shall be submitted ("States parties
reports" or "concluding observations");
2. General comments provide the Committee's interpretation of the content of human rights
provisions;
3. Inter-state complaints may be issued in accordance with Art. 41 ICCPR;
4. In addition, the Committee may consider individual communications relating to States
parties to the First Optional Protocol. These "views", based on Art. 1 OP, are not legally
binding.

http://rechtenadvies.blogspot.nl/ and http://pilstudy.blogspot.nl/


(international)
4.1.2.2. Committee on Economic, Social and Cultural Rights ( CESCR on ICESCR)
Established by the ECOSOC Resolution, Article 16 of the ICESCR stipulates that reports
shall be submitted to the Secretary General of the UN, who shall transmit copies to the
ECOSOC for considerations in accordance with the provisions of the Convenant. By issuing
general comments, the
Committee provides the interpretation of the content of human rights provisions. The State
reporting mechanism, according to Article 16 ICESCR, implies that the Committee can
address these reports by means of concluding observations.

The Optional Protocol to the ICESCR provides an individual complaints procedure, Art. 2 OP
(non-binding views) and an inter-state complaints procedure, Art. 10 OP.

4.2. Bill of Rights


The predecessor of the Human Rights Council sent its draft on the Bill of Rights to the
Charter-based ECOSOC. The UN General Assembly adopted the Universal Declaration of
Human Rights through Resolution 217 A III, referred to as an instrument of "soft law", as this
document is legally not-binding. Together with the UDHR, the later on adopted treaties
ICCPR and ICESCR form the International Bill of Rights. The "soft law" character of the
resolutions notwithstanding, the human rights conventions ultimately have a legally binding
effect, as the UDHR general standards are translated into treaties for universal and regional
protection.

5. Regional human rights protection: enforcement body of the ECHR


Articles 33 and 34 of the ECHR determine the jurisdiction of the ECtHR. The admissibility
conditions are to be found in Article 35 ECHR: these are the exhaustion of local remedies and
the condition that a complaint must not be ill-founded.

As was said before, the UN monitoring mechanisms are not quite as strong as the regional
enforcement mechanisms. The explanation of the distinction is simple: the monitoring body of
the ECHR is the European Court of Human Rights. As a judicial body, the ECtHR is able to
issue legally binding judgments, in accordance with Article 46 ECHR. The treaty-based
nature of the ECHR implies that these judgments are, as an integral part, binding for Member
States, parties to this Convenant. Ultimately, the strong enforcement mechanism stems from
the parties' consent to be bound under treaty law.

Sources
Hot topics 85, State Library of South Wales;
Moscrop, Enforcing International Human Rights Law, 2014;
Human Rights Enforcment Mechanisms, ESCR;
Human Rights Bodies, Office of the High Commissioner;
Treaty-based and Charter-based bodies, Dag Hammarskjld Library (available via
Research.un.org);
Lowe, International law, Oxford University Press (2007).

Dispute Settlement beyond borders: GATT-WTO procedure within Trade Law

http://rechtenadvies.blogspot.nl/ and http://pilstudy.blogspot.nl/


(international)
1. GATT: Fundamental principles
The predecessor of WTO, GATT, aims at the reduction of tariffs and the elimination of
discriminatory treatment in international commerce (Preamble GATT 1994). Note that parties
to the WTO have given their consent to be bound by the treaty; therefore, it is only logical
that GATT imposes obligations on these state parties.

Among the fundamental legal principles of GATT are the most-favoured nation clause (MFN,
Article I GATT), the National Treatment clause (NT, Article III GATT), the General
Elimination of Quantitative Restrictions (Art. XI (1) GATT) and Anti-dumping and
Countervailing Duties (Art. VI GATT).

1.1. Non-discrimination
Taken together, the MFN (Art. I GATT) and NT (Art. III GATT) underlie the non-
discrimination principle.

Art. I (1) GATT provides that any advantage granted by any contracting party to any product
originating or destined for any other country, shall be accorded immediately and
unconditionally to the like product originating or destined for the territories of all other
contracting parties.

Art. III (2) GATT provides that the products of any other contracting party shall not be
subject, directly or indirectly, to internal taxes or other internal charges of any kind in excess
of those applied to like domestic products; moreover, the products imported into the territory
of another contracting party shall be accorded treatment no less favourable than that accorded
to like products of national origin (only differential charges may be applied, based on the
means of transport and not nationality of the product).

1.2. Market liberalization


Aiming at the liberalization of the global trade, tariffs need to be reduced and consolidated,
Article II GATT (Schedules of Concessions). For the conditions of liberalization to be
satisfied, Article III GATT is as necessary as it is for realizing the non-discrimination
principle. Without the provisions of Art. III GATT, Article II GATT would be rendered of its
practical value.

An example to explain this. State Q. confines itself to the reduction and consolidation of the
tariff on imported cigarettes- the tariff is 10%. State R. imports cigarettes into the territory of
State Q.
State Q. lower the tariff on domestic cigarettes (which would be considered like products by
the Dispute Body) to 5%.

Should Article III GATT not be applicable, then it would be possible for State Q. to ultimately
render the Schedules of Consessions from their effect; it could simply do so by favouring its
internal market. From this example, it should be clear that provisions on market liberalization
cannot do without the principle of non-discrimination (not without reason, MFN and NT are
fundamental principles).

1.3. Exceptions
A state member to the WTO, restricting the import of products by another state member, could
invoke exeptions to justify the application of restrictive measures. General exceptions are

http://rechtenadvies.blogspot.nl/ and http://pilstudy.blogspot.nl/


(international)
found in Article XX GATT; important exceptions are, for example, the protection of human,
animal and plant life or health (b) and the conservation of exhaustible natural resources, if
such measures are made effective in conjunction with restrictions on domestic production or
consumption.

Is the restrictive measure jusitified, the measure needs to meet the requirements under the
"Chapeau", the Introductory Clause to Article XX GATT. Measures shall not be applied in a
manner which would constitute a means of arbitrary or unjustifiable discrimination between
countries where the same conditions prevail, or a disguised restriction on international trade.

Thus, assuming that a measure is related to one of the purposes of the general or specific
exceptions, any discriminating application of the measure is a violation of the exceptions
provided.

2. WTO Dispute Settlement Understanding (WTO-DSU)


Before bringing a dispute before the Panel, Members should utilize diplomatic means, the first
of these being consultations (Article 4 DSU). If the consultations fail to settle a dispute within
sixty days after the date of receipt of the request for consultations, the establishment of an ad
hoc panel may be requested (Art. 4(7) DSU). The Procedures before the Panel are set out in
Article 12 DSU.

The Appellate Body hears appeals from panel cases (Appellate review, Art. 17 DSU). Only
parties to the dispute may appeal a panel report, but third parties which have notified the DSB
of a substantial interest in the matter, pursuant to Article 10(2) DSU, may make submissions
to and be given an opportunity to be heard by the AB (Art. 17(4) DSU). The appeal shall be
limited to issues of law, covered in the panel report and legal interpretations developed by the
panel (Art. 17(6) DSU).

Both the panel procedure and appellate review work on a system of negative consensus: the
DSB panel report will be adopted, unless all member decide by consensus not to adopt the
report (Article 17 DSU). Following the appellate review, an AB report shall be adopted by the
Dispute Settlement Body, consisting of all WTO Members. Again, the report shall be adopted
by negative consensus (Art. 14 DSU). This mechanism is often referred to as "quasi-
automatic", as a decision by one or more, but not all Members, cannot affect the adoption of
the report.

http://rechtenadvies.blogspot.nl/ and http://pilstudy.blogspot.nl/


(international)