Public International Law Tutorial Questions

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Week 1: Sources of International Law

By the end of this week, you should be able to answer the following questions. There will be time during tutorials to discuss and clarify your understanding of the answers.

• What are the recognised sources of international law? What is the authority for this?
  • A Treaty is defined as:
    • An international agreement concluded between States in written form and governed by international law, whether embodied in a single instrument or in two or more related instruments and whatever its particular designation. (See Art. 2 Vienna Convention on the Law of Treaties 1969 – VCLT)
• How do we establish customary international law? What evidence must you show to establish these elements of customary international law?
  • (see ILC conclusion 11):
    • Treaty declares pre-existing customary international law (as Nicaragua argued in Military and Paramilitary Activities)
    • Treaty represents crystallization of an emerging rule of custom customary international law (as Netherlands and Denmark argued in North Sea Shelf)
    • Subsequent practice makes treaty rule into custom
  • 1. State practice- behaviour & practice of states (objective facts)
    • Duration, consistency, repetition and generality?
    • 2. Psychological or subjective belief (opinio juris)
      • States feel bound or obliged to act in a certain way
      • Maxim: opinio juris sive necessitatis
  • In summary, Customary International Law = state practice + opinio juris
• What is a persistent objector? How can a state show that it is a persistent objector?
  • The ‘persistent objector rule’- a State that persistently objects to a rule of customary international law from its inception is not bound to it
  • Anglo-Norwegian Fisheries case (United Kingdom v Norway) (Merits), ICJ Reports 1951

  • ILC

• Is there a hierarchy of sources of international law? Provide examples
• What are jus cogens norms of international law?
  • Jus cogens def:
    • Rules that are binding on all States regardless of whether or not the States have consented to be bound by them
    • A.K.A. Peremptory norms def
      • slavery, genocide, piracy, and acts of aggression or illegal use of force
  • UN Charter

Week 2:Personality and Recognition in international Law

• Why is legal personality important in international law?

  • Legal personality is crucial in international law as it determines which entities, such as states and international organizations, can possess rights, obligations, and participate in the international legal system. It allows these entities to enter into treaties, bring claims before international courts, and be held accountable for their actions. Without legal personality, an entity cannot be recognized as a participant in international law or engage in legal processes.

• What are the indicia of statehood?

  • 4 main criteria:
    • ‘The state as a person of international law should possess the following qualifications:
      • (a) a permanent population;
      • (b) a defined territory;
      • (c) government; and
      • (d) capacity to enter into relations with other states.

• What are the criteria for UN membership? Is UN membership an indicia of statehood?

  • Membership in International Orgs – Art 4 UN Charter requires ‘peace loving state’ that accepts and carries out obligations under the charter.
  • States that act ‘lawfully’
  • Yes, UN membership is often considered an indicia of statehood, as it reflects recognition by the international community and the ability to engage in international relations.

• What is the significance of the principle of self-determination in contemporary international law?

  • Self-determination:
    • ‘All people have the right to self-determination; by virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development’ (Common Art 1 ICCPR 1966 & ICESCR 1966)
    • It is a foundational principle that supports decolonization, the formation of new states, and the protection of minority groups.
    • This principle also influences international responses to conflicts and disputes where the rights of peoples to self-governance are at stake.

• Besides states, who or what has personality in international law?

  • Individuals
  • Multinational corporations
  • Regional organisations (African Union, EU)
  • Insurgents or national liberation movements

• Why is recognition significant in international law?

  • Considered important act that can affect a state’s ability to exercise its rights and responsibilities as a state
  • nb there is a difference between recognition of states and recognition of governments.

• What are the two theories of recognition in public international law?

  • The Constitutive Theory
    • Recognition has a ‘constitutive’ effect so that a state becomes an international legal person and a subject of IL only through recognition.’
  • The Declaratory Theory
    • States exist independent of recognition:

• What are the legal effects of recognition?

  • ‘States have discovered that the granting or withholding of recognition can be used to further a national policy.
  • States have refused it as a mark of disapproval, as nearly all of them did to Manchukuo and they have granted it in order to establish the very independence of which recognition is supposed to be a mere acknowledgement.
  • allowing it to participate in international relations, enter into treaties, and assert rights and obligations under international law. Recognition also affects the entity’s ability to access international courts and organizations, and it may influence the application of diplomatic immunities and privileges.

• Are there restrictions on the discretion to recognise a state?

  • Recognition should generally align with established criteria for statehood, such as those outlined in the Montevideo Convention, which include a permanent population, defined territory, effective government, and capacity to enter into relations with other states.
  • Additionally, recognition should not violate fundamental international principles, such as the prohibition on recognizing entities that result from illegal use of force (e.g., in cases of unlawful territorial acquisition) or the principle of self-determination.
  • Cannot be revoked

• For decades a bloody civil war raged in Reynes between Suddene (who speak Gaelic) and Westernesse (who speak Saxon). Westernessans had fought for independence from Reynes because of their persistent, extreme poverty which they attribute to the ongoing, systematic depletion of natural resources (water and natural gas) located in Westernesse by the Suddenen-dominated federal government. As part of a 2014 peace treaty to end the civil war, Westernesse and the central government of Reynes resolved that local parliamentary elections would be held in Westernesse in 2016 and a referendum in 2017 on the question of Westernessian independence, and Reynes would respect the results of these ballots. The ballots would be overseen by the regional organisation, the Highlands Union (HU). Reynes is a member state of HU. Following the 2016 elections, a predominantly Saxon-speaking Westernessian parliament was installed. Westernesse has since started to establish its own security forces under the supervision of HU. In October 2017, Westernesse held its independence referendum with 97% of the population voting to secede from Reynes. Over 50 States congratulated the people of Westernesse and formally stated that they would recognise Westernesse. Many of these states are actively pursuing treaty negotiations with Westernesse to secure trade and other international relationships as quickly as possible. Reynes’s Prime Minister Murry Horn wishes to notify the United Nations’ Security Council and HU that Reynes will respect the outcome of the referendum and recognise the new state provided that it cedes its northern region of Westernesse Minor to Reynes. He maintains that this is non-negotiable because Westernesse Minor’s people are predominantly Gaelic-speaking Suddenens. He has deployed Reynesian military forces to secure this territory and protect Suddenens from possible persecution by the new Saxon-dominated Westernessian government. 5 states in the region, including the regional power, Volkor, have indicated that the cession of Westernesse Minor to Reynes is a condition of their recognition of Westernesse.

• Advise the Prime Minister whether Westernesse satisfies the criteria of statehood

  • Answer template:
    • Whether W satisfied the criteria for statehood
      • Montevideo criteria
        • Population
          • Art 1(a) - permanent population
            • Duchy of Sealand - no minimum size, but a state community playing a role in vital human needs (eg hospitals education etc)
          • Reasonable stability (Western Sahara Ad Op)
        • Government
          • Montevideo Art 1(c) - effective
          • Parliament elected
          • Unknown control but reasonable assumption, Yugoslavia and Somalia - explicit lack of control over territory
          • Badinter Commission - regional custom
            • The government is not identified as either representative or nonrepresentative of the people
          • –‘effective’ see eg Aaland Islands Case or French Indemnity of 1831
          • What is the role of other rentities in ‘propping up’ the gov? [see Capacity]
        • Territory
          • Montevideo Art 1(b)
          • Size not important (state practice - Vatican)
          • Clear boundaries not totally neccessary as long as sufficient consistency (Deutsche Continental Gesselschaft v Polish State)
          • Must be a land area - Duchy of Sealand
          • State Practice - Croatia, Bosnia, Albania.
        • Capacity
          • Montevideo 1(d)
          • Linked to the idea of independence
          • Austro German Customs union - independence, sole decision making authority
            • Dependence = under the subordination of another
          • State Practice - Manchukuo (‘Puppet state’)
          • Monaco - military defence and their judicial officers to France.
          • HU - W subordinate to HU? OR is W’s asking HU to come in and help evidence of its soverignty/statehood bc the ability to delegate those func is an inc of statehood.
      • Other Criteria - and does W satisfy them
        • Self-determination
          • Does W satisfy the criteria of statehood?
          • Does the principle of SD impact on whether W satisfies the criteria of statehood? Or is SD relevant to whether W satisfies the criteria?
          • There is a right to self determination GA Res 1514 on the granting of independence to Colonial territories now reflects customary IL
          • ICCPR ICESCR UN Charter Art 2(1)
          • AD OP (Advisory Opinion) Western Sahara - called for decolonization - A PEOPLE has a right to self determination; set out an accepted international process for SD through a referendum (‘freely expressed will of the people’)
          • AD OP Chagos Islands - you cannot detach / be forced to cede territory as a condition of decolonization
            • That SD is a norm of customary IL that gives rise to a right of statehood ON decolonization
            • And that SD is an obligation erga omnes
              • Towards all
      • IS OUR Situation one of formal decolonization
      • IF NOT then what the content of SD is much less clear.
    • SD cont
      • Maybe not formal decol, but referendum, agreement for independence from R BUT
      • R has said we want WM or we won’t RECOGNIZE you. Under the declarative theory this will not affect W’s statehood.
        • Does WM have the right to SD
        • ‘lawfulness’
          • UN Charter - Art 4 ‘peace loving and carry out obligations under the charter’
          • Can’t come into being through an illegal act or use of force - manchukuo
          • State practice - apartheid Bantustans (Transkei etc) - not a state; (other ex look them up)
        • Membership of IOs (international orgs
          • No it’s indicative but not determinative
          • UN Charter - Arts 5 and 6
          • State Prac (egs such as Palestine which is a non state member of UN)
    • Is recognition relevant to whether W satisfies the criteria for statehood
  • Recognition - is recognition relevant to W’s statehood
    • Constitutive
      • Acts of recognition allows the state to exist it creates or ‘constitutes’ the state
    • Declaratory
      • States exist w/o recognition it just ‘takes note’ of the preexisting fact of statehood
    • The weight of authorities favours the declaratory theory.

Week 3: Relationship between International and Municipal Law

• What is the relationship between treaty and custom?
  • Treaties and customary international law are interrelated, with treaties often codifying or reflecting customary norms, and customs filling gaps or guiding treaty interpretation.
  • While treaties generally take precedence among parties, they may influence the development of new customs, and both sources work together to establish international legal norms.
• What is the legal status of resolutions of the UN General Assembly and UN Security Council?
  • UN General Assembly resolutions are generally non-binding and serve as recommendations or expressions of collective opinion, while UN Security Council resolutions are legally binding on member states under Chapter VII of the UN Charter, particularly in matters concerning international peace and security.
• When defining the relationship between domestic law and international law, what is the difference between monism and dualism? And between the doctrine of incorporation and the doctrine of transformation?
  • Monism and dualism describe how domestic legal systems relate to international law:
    • Monism: International law and domestic law are seen as a single legal system, where international law automatically applies within the domestic sphere without the need for specific incorporation.
    • Dualism: International law and domestic law are separate systems, requiring explicit incorporation of international law into domestic law through legislation before it has domestic legal effect.
  • The doctrines of incorporation and transformation address how international law becomes part of domestic law:
    • Doctrine of Incorporation: International law is automatically part of domestic law without the need for legislative action, typically seen in monist systems.
    • Doctrine of Transformation: International law must be specifically adopted or transformed into domestic law through legislation, reflecting the dualist approach.
• How is treaty law transposed into Australian domestic law?
  • Through legislation
• How is customary international law transposed into Australian domestic law?
  • Giving a treaty the force of law
  • Legislation approving treaties
  • Use of the language of domestic law
  • A new statutory regime
  • No reference to a treaty
  • Use of regulations rather than statute
• Problem Question
  • Paxman is a member state of the United Nations located in the Asia-Pacific region. To the east of Paxman is the state of Conti, a multi-ethnic state that has a long history of peaceful co-existence and democracy. This has included providing relative political and social autonomy to certain ethnic groups such as the Zielke people, who reside in the western region of Conti near the border of Paxman. In 2023, a popularist leader was elected as the President of Conti on a platform of centralisation and ‘national cohesion’. Upon assuming office, the President began demonising the Zielke people as separatists whose physical presence and political autonomy ‘threatens the national integrity of Conti’. As a result, Conti national security officers and police commenced a campaign targeting the Zielke people as a collective group, including subjecting some prominent Zielke leaders to imprisonment and torture in Conti prisons. Seeking to escape the persecution, several thousand Zielke people fled across the border to seek asylum in Paxman. Paxman has signed but not ratified the 1951 Convention on the Status of Refugees, and is not a state party to the 1967 Optional Protocol. Instead, Paxman has requested that the United Nations High Commissioner for Refugees (UNHCR) undertake refugee status determination in its territory with respect to the Zielke people. Overwhelmingly, the UNHCR has found the Zielke people to be refugees within the meaning of the 1951 Convention.
  • The 1951 Convention places certain obligations on state parties including to provide housing to refugees and not to return a refugee to a place of persecution (the obligation of non-refoulement). Paxman has refused to offer any form of assistance to the Conti refugees, and in 2016, even began deporting some refugees back to Conti. At the peak of the refugee crisis, the UN Security Council (‘UNSC’) passed a resolution that called on Paxman to provide ‘shelter and safety’ to the Zielke refugees within its territory and recognised the obligation of non-refoulement as a ‘foundational norm’ of international law. During the parallel UN General Assembly (UNGA) debates, several states in the Asia Pacific region noted that they have long had a practice of providing shelter to refugees in their territories, despite not being signatories to the Refugees Convention.
  • The Australian Prime Minister wishes to make a statement in parliament on the situation. Assume Australia has ratified the 1951 Convention but has not passed enabling legislation in its domestic law.
• Advise the Prime Minister on the legality of Paxman’s actions in relation to the expulsion of Zielke refugees from its territory and the denial of housing to Zielke refugees residing in Paxman.
• Advise the Prime Minister of Australia’s international obligations to the Zielke refugees, if any. What is the source of this obligation? How would it become part of Australian law?
• Issues
  • Does paxman have an obligation to the refugees
  • What are the obligations?
  • Housing
  • Non-refoulement
  • What are the sources of those obligations
  • What are A’s obligation’s if any
    • Housing
    • Expulsion
  • What are the sources
  • How would the become part of A’s law
• P’s obligations in IL
  • Housing
    • Regional custom norm - asian countries accepting refuges
    • signed the treaty - indicated an intention to legislate even though they have not
    • 1951 Refugee Conv?
      • Not ratified it is not a source of obligation
      • Vienna - VCLT - Art 2, 2(b)
    • But is there a custom? Asia-Pacific custom. (regional custom is ok, Asylum case)
      • P has called for assistance (suggesting opinio juris?)
      • Not a persistent objector.
    • UNSC Res - ‘calls on’ P to provide shelter and safety. - UN Charter Art 25 binding unless evidence to the contrary,
  • Non-refoulement
    • Treaty not a source for P
    • No regional custom of non refoulement hower non refoulement IS a norm of customary IL
    • UN SC Res? Above
  • P has obligations in International law
    • assuming A has ratified the 1951 Refugee Conv, A has IL obligation
    • Outside legislstion/enactment is there any way that IL forma part of Australian Law
      • Yes - (Mabo) Teoh:
    • A is Dualist, therefore it would have to legislate to enact in domestic law
      • Thompson v nulyraimma
      • Custom must be brought in as well
      • Dietrich - authority
    • Non-refoulement
      • Treaty not a source for A
      • No regional custom of non refoulement hower non refoulement IS a norm of customary IL
      • UNSEC Res does not apply - not directed at A
        • recognised the obligation of non-refoulement as a ‘foundational norm’ of international law.
    • Housing
      • Regional custom norm - asian countries accepting refuges
      • Signed and ratified treaty. Obligation if they are in Australia
      • UNSEC Res does not apply - not directed at A

Week 4 State Jurisdiction

By the end of this week, you should be able to answer the following questions. There will be time during tutorials to test and clarify your understanding of the answers.
Questions

• What is the difference between prescriptive jurisdiction and enforcement jurisdiction?
  • Prescriptive jurisdiction - legislative-power to make laws
  • Enforcement jurisdiction -State’s power to enforce its laws against anyone who contravenes them.
    • Includes both executive and judicial powers of enforcement.
• What are the five heads of jurisdiction recognised by international law? When can they be invoked?
  • Territorial Jurisdiction: Authority over acts committed within a state’s own territory.
  • Nationality (or Active Personality) Jurisdiction: Authority over a state’s nationals, regardless of where they are located.
  • Passive Personality Jurisdiction: Authority over acts committed abroad that harm the state’s nationals.
  • Protective Jurisdiction: Authority over acts outside a state’s territory that threaten its security or governmental functions.
  • Universal Jurisdiction: Authority over certain serious crimes (e.g., genocide, war crimes) that are recognized as affecting the international community as a whole, regardless of where they occur.
• Which crimes attract universal jurisdiction?
  • Jus cogens
• Some Australian laws apply outside Australian territory. Under international law, what is the legal basis for the application of these laws outside of Australia?
  • Five principles of jurisdiction recognized by International Law (Harvard)
    • Objective Territorial Principle
      • asserts that a state has the jurisdiction to prosecute crimes that are initiated outside its territory but have significant effects or consequences within its territory.
      • AKA Territorial Principle: States have jurisdiction over acts committed within their territory.
      • D.P.P. v Doot,
      • R. v Bates,
    • Principle of Universality:
      • asserts that a state has jurisdiction to prosecute certain offenses, regardless of where they were committed, and regardless of the nationality of the perpetrator or the victim, because the crimes are so serious that they affect the international community as a whole.
      • Jus cogens
    • Nationality Principle:
      • States have jurisdiction over their nationals, even when those nationals are abroad.
    • Protective Principle:
      • States have jurisdiction over acts outside their territory that threaten the state’s security, such as espionage or counterfeiting currency.
      • doctrine of the contiguous zone
        • Would the principle allow State A to exercise criminal jurisdiction over the officials of State B in respect of their actions in the execution of an unfriendly policy (e.g. a trade embargo) of State B towards State A?
        • The doctrine provides coastal states with limited enforcement powers beyond their territorial sea, specifically related to customs, immigration, fiscal, and sanitary matters. While it does not confer full sovereignty, it allows states to protect their interests just beyond their territorial boundaries, balancing their rights with the freedoms of other states on the high seas.
      • Joyce v DPP [1946] AC 347
    • Passive Personality Principle:
      • States may claim jurisdiction over acts committed abroad that harm their nationals.
      • US v Yunis (No.2)
        Tutorial problem 4

Territorial

• State has jurisdiction over state in the territory

• Lotus case

• Island of palmas - sovereignty is the right to exercise in a territory it’s right of a State to the exclusion of all others

• Lotus case because an event happened on the state’s vessel then it counts as territory

• Ships of the ‘flag state’= territory

• Aircraft

• Chicago convention 1944

• Tokyo convention 1963

• O - no jurisdiction

• Any other State?

  • M - yes, flag state territory
  • MB land - no territorial claim possible
    Nationality

• nationality - when the national is the offender

• Lotus - any state has The right to legislation with regard to the conduct of nationals outside its territory

• Nottebohm - real and effective nationality

• Does O have jurisdiction - no, unless then WLF members were O nationals

• Does any other State? UK
  Passive Personality Principle

• National is the victim

• US v Yunis

  • Only need a national
  • Controversial principle - overstepping boundaries (non-interference, see territorial principle)
  • Now in terrorism and aviation cases it is used quite regularly

• Does O have jurisdiction - yes, Pepe is an Oceano national

• Does any other State? China, Chile, etc (Taiwan?)
  Protective Principle

• Protection of national interest

• ‘Vital national interest (Eichmann)

• Authorities

  • Eichmann v Israel
  • Joyce v DPP

• Does O have Jurisdiction - no

• More the UK and or Miceland
  Universal Jurisdiction

• An event amounting to a contravention of universal norms - jus cogens

• Eichmann

• Pionchet

• Tadic

• Arrest Warrant

• Linking principle??

• eichmann

• Arrest warrant
  Does O have jurisdiction? -

UK protective Principle
The ‘protection’ of ‘vital’ national interests which may have been injured by the action – security, national integrity and political independence. - whales

The Womble liberation front is an obscure terrorist group seeking to depose the Crown in the land of whales

Principle history

Used to justify prosecution of terrorists and those who plan / train terrorism / terrorists abroad.
Widely used in espionage /spying type cases – popularity of approach increases
popularity of approach increases after the 1960’s.

Joyce v DPP

Held that because he held a British passport he owed an allegiance to the Crown and that his actions where against the interests of Britain, receiving The protection and therefore jurisdiction of the uk

Lockerbie case - concurrent Jurisdiction in a similar plane cass

Week 5 Immunity from Jurisdiction

By the end of this week, you should be able to answer the following questions. There will be time during tutorials to test and clarify your understanding of the answers.
Questions

• What is meant by foreign state immunity? When can foreign state immunity be claimed before Australian courts?
  • State Immunity
    • Concept of Immunity is underpinned by the principles of State Sovereignty, reciprocity and State equality (par in parem non habet imperium – an equal does not have power over an equal).
    • Concept of Immunity has developed with time and there has been a move from the traditional Absolute Immunity approach (where the State enjoyed complete immunity from domestic legal action) to a so called Restrictive Immunity approach (where the State only enjoys immunity under certain circumstances).
• When is a head of state immune from the jurisdiction of another state?
  • Immunity of Head of State/ former Head of State
    • R v Bow Street Metropolitan Magistrate Ex P Pinochet [2000] 1 A.C. 147
      • In summary court held a former head of state has limited functional immunity (ratione materiae)- torture is not a state function therefore no immunity
    • By signing the Rome Statute, state parties have waived immunities to their heads of states or other state officials.
• When is a foreign minister or other government official immune from the jurisdiction of another state?
  • Head of State and Government Officials:
    • Absolute Immunity: Heads of state, heads of government, and foreign ministers typically enjoy absolute immunity from the jurisdiction of foreign courts while they are in office. This immunity covers all acts, both official and private, and is not subject to exceptions, even for alleged violations of international law.
    • International Customary Law: This immunity is recognized under customary international law and is grounded in the need to protect the sovereignty and effective governance of states.
  • Acts Performed in an Official Capacity:
    • Functional Immunity (Immunity Ratione Materiae): After leaving office, former officials (including foreign ministers) retain immunity for acts performed in their official capacity. This type of immunity, known as “functional immunity,” protects them from legal actions related to their official acts while in office, as these acts are considered acts of the state itself.
    • Personal Immunity (Immunity Ratione Personae): While in office, these officials also enjoy “personal immunity,” which is broader and covers all acts, official or personal. This immunity ceases when they leave office, except for the continued protection of official acts under functional immunity.
• What immunity does a diplomatic agent enjoy from criminal jurisdiction of the receiving state? What other immunities does a diplomatic agent enjoy?
  • Diplomatic and consular immunity
    • Diplomats are immune from all administrative, civil, criminal jurisdiction of the receiving State, to which they are accredited.
    • Generally, a Diplomats family will also enjoy the same immunities (provided they are not a citizen of the host State)
    • Diplomats are unable to do their jobs/role without fear or favour. Concept is based on so-called ‘functional necessity’ theory.
    • The criteria for diplomatic status are set out in the Vienna Convention on Diplomatic Relations 1961 (‘Vienna Convention’).
    • The Vienna Convention has been made part of Australian domestic law pursuant to the Diplomatic Privileges and Immunities Act 1967 (Cth)
  • Immunity of Foreign Minister
    • Democratic Republic of Congo v Belgium (The Arrest Warrant Case) I.C.J. Rep 2002, p3
      • Belgium issued international arrest warrant against Congo’s Foreign Minister Ndombasi for crimes considered to be grave breaches of International Humanitarian Law (Geneva Conventions & Protocols)
      • Belgium claimed that it could exercise Universal Jurisdiction.
      • Congo argued that it was a violation of principle that a State cannot exercise authority on territory of another State and that it was also a violation of the principle of sovereign equality between States.
• When can a diplomatic mission or the private residence of a diplomatic agent by entered or raided by officials of a receiving state such as police?
  • Article 22 of the Vienna Convention on Diplomatic Relations:
    • Inviolability: The premises of a diplomatic mission (e.g., an embassy or consulate) are inviolable. This means that agents of the receiving state, including police or other officials, are prohibited from entering the premises without the express consent of the head of the mission.
    • Protection Obligation: The receiving state has a special duty to protect the mission’s premises against intrusion, damage, disturbance, and to ensure that the mission can function effectively.
    • No Entry Without Consent: Even in cases of emergency, such as during a fire or security threat, the receiving state must first obtain the consent of the head of the mission before entering the premises. This strict protection underscores the principle of inviolability and the sovereignty that the mission enjoys within the host state.
  • Private Residence of a Diplomatic Agent:
    • Article 30 of the Vienna Convention on Diplomatic Relations:
    • Inviolability: The private residence of a diplomatic agent enjoys the same inviolability and protection as the premises of the mission. This means that the residence cannot be entered or searched by the receiving state’s officials, including police, without the explicit consent of the diplomatic agent.
    • Protection of Family Members: The inviolability extends not just to the diplomatic agent but also to their family members who live in the reside
• Are there any circumstances when the immunity of a diplomatic agent can be waived? If so when and by who?
  • Consent of the Diplomatic Agent or Mission:
    • Express Consent: The only scenario in which the receiving state’s officials can lawfully enter the diplomatic mission or the private residence of a diplomatic agent is if they have obtained the express consent of the head of the mission (for the embassy or consulate) or the diplomatic agent (for their residence). This consent must be clear and unambiguous.
    • Practical Considerations: In practice, such consent might be granted in situations where the diplomatic mission or residence is under direct threat (e.g., a fire or an immediate security risk) and the head of the mission or diplomatic agent agrees that entry is necessary to protect lives or property.
  • Waiver of Immunity:
    • Waiver by the Sending State: The sending state (the state that the diplomat represents) can waive the inviolability of the mission premises or the diplomatic agent’s residence. This waiver must be explicit and is usually done in writing. Waivers are rare because they undermine the protections that diplomatic missions and agents enjoy under international law.
    • No Implied Waiver: Simply permitting a police officer or official to enter the premises in one instance does not constitute a general waiver of immunity or inviolability. Each instance requires separate consent.
      Problem Question
• Problem scenario
• The foreign minister of Istok, Bled Brod, is visiting Zealand as part of a trade mission to finalise a bilateral free trade agreement between the two countries. During her visit she is staying in the Istokian ambassador’s residence which is located on the grounds of the embassy compound. The visit is considered a major step forward by Zealand in relations between the two countries. For nearly a decade there was very limited engagement between the two states after the hijacking of an Air Zealand passenger plane at Istok’s major airport and the murder of 176 passengers of whom 54 were Zealand citizens by the hijackers in 2008. Following this tragedy, Istok refused to allow Zealander officials to enter Istokian territory to investigate the incident despite Zealand’s persistent requests.
• Zealand’s Defence Department has now acquired credible information that Foreign Minister Brod was one of the hijackers involved in the murder of its nationals. These acts occurred prior to her appointment as foreign minister. As a result of this information, the Attorney-General has obtained a warrant for the arrest of Foreign Minister Brod and intends to arrest her while she is visiting Zealand.
• To do this, Zealand police will need to enter the Istokian embassy to gain custody of the foreign minister.
• Advise the Attorney-General of Zealand regarding:

  • a) whether Bled Brod has immunity from criminal jurisdiction; and

    • BB will enjoy immunity b/c a serving foreign min enjoys absolute immunity (arrest warrant). Ratione Persone: The acts before office as well as during office. This protects the nature of job.
      • See Pinochet after leaving office you only have Raitione materiae, only covers official functions.
    • ICC Art 27(2) - Rome Statute immunities shall not bar the court from exercising jurisdiction. IE this means foreign ministers do not have the immunity they have in general IL
      • Art 6-8 detail the offences that the ICC can exercise jurisdiction over, this alleged hijacking wouldn’t neessarily fit that category
      • Zealand must be a part to the Rome statute.
      • Al Bashir case - there is no head of state immunity before the ICC
    • Immunity from civil jurisdiction is absolute (Al Adsani)
    • She can be prosecuted by istok or istok can waive immunity

  • b) whether the Zealand police can enter the embassy to arrest her.

    • Under the Vienna Convention, the Diplomatic Mission and its premises are considered to inviolable (Art.22).
    • Protects independence and against interference
    • Consequences - severe diplomatic repercussions, including suspending diplomatic relations. Including actions before ICJ
    • The agents of the receiving State may not enter them, except with the consent of the head of mission.
      • The receiving State is under a special duty to take all appropriate steps to protect the premises of the mission against any intrusion or damage and to prevent any disturbance of the peace of the mission or impairment of its dignity.
    • Exceptions
      • Prevention of disturbance of the peace of the mission or impairment
      • Hosting state
        • Protection against intrusion
          • paragraph 2 of Article 22 requires the authorities of the receiving State—normally the police—to prevent unauthorized intrusion on mission premises and on the request of the head of the mission to expel intruders.
        • Protection against damage
      • Consent Art 22 - express
      • Art 9 VCDR ‘persona non grata’
    • Cases
      • State Practices
        • Tehran Hostages Case (US v Iran) - US did not enter although there were US hostages in the embassy
        • S 22(2) - Failure of Iran to protect the embassy was a violation.
        • Armed Activities case (DRC Uganda from 2005 - look it up what did the court say.)
      • Julian Assange
      • Jamal Khashoggi

  • Persona non-gratis

    • Would she still have ‘head of state immunity’
      • Separate question to Art 9 and VCDRs scheme for ‘diplomatic agents’
    • Is she sort of person covered by art 9
      • ‘Any member of the diplomatic staff’

  • Diplomat Negligence

    • Under the Vienna Convention, diplomats are considered inviolable and not subject to arrest or detention (art 29).
    • They are absolutely immune from criminal prosecution (art 31) and are immune from civil suite except in relation private activities outside their official functions (art 31).
    • Unless the sending state expressly waives in Art 32
    • Art 1(e) - a diplomatic agent is the head of mission or member of the staff
    • Art 37 - if you are a national of the receiving state you do not have immunity, but otherwise it lists all the people who will be immune

Week 6: Law of Treaties

Questions

1. What is the relationship between the Vienna Convention on the Law of Treaties and customary international law?

• Vienna Convention on the Law of Treaties 1969 (VCLT)
  • VCLT is considered the ‘Treaty on Treaties’ and as such, provides the principles of law relating to the drafting, application and interpretation of other treaties.
  • It is largely recognised as the pre-eminent statement on the law of treaties, even by those States who are not parties to the Convention.
  • Codification of Customary International Law

2. What are the basic elements of a treaty?

• Elements of treaty making
  • Proposal for a treaty
  • Capacity to conclude treaties
  • Adoption of the text
  • Authentication of the text
  • Consent to be bound

3. How is consent of a state to be bound by a treaty established?

• Article 7
  • 1. A person is considered as representing a State for the purpose …for the purpose of expressing the consent of the State to be bound by a treaty if:
    • (a) …produces appropriate full powers; or (b) it appears from the practice of the States concerned …that their intention ….
  • 2. In virtue of their functions and without having to produce full powers, the following are considered as representing their State:
    • (a) Heads of State, Heads of Government and Ministers for Foreign Affairs…;
    • (b) heads of diplomatic missions…;
    • (c) representatives accredited by States to an international conference or to an international organization

4. What is a reservation? What is a declaration? How do we determine whether a reservation is compatible with a treaty?

• Article 2(1)(d)
  • ‘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 to modify the legal effect of certain provisions of the treaty in their application to that State”
• ‘Interpretative declaration def’ means a unilateral statement, however phrased or named, made by a State or an international organization, whereby that State or that organization purports to specify or clarify the meaning or scope of a treaty or of certain of its provisions.”

5. What is the obligation of a signatory state prior to the entry into force of the treaty?

• Obligation created should be governed by international law. cf a Memorandum of Understanding (MOU) which does not necessarily contain an intention to create legal obligations under international law.
• . When the parties to the later treaty do not include all the parties to the earlier one:
  • (a) as between States parties to both treaties the same rule applies as in paragraph 3; (b) as between a State party to both treaties and a State party to only one of the treaties, the treaty to which both States are parties governs their mutual rights and obligations.

TOCAS - Tutorial

• R of Botox
• Sonor = sepia
• Tonka = teal
• Aris = apple green

Week 7: Law of Treaties (II)

Questions:

1. What are the rules in respect of treaty interpretation? When can supplementary materials be used to interpret a treaty?

• Treaty Interpretation – Three Schools of Thought
  • Textual School – ‘Ordinary approach’ - It looks into the ‘ordinary’ meaning of the text;
  • Intentionalist School – ‘Subjective approach’ - attempted to ascertain the intention of the drafters;
  • Teleological School – ‘Teleological approach’ - construe a treaty provision in light of the object and purpose of the treaty.
• Article 31(1) of the Vienna Convention incorporates elements of all three schools
• Supplementary’ means of interpretation
  • Recourse may be had to supplementary means of interpretation, including the preparatory work of the treaty and the circumstances of its conclusion, in order to confirm the meaning resulting from the application of article 31, or to determine the meaning when the interpretation according to article 31 :
  • (a) leaves the meanmg ambiguous or obscure; or
  • (b) leads to a result which is manifestly absurd or unreasonable.

2. When can a third state be bound by the provisions of a treaty?

• Art. 34-36 - treaties do not create obligations or rights for third states without their consent.
• Free zones of Upper Savoy and the District of Gex case (1932) (France v Switzerland) PCIJ reports, Series A/B, No. 46

3. When can a treaty be rendered invalid? How can the consent of a party to a treaty be impeached?

• Article 42(1)
  • The validity of a treaty or of the consent of a State to be bound by a treaty may be impeached only through the application of the present Convention.
    • VCLT envisages roughly two categories of situations when invalidity may be invoked
    • Relative grounds for invalidity (Articles 46–50); - Treaties are voidable
    • Absolute grounds for invalidity (Articles 51–3) – Treaties are void ab initio
• Validity of treaty
  • Non compliance with municipal law
  • Error
  • Fraud and corruption
  • Coercion
  • Peremptory norms of general international law

4. Is non-compliance with a state’s domestic law a grounds for rendering the treaty invalid?

• Non-compliance with municipal law – (Relative ground)
  • Constitutional ultra vires
    • Article 46

5. What is a material breach? Who can invoke material breach of a bilateral treaty? Who can invoke material breach of a multilateral treaty?

• Material breach
  • Article 60
    • 1. A material breach of a bilateral treaty by one of the parties entitles the other to invoke the breach as a ground for terminating the treaty or suspending its operation in whole or in part.
    • 2. A material breach of a multilateral treaty
      • (a) the other parties by unanimous agreement to suspend the operation of the treaty in whole or in part or to terminate it either:
        • (i) in the relations between themselves and the defaulting State, or
        • (ii) as between all the parties;
      • (b) a party specially affected by the breach to invoke it as a ground for suspending the operation of the treaty in whole or in part in the relations between itself and the defaulting State;
      • (c) any party other than the defaulting State to invoke the breach as a ground for suspending the operation of the treaty in whole or in part with respect to itself if the treaty is of such a character that a material breach of its provisions by one party radically changes the position of every party with respect to the further performance of its obligations under the treaty.
    • 3. A material breach of a treaty, for the purposes of this article, consists in:
      • (a) a repudiation of the treaty not sanctioned by the present Convention; or
      • (b) the violation of a provision essential to the accomplishment of the object or purpose of the treaty.
        Problem scenario: the TOCAS Treaty (part II)
        Sunor, Tonka, Aris and the Republic of Botox entered into the TOCAS three years ago, to cooperate to control people trafficking and smuggling across the bay of Voron (also known as the bay of Bulcan) region.
        Since then, smuggling of illicit drugs has decreased, and the joint patrols undertaken by the four states have resulted in the prosecution of a number of high level criminal operatives. People from the region and beyond, however, have continued to seek out Aris as a major migration destination. Accordingly, Aris last year began construction of a wall to control unauthorised access to its territory. The wall stretches along the border between Aris and Sunor, and continues eastwards along the border between Aris and Tonka. In order to stop people crossing into Aris at the ‘Goldian Gap’, (where Aris, Tonka and Sunor share a border) Aris has entered into a bilateral agreement with Sunor to extend the wall along the border between Tonka and Sunor. During the building of the wall, Aris redirects its patrols so that they are solely patrolling its own borders, rather than the borders of all States Parties to the TOCAS.
        Tonka and the Republic of Botox meet to respond to Aris’ actions. The Republic of Botox proposes that it will withdraw from common and joint patrols of the region. Both Tonka and the Republic of Botox also cease providing intelligence and data under the treaty. Tonka then announces a six month freeze on cooperating with Sunor at the Tonka/Sunor border. The result will be that Sunor’s strict drug laws will not be respected at the border.
        With reference to:
• The negotiated treaty text (of the week of Sept 9th)
• The background to the treaty (Canvas, Treaties I)
• The Vienna Convention on the Law of Treaties and cases / state practice interpreting it
• Other applicable sources of law
  Consider the legal implications of the States’ Parties to the TOCAS’ actions, and any implications under the law of treaties for the States’ Parties.
• Aris - Botox position
  • Art 62
    • (1)(a)-(1)(b)
    • (2)(b)
  • Art 60
  • Art 31(1)
  • Aris have violated the terms of the treaty
    • Preamble ‘cooperation’
    • Art 8 ‘patrols’ of the contracting parties (should take together)
• Tonka / Botox
  • By stopping patrols
  • Art 60(3)(b) a material breach = abreach of a provision essential to the objejct and purpose
  • In a multilateral treaty 60(2)(a) in whole or part terminate or suspend between T and Aris or between T and everyone
  • Danube Dams case
  • T’s actions not to share intelligence and freeze cooperation at the T/S border, these are not material breaches bc we’ve taken the option to suspend which means we aren’t obliged to do those things
  • Customary International Law - was never a basis in custom (no opinio juris - Rights of Passage) - treaty displaced the custom
  • Can treaty displace custom/treaty
• Sunor
  • Aris actions are a material breach - not through the bilateral agreement but their decision to stop the patrols (object and purpose)
  • Tonka’s suspension of border cooperation cannot be suspended under the treaty because of its existence in custom
    • The Nicaragua case says custom and treaty can coexist on the same point at the same time.
• Aris
  • Aris’ actions are not a breach of the treaty - we are just cooperating, redirecting our patrols still fits within the definition of patrol activities, according to the preamble are and art 10, and 8, this is proportionate patrols / contributions in action
  • This is a temporary suspension (Art 60)
  • Art 62(1) - not a fundamental, reasonably foreseeable change
  • Because we have not engaged in a material breach, then the actions by other states are material breaches
  • The bilateral agreement with Sunor is legitimate and does not impact the treaty. But T and RoB this goes against the object and purpose (regional security)
• Rejoinder
  • T - This is not an economic proportionality
  • Meaning of contributions proportionate to their economy
  • Act 31: ordinary meaning in the context and in light of the object and purpose
  • Art 32:’supplementary info’
  • But - 60(2)(b) - specially affected state
  • 60(2)(c) - if the treaty is of such a character that if breach by one party radically affects the obligations of every party.

Week 8: State Responsibility

• What is the difference between primary and secondary rules in international law?
  • Primary rules: States are bound by rules of international law
  • Secondary rules:
    • -These concern the consequences of violations of international legal obligations (both under treaty & Customary International Law)
    • -These apply to all states
    • -These have principally been developed through customary international law
• What is the status of the Articles on State Responsibility prepared by the International Law Commission?
  • The Articles on Responsibility of States for Internationally Wrongful Acts, prepared by the International Law Commission, are widely regarded as reflecting customary international law but remain non-binding since they have not been formalized into a treaty.
  • Statute of the International Law Commission
    • Article 1, paragraph 1, -“Commission shall have for its object the promotion of the progressive development of international law and its codification”.
    • Article 15-progressive development means “the preparation of draft conventions on subjects which have not yet been regulated by international law or in regard to which the law has not yet been sufficiently developed in the practice of States”
    • Codification means “the more precise formulation and systematization of rules of international law in fields where there already has been extensive State practice, precedent and doctrine”
• What are the elements of establishing international responsibility of a state? Why is establishing attribution significant?
  • State Responsibility arises in the following circumstances:
    • 1. Existence of an international legal obligation in force between two or more states, or a legal obligation to the ‘international community’ (obligations erga omnes)
    • 2. Occurrence of an act or omission that:
      • I. is attributed to that state
      • Ii. breaches that obligation (‘internationally wrongful act’)
    • 3. The state cannot raise any circumstances or justifications for the internationally wrongful act that would preclude wrongfulness
    • 4. Another state (the ‘invoking’ state) is entitled to make a claim (ie question of admissibility)
  • • Obligation
    • Attribution to the state of an Act or Omission
    • Breach + Injury
    • Circumstances precluding wrongfulness
    • Invocation of State Responsibility ⇒ Reparations
• When is a state responsible for the act of another state?
  • “A State which aids or assists another State in the commission of an internationally wrongful act by the latter is internationally responsible for doing so if:
    • (a) that State does so with knowledge of the circumstances of the internationally wrongful act; and
    • (b) the act would be internationally wrongful if committed by that State”.
  • Endorsed in Genocide (Bosnia and Herzegovina v Serbia and Montenegro) ICJ Reports 2007, p43, at p 217 as analogise to ‘complicity’
  • -Acts of a person ‘directed or controlled’ by the State – eg where third parties (usually a rebel group) act under the direction of another State
  • Plurality of responsible States
    • “1. Where several States are responsible for the same internationally wrongful act, the responsibility of each State may be invoked in relation to that act.
    • 2. Paragraph 1:
      • (a) does not permit any injured State to recover, by way of compensation, more than the damage it has suffered;
      • (b) is without prejudice to any right of recourse against the other responsible States.”
• Which circumstances can preclude wrongfulness in respect of international responsibility? What are the consequences of invoking these circumstances?
  • Circumstances Precluding Wrongfulness
    • Chapter V: Articles 20 – 26
      • Consent (Article 20)
      • Self-defense pursuant to UN Charter (Article 21)
      • Countermeasures (Article 22 and Articles 49-54)
      • Force majeure (Article 23)
      • Distress (Article 24)
      • Necessity (Article 25)
    • NB: None of the above can apply to breaches of jus cogens norms (Article 26)

Tutorial Question

Monkravia is an authoritarian state whose political system is based on the teachings of the radical political theorist Iva Lotacrazy. One of the states that Monkravia has diplomatic relations with is the state of Bontland.
Both Bontland and Monkravia are parties to a treaty known as the Lunga Accord which entered into force for both States on 1 January 2018. The Lunga Accord provides for an exchange of military personnel. Under the Lunga Accord members of the Monkravian military can be sent for training in principles of democratic governance at the Bontland Military Academy
The Lunga Accord set out several provisions relating to how these military exchanges would occur. Article 7(1) of the Lunga Accord provides:
“The authorities of Monkravia shall have exclusive jurisdiction over members of the Monkravia military on exchange under this accord and any accompanying civilian dependants accompanying them with respect to all offences committed within Bontland and otherwise punishable by the law of Bontland excepting for an offence relating to the security of Bontland. Bontland retains exclusive jurisdiction in relation to all offences relating to the security of Bontland that may be committed by Monkravia military personnel on exchange under this Accord.”
Article 7(2) of the Lunga Accord then goes on to provide:
“an offence relating to the security of a State shall include:
(i) treason against the State;
(ii) sabotage, espionage or violation of any law relating to official secrets of that State, or secrets relating to the national defence of that State.
Article 7(3) of the Lunga Accord further clarifies
“The foregoing provisions of this Article shall not confer on the military authorities of Monkravia any right to exercise jurisdiction over persons who are nationals of or ordinarily resident in Bontland unless they are members of the Monkravia military forces.
Article 8 of the Lunga Accord also provides:

• The military authorities of Monkravia and the authorities of Bontland shall assist each other in accordance with arrangements to be agreed to by them in the arrest of members of the Monkravia military or their dependants in Bontland and in handing them over to the authority which is to exercise jurisdiction in accordance with the above provisions.
• The authorities of Bontland shall notify promptly the military authorities of Monkravia of the arrest of any member of the Monkravia military or their dependants.
  In 2021 Bontland enacted the Status of Forces Implementation Act (hereinafter the SFIA). The effect of the SFIA was to transpose the provisions of the Lunga Accord into Bontlands domestic law. A copy of the Lunga Accord was annexed to the SFIA and section 17(b) of the SFIA provided “The Lunga Accord shall have force of Law in Bontland.”
  For a number of years the Lunga Accord was implemented by both states without incident. However, in March 2024 Colonel Mongus Drinkongo was sent on exchange to Bontland and began attending the Bontland Military Academy. Colonel Drinkongo is the second eldest son of the President of Monkravia and is widely expected to succeed his father as President of Monkravia one day. Three weeks after arriving in Bontland Colonel Drinkongo murdered another soldier who made derogatory comments about his father. The dead soldier was the son of a well-respected political journalist from Bontland.
  Colonel Drinkongo has been arrested by Bontland Police. Upon his arrest, Colonel Drinkongo appeared in a closed session of the Central Bontland Magistrates court and inter alia invoked his immunity from jurisdiction for the alleged crime pursuant to the Lunga Accord. Before the magistrate presiding and on a subsequent appeal to the Bontland Supreme Court his claim to immunity was rejected and his trial on the charge of murder has been set down for 4 December 2024. The Bontland police did not notify Monkravia of Colonel Drinkongos arrest. Monkravia only became aware of his arrest due to media reporting of the appeal to the Bontland Supreme Court.
  Outraged by his sons detention President Drinkongo has demanded his son be immediately released. As part of a multi-pronged diplomatic initiative to resolve this crisis Monkravia has commenced proceedings before the International Court of Justice (ICJ) alleging that Bontland is in contravention of its obligations under international law.
  You work as an intern at the ICJ. One of the ICJ judges has asked you to assist her to prepare for the upcoming hearing of the case. Please prepare a memorandum of advice to the judge focussing on issues of State responsibility. In particular, the judge has asked you to highlight in your advice:
• What are the primary obligations of Bontland?
  • All offences except for offences relating to security of Bontland are to under exclusive jurisdiction of Monkravia
  • The authorities of Bontland are required to notify military authorities of any arrest
  • Bontland and Monkravia will issue joint operation for arrest
• Has Bontland committed any internationally wrongful act(s)? If so explain how.
  • Yes, violated treaty obligations as apply to Colonel Drinkongo, as murder is not a crime of state security per the treaty (Art 8 of Lunga, Art 4 of VLT)
  • Bontland did not jointly arrest Colonel, did not notify Monkravia, held multiple trials without jurisdiction
• Can any internationally wrongful act be attributed to Bontland? If so explain how?
  Assume that all States are members of the United Nations and all States have been parties to the 1969 Vienna Convention on the Law of Treaties (VCLT) since its entry into force in 1980. Both Monkravia and Bontland have filed declarations accepting the compulsory jurisdiction of the ICJ in relation to all disputes arising under international law including under the Lunga Accord pursuant to article 36(2) of the ICJ Statute.
  Obligations (under Primary Law)
• Lunga Acccord - VCLT
  • Art 7(1)
    • M has exclusive jurisdiction over M’s military EXCEPT offences of the security of B
  • Art 7(2)
    • Defines offenses against the security of B
  • Art 8 -
    • M and B are to assist each other in arrest of members of the M military and hading over to the authority that exercises jurisdiction.
    • B has to notify the M authorities of military or dependants
• Breach
  • Bontland
    • did not jointly arrest Colone (Art 8),
    • did not notify Monkravia (Art 8)
    • held multiple trials without jurisdiction
      • murder is not a crime of state security per the treaty (Art 7 of Lunga)
    • VCLT - material breach 60(1) repudiation of the treaty of the violation of a provision that is essential to the object and purpose of the treaty.
• Attribution
  • Courts (Judicature) and Bontland Police (Executive) are a clear organ of Bontland
    • ARSIWA Art 4 - ‘Organs of the state’ (Armed Activities Case - DRC Uganda).
    • If students arrest him -
      • Article 11 - ILC Draft Articles (ARSIWA) - conduct acknowledged and accepted by the state
        • United States Diplomatic and Consular Staff in Iran (US v Iran) (‘Tehran Hostages Case’) ICJ Rep 1980

Week 9: State Responsibility II

Questions

• Which circumstances can preclude wrongfulness in respect of international responsibility? What are the consequences of invoking these circumstances?
  • ARSIWA (Articles on State Responsibility)
  • Circumstances Precluding Wrongfulness
    • Chapter V: Articles 20 – 26
      • Consent (Article 20)
        • See ARSIWA
      • Self-defense pursuant to UN Charter (Article 21)
        • Self defence Nuclear Weapons Ad Op - it won’t be wrongful if it is lawful use of self defence.
      • Countermeasures (Article 22 and Articles 49-54)
        • Defined in Ch II of Part 3 must be proportionate (Air services agreement); instrumental in character to induce compliance
      • Force majeure (Article 23)
        • irresistible force, unforeseen event.
        • The wrongful act has to be involuntary ie there’s no other option but to act
        • Rainbow Warrior - absolute and material impossibility
      • Distress (Article 24)
        • no other reasonable way, in a situation of distress, of saving the author’s life or the lives of other persons entrusted to the author’s care”
          • See Art 24(2) exceptions
          • Rainbow Warrior case - no peril to the individual therefore no distress
      • Necessity (Article 25)
        • Where it’s the only way for a state to safeguard an essential interest against a grave and immanent peril.
        • Most controversial and also most invoked.
        • Can’t seriously impair the itnerests of another state or international community as a whole (Danue Dams)
  • Article 27 Consequences of invoking a circumstance precluding wrongfulness
    • The invocation of a circumstance precluding wrongfulness in accordance with this chapter is without prejudice to:
      • (a) compliance with the obligation in question, if and to the extent that the circumstance precluding wrongfulness no longer exists;
      • (b) the question of compensation for any material loss caused by the act in question.
• What are the legal consequences of an internationally wrongful act?
  • ARSIWA (Articles on State Responsibility)
  • Consequences of an Internationally Wrongful Act
    • Article 28
      • The legal responsibility of a State which is entailed by an internationally wrongful act in accordance with the provisions of part one involves legal consequences as set out in this part.
    • Article 29: Continued duty of performance
      • Gabčíkovo-Nagymaros Project case (Hungary v. Slovakia), ICJ Reports 1997, p.7
        • The legal consequences of an internationally wrongful act under this part do not affect the continued duty of the responsible State to perform the obligation breached.
    • Article 30: Cessation and non-repetition
      • The State responsible for the internationally wrongful act is under an obligation:
        • (a) to cease that act, if it is continuing
        • (b) to offer appropriate assurances and guarantees of non-repetition, if circumstances so require.
      • Rainbow Warrior case (New Zealand v France) (1990) RIAA Vol.XX, 217
      • Arrest Warrant of 11 April 2000 (Democratic Republic of the Congo v Belgium) ICJ Reports 2002, p.3
    • Article 31: Obligation to make full reparation
      • 1. The responsible State is under an obligation to make full reparation for the injury caused by the internationally wrongful act.
      • 2. Injury includes any damage, whether material or moral, caused by the internationally wrongful act of a State.
• What is the obligation of cessation? What is the obligation to offer assurances and guarantees of non-repetition?
  • ARSIWA (Articles on State Responsibility)Article 30: Cessation and non-repetition
    • The State responsible for the internationally wrongful act is under an obligation:
      • (a) to cease that act, if it is continuing
      • (b) to offer appropriate assurances and guarantees of non-repetition, if circumstances so require
• What is the obligation to make full reparation? What are the different forms of reparation? Is there a hierarchy?
  • Article 31: Obligation to make full reparation
    • 1. The responsible State is under an obligation to make full reparation for the injury caused by the internationally wrongful act.
    • 2. Injury includes any damage, whether material or moral, caused by the internationally wrongful act of a State.
  • Article 34: Form of Reparations
    • Full reparation for the injury caused by the internationally wrongful act shall take the form of restitution, compensation and satisfaction, either singly or in combination in accordance with the provisions of this chapter.
• What is a peremptory norm? How is a serious breach of a peremptory norm defined?
  • Peremptory norms of general international law
    • Article 53 VCLT
      • …a peremptory norm of general international law is a norm accepted and recognized by the international community of States as a whole as a norm from which no derogation is permitted and which can be modified only by a subsequent norm of general international law having the same character.
      • Barcelona Traction, Light and Power Company Ltd case (Belgium v. Spain), Second Phase, ICJ Reports 1970, p.3
  • Jus cogens
• Who can invoke the international responsibility of a state?
  • Article 42: Invocation by Injured State
    • A state is entitled as an injured State to invoke the responsibility of another State if the obligation breached is owed to:
      • (a) that state individually; or
      • (b) a group of states including that State, or the international community as a whole,
      • and the breach of the obligation:
      • (i) specially affects that state; or
      • (ii) is of such a character as radically to change the position of all the other states to which the obligation is owed with respect to the further performance of the obligation.
  • Article 46 Plurality of Injured States
    • Where several States are injured by the same internationally wrongful act, each injured State may separately invoke the responsibility of the State which has committed the internationally wrongful act.
  • Article 47 Plurality of Responsible States
    • Where several States are responsible for the same internationally wrongful act, the responsibility of each State may be invoked in relation to that act.
    • Paragraph 1:
      • (a) does not permit any injured State to recover, by way of compensation, more than the damage it has suffered;
      • (b) is without prejudice to any right of recourse against the other responsible States.
  • Article 45: Loss of the Right to Invoke Responsibility
  • Article 48: Invocation by a State other than an injured State
    • 1. Any state other than an injured state is entitled to invoke the responsibility of another state in accordance with paragraph 2 if:
      • (a) the obligation breached is owed to a group of States including that State, and is established for the protection of a collective interest of the group; or
      • (b) the obligation breached is owed to the international community as a whole.
    • 2. Any state entitled to invoke responsibility under paragraph 1 may claim from the responsible state:
      • (a) cessation of the internationally wrongful act, and assurances and guarantees of non-repetition in accordance with article 30; and
      • (b) performance of the obligation of reparation in accordance with the preceding articles, in the interest of the injured state or of the beneficiaries of the obligation breached.
  • Application of the Convention on the Prevention and Punishment of the Crime of Genocide (The Gambia v Myanmar) (Provisional Measures [2020] ICJ Reports 3

4.2.3 Tutorial: Problem Question (Part 2)

Review the answer to the question on State Responsibility which we developed in our last class. Building on that answer consider the remaining issues relating to State Responsibility to give a complete answer to this question. In particular, your answer this week should consider issues such as:

• Are there any circumstances precluding wrongfulness that Bontland could invoke in this case?
• What are the legal consequences of Bontland’s internationally wrongful act (s)?
• Who can invoke the international responsibility of Bontland

Week 10

Questions

• Is the use of force prohibited under international law? Cite legal authorities for your answer.
  • UN Charter
    • Art 2(3)-All Members shall settle their international disputes by peaceful means in such a manner that international peace and security, and justice, are not endangered.
    • Art 2(4)- All Members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the Purposes of the United Nations.
• Are there any exceptions to the prohibition on the use of force? If so what are these exceptions?
  • Self defense
  • Collective Measurements
• In what circumstances does a state have the right to use force in self defence?
  • UNILATERAL USE OF FORCE: RIGHT OF SELF DEFENCE
    • Art 51 United Nations 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 international peace and security. Measures taken by Members in the exercise of this right of self-defence shall be immediately reported to the Security Council and shall not in any way affect the authority and responsibility of the Security Council under the present Charter to take at any time such action as it deems necessary in order to maintain or restore international peace and security.”
    • Customary IL (Nicaragua Merits, para 175-178)
    • Individual and collective nature (Nicaragua).
  • Necessity:
    • “necessity of self defence, instant, overwhelming, leaving no choice of means, and no moment for deliberation”(Caroline Case, 1837)
      • Anticipatory self defence?
      • Preemptive self defence?
  • Proportional
    • Force in self defence must be proportional to the armed attack
  • Armed Attack
    • Gravity/ Threshold for Armed Attack
      • Oil Platforms Case (Merits) (Iran v United States) ICJ Reports (2003), p161
      • Partial Award: Ius Ad Bellum: Ethiopia’s Claim 1-8, Eriteria-Ethiopia Claims Commission (2005)
      • Can a non-state group whose acts are not attributable to a state commit an armed attack?
  • Support of Rebels
    • Case Concerning Military and Paramilitary Activities in and Against Nicaragua (Nicaragua v. United States) (Merits) (1986)
    • Armed Activities Case (Democratic Republic of Congo v Uganda) ICJ Rep 2005, p 168.
• How does the UN Charter regulate the use of force?
  • USE OF FORCE: COLLECTIVE MEASURES THROUGH THE UNITED NATIONS
    • UN Charter Ch VI & VII
    • Security Council and use of force (next slide)
    • Chapter VI – investigation of disputes, recommendations for settlement of disputes
      • UN Charter Arts 33 - 38
    • Chapter VII – enforcement action Arts 39 - 50
    • Jurisdiction
      • Art 39
    • Powers of Enforcement
      • Art 41- measures short of use of armed force
      • Art 42 – measures including force
      • Art 43 – 50 mechanisms by which forceful measures shall be organised.
  • GENERAL ASSEMBLY AND THE USE OF FORCE
    • Arts 11(2) and 12 UN Charter.
    • Resolution Uniting in Peace 1950.
    • Certain Expenses of the United Nations Case (ICJ Rep 1962 p 151)
      • while under Art 11(2) the SC has primary responsibility in the sphere of peace and security, it does not have exclusive responsibility

Use of Force

In the second hour of today’s tutorial, we will work through the following problem question:
The States of Sunor, Tonka, Aris and the Republic of Botox are all located around the Bay of Voron (also known as the bay of Bulcan). Sunor and Tonka are longstanding allies, but Aris and the Republic of Botox have a tense relationship. In fact, for the last few months, the Botoxian opposition has been sniping across Aris’ border into Botox, aiming to kill military border patrols, but also harming civilian infrastructure and causing injuries to civilians, further inflaming tensions between the two states.
In early 2024, the President of the Republic of Botox died. He was succeeded by his youngest daughter, General Bo, who was previously the head of the Botoxian secret service and is considered the most hard-line of the Botoxian dynasty. General Bo is well known for her views that the Republic of Botox should reclaim territory it lost to Sunor in the 13th century, when the Botoxian dynasty ruled much of the Voron region.
Several of the Botoxian Presidential family’s other children (Dr Via Bo, and Mr Oro Bo) promptly disappeared from public view when General Bo took office.
In September 2024, one of General Bo’s siblings (Dr Via) is revealed to be living amongst the Botoxian opposition in Aris, where intelligence shows she has taken on an important leadership role amassing small arms for the opposition through the illicit drugs trade. Photos of Dr Via at a reception with Aris’ top military commander, and lunching at a high end hotel with Aris’ prime minister, have been published in a Botoxian newspaper.
General Bo makes a public statement that Dr. Via is to be considered an enemy of the Botoxian people, and demands that Aris “must hand over Dr. Via, who is a dangerous terrorist, within 48 hours or the consequences will be Aris’s”. The Botoxian military begin mobilizing.
Aris’ government responds that it is not aware that Dr. Via has committed any offences under Aris’ laws and ‘condemns Botox’s dangerous rhetoric, which is contrary to Botox’s obligations under the UN Charter’.
Three days later, just before dawn, a series of bombs explode in Aris’ largest city bordering Botox. Three residential apartment buildings are destroyed. Botox claims responsibility, and announces that ‘we have wiped out the viper’s nest of terrorists, headed by Dr. Via, whose very existence threatened the survival of the Botoxian state’. At the same time, the Botoxian military cross the border into Sunor and capture almost a third of the small state’s territory. Botox announces that its control of Sunor is necessary in order to find Mr Oro Bo, who it believes Sunor to be harbouring, and that, ‘in any event, the territory is rightfully Botoxian’. Tonka announces that, ‘any attack on Sunor is an attack on Tonka’ and launches two targeted strikes on Botoxian military installations in Botox.
As an international legal advisor to your state, advise your state on the legality of its actions under the law on the use of force (jus ad bellum).
Consider particularly

• Are any of the different uses of force prohibited?
  • Claimed self-defense
    • Annexation of sunor
    • Pre-emptive self defense claim when bombing aris
• Is an exception to the prohibition engaged?
  • Self defence - Aris
    • Armed Attack
      • Severity threshold
        • Botox claims self defense claim is based damaging civilian infrastructure and indiscriminate attacks as well as military targets.
          • Oil Platforms Case (Merits) (Iran v United States) ICJ Reports (2003), p161
          • Opposition leader has been meeting with rebel government
      • Severity and attribution - effective control (Nicaragua) ‘directed and controlled’ ARSIWA
        • The severity is medium, and the attribution must be to a state - this is where the argument fails, however there is basis based on israel and hezballah, usa and afghanistan that non-state group whose acts are attributable to a state when they commit an armed attack and do not stop them and or enable them
    • Imminence (Caroline case)
      • Overwhelming, instant, leaving no choice of mean or moment of deliberation
    • Porportionate
      • Bombings cause similar damage as lconsidering that infrastructure was damaged rather than individual buildings
  • Annexation of Sunor
• What obligations does the state have under Chapter VI and VII of the UN Charter?
  • Chapter VI – investigation of disputes, recommendations for settlement of disputes
    • UN Charter Arts 33 - 38
  • Chapter VII – enforcement action Arts 39 - 50

• How can the UN Security Council Respond? What about the UN General Assembly?

All four states are members of the United Nations. Tonka has a permanent seat on the UN Security Council.

Week 11 Settlement of Disputes

By the end of this week, you should be able to answer the following questions. There will be time during tutorials to test and clarify your understanding of the answers.
Questions

• Are states under an obligation to settle disputes peacefully? If so what is the legal authority for this obligation?
  • UN Charter Art 2(3):
    • ‘All Members shall settle their international disputes by peaceful means in such a manner that international peace and security, and justice, are not endangered.’
• What are the key methods of international dispute resolution? What is the key differences between arbitration and judicial settlement of disputes?
  - UN Charter Ch. VI: Pacific Settlement of Disputes (Art 33 – 38)
  - 33(1) ‘The parties to any dispute, the continuance of which is likely to endanger the maintenance of international peace and security, shall, first of all, seek a solution by
  - Negotiation
  - Enquiry
  - Mediation
  - Conciliation
  - Arbitration
  - judicial settlement
  - resort to regional agencies or arrangements
  - or other peaceful means of their own choice’
  - 33(2) ‘The Security Council shall, when it deems necessary, call upon the parties to settle their disputes by such means.’
  • Dispute Resolution through Non-Legal Means
    • Negotiation
    • Enquiry
    • Mediation
    • Conciliation
• What are the key differences between the jurisdiction of the International Court of Justice in contentious cases and in its advisory jurisdiction?
  • ICJ: Contentious Jurisdiction - Stages
    • 1. Jurisdiction
      • Contentious
      • Advisory
    • 2. Admissibility
      • Exhaustion of local remedies eg?
    • 3. Preliminary Measures
      • Provisional measures? (art 41)
    • 4. Merits
      • Judgments
    • 5. Remedies
  • ICJ: Contentious Jurisdiction
    • ‘heads of jurisdiction’:
      • 1. States may refer a dispute to ICJ (art 36(1))
      • 2. A treaty may refer to ICJ as dispute mechanism procedure (art 36(1), 36(2)(a)) ie comprommissory clauses
      • 3. State make a declaration under ‘optional clause’ (art 36(2)) recognizing compulsory jurisdiction
        • Nicaragua (jurisdiction and Admissibility – para 59-60)
        • Principle of reciprocity:
          • Norwegian Loans case
        • Reservations under optional clause:
          • eg Whaling Case (Australia v Japan, NZ intervening) 2014
      • 4. Forum Prorogatum – express or implied consent
        • Mutual Assistance Case (Djibouti v France) (2008)
        • Armed Activities (New Application 2002)
    • If jurisdiction is in dispute, ICJ will decide (art 36(6))
      • eg Certain Phosphate Lands (Naaru v Australia) 1992
    • Jurisdiction and Provisional Measures
      • Art 41 ICJ Stat: ICJ has power to indicate provisional measures if circumstances so require, to protect rights of parties
      • App of Genocide Convention Provisional Measures order April 8 1993
      • Gambia v Myanmar Provisional Measures order 23 Jan 2020
    • Provisional measures = binding
      • La Grand (Germany v US) ICJ Rep 2001, 466
• When does the International Court of Justice have compulsory jurisdiction?
  • State make a declaration under ‘optional clause’ (art 36(2)) recognizing compulsory jurisdiction
    • Nicaragua (jurisdiction and Admissibility – para 59-60)
    • Principle of reciprocity:
      • Norwegian Loans case
    • Reservations under optional clause:
      • eg Whaling Case (Australia v Japan, NZ intervening) 2014
• What are provisional measures? When can the International Court of Justice make an order for provisional measures?
  - Art 41 ICJ Stat: ICJ has power to indicate provisional measures if circumstances so require, to protect rights of parties
  - App of Genocide Convention Provisional Measures order April 8 1993
  - Gambia v Myanmar Provisional Measures order 23 Jan 2020
  • Provisional measures = binding
    • La Grand (Germany v US) ICJ Rep 2001, 466
  • I.e., international injunction
• Ch VI and VII of the UN Charter
  • Role of UNGA and UNSC
  • Art 33 - state obligation try to settle it peacefully
  • Art 35 - SC and GA can receive disputes. SC has power to recommend measures under Art 36
  • Art 37 - if no settlement by peaceful means, shall refer to SC
  • Art 37(2) - if the SC deems it’s an issue, then ‘it shall decide whether to take action’
  • What can the SC do?
    • Economic or diplomatic sanctions (Ch 6)
    • Forceful means (Ch 7)
    • Can refer dispute to the ICJ (Art 36(3) UN Charter)
  • Can the GA also take action?
  • Art 11(2) GA may discuss matters and make recommendations (Art 11, Art 12) (Art 11(2) not strictly observed)