Jus Cogens Norms Quiz

Welcome and Introduction

• Course: 70108 Public International Law, Spring 2024
• Professor: Jessie Hohmann
• Subject coordinator
• University of Technology Sydney, Faculty of Law

Acknowledging Country

• Eora People: Saltwater People of the Sydney area
• Website: https://www.eorapeople.com.au/

Overview

• What is expected of the student?
• How is the subject delivered?
• How will the student be assessed?
• What next? (steps for further preparation)

What is expected of me?

• Preparation and self-directed study
• 6 credit points = 150 hours of study (including 36 hours of in-class time)
• Reading, note-taking, tutorials, and assignments
• Active in-class and group participation
• Intellectual curiosity and critical thinking
• Required text:
  • David Harris & Sandesh Sivakumaran, Cases and Materials on International Law (9th ed, Sweet & Maxwell, 2020)
• Recommended texts:
  • Gleider Hernández, International Law (2nd ed, Oxford University Press, 2022)
  • Sue Gonzalez Hauck, Raffaela Kunz & Max Milas (eds), Public International Law: A Multi-Perspective Approach (Taylor & Francis, 2024)
  • Emily Crawford, Alison Pert & Ben Saul, Public International Law (Cambridge University Press)
• UTS Library Guides on International Law and domestic Legal Sources in the Module
• Further recommended/required texts listed on Canvas

What is expected of me – open, respectful discussion

• Active discussion in tutorials requires respect
• Disagree respectfully
• Criticize ideas, not the person, using credible sources.
• Respect, tolerance, inclusion, and anti-racism are expected.

How is the Subject Delivered?

• Lecture: 1 hour per week, live on Tuesdays, 12-1pm via zoom
• Lecture content precedes tutorial content by one week.
• Tutorial: 2 hours per week, active participation is expected

Who are the tutors and lecturers?

• Lectures: Professors David Leary and Jessie Hohmann
• Tutorials: All teaching staff listed at a given link

How will I be assessed?

• Assessment task 1: Written critical analysis (20%, due Friday 13th September 12pm)
• Assessment task 2: Group audiovisual presentation (20%, due Weeks 9-11)
• Class participation (10%, assessed across the term)
• Assessment task 3: Final examination (50%, during the UTS Examination Period, 2-hour exam within a 3-hour window)

What content is assessed?

• All course content (weeks 1-12) including first week's lecture on sources.
• Lecture content
• Tutorial content
• Required readings
• Additional readings/research.

What knowledge and skills are assessed?

• Knowledge and skills across diverse subject aspects.
• Learning objectives and course intended learning outcomes. Subjects, like Legal knowledge, critical analysis and evaluation, communication, and collaboration

What Next?

• Watch the lecture on 'sources of international law' (module 0.3)
• Prepare for your first tutorial by going through modules 0 and 1 & preparing and reading.
• Tutorials will be in week 1.

Sources of Public International Law

• Introduction to sources of Public International Law
• Treaties
• Customary international law
• General principles of law
• Judicial decisions
• Writings
• Other sources of law like Jus cogens and hierarchy of sources

What is a treaty?

• An international agreement concluded between States in written form and governed by international law
• Whether embodied in a single instrument or two or more related ones
• Whatever its particular designation.

Treaties and their relationship with customary international law

• Treaty provisions can become customary international law. Customary international law can be part of treaties.
• Three ways of this:
• Treaty declares pre-existing customary international law (Nicaragua)
• Treaty represents crystallization of an emerging rule of custom (North Sea Shelf)
• Subsequent practice makes treaty rule into custom.

Case Concerning Military and Paramilitary Activities in and Against Nicaragua (Nicaragua v. United States)

• Customary international law continues to exist alongside treaty law.
• If customary norm and treaty norm have the same content, the customary norm doesn't lose its validity due to treaty law

Customary International Law

• 2 elements:

1. State practice (objective facts): duration, consistency, repetition, and generality
2. Opinio juris (subjective belief): does the state feel bound to act in a certain way

• Maxim: opinio juris sive necessitatis
• Examples:
• North Sea Continental Shelf cases (FR Germany v Denmark, FR Germany v The Netherlands)
• Lotus case (France v Turkey)

Customary International Law -the persistent objector

• 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)
• The general toleration of foreign States with regard to the Norwegian practice for over 60 years was an unchallenged fact.

Customary international law: Opinio Juris

• If a state objected to a rule of custom while it was forming, that state isn't bound by that custom if they maintain the objection persistently.

Can there ever be a "regional" customary international law?

• The Party asserting the custom must prove it is established by consistent and uniform usage in practice by the States in question.

General Principles of Law

• Principles generally recognized by civilized nations
• Examples include: estoppel, and precautionary principle

Judicial Decisions

• Article 59 of ICJ Statute: No doctrine of precedent in international law
• Judicial decisions and teachings of the most highly qualified publicists are subsidiary means for determining rules of law.

Writings of most highly qualified publicists

• Examples include: Hugo Grotius, James Crawford, and Hersch Lauterpacht

Other sources of Law

• Unilateral acts of States (Nuclear Tests Case, Australia v France)
• UN General Assembly Resolutions (Legality of the Threat or Use of Nuclear Weapons) 'Soft law', non-binding statements of intention, may offer guidance to future environmental law development, eg Stockholm Declaration & Rio Declaration.

Hierarchy of Sources and Jus Cogens

• Jus cogens (compelling law): peremptory norms from which no derogation is allowed
• Examples: Prohibition on use of force; prohibition against genocide; prohibition against slavery;
• prohibition against apartheid; prohibition against torture; right to self-determination.

Legal Personality and Recognition

• Concept of personality
• Criteria of statehood
• Creation of states
• Principle of self-determination
• Other subjects of international law
• Recognition of states and governments

The Subjects of PIL

• States (primary subjects)
• Exercise sovereignty
• International legal personality
• Other entities (international organizations, individuals, NGOs, transnational corporations etc.)

Criteria for Statehood

• Montevideo Convention on the Rights and Duties of States 1933, art 1:
• Permanent Population
• Defined territory
• Government
• Capacity to enter into relations with other States.

Criteria for Statehood (a) Permanent Population

• Population size irrelevant
• Administrative stability is required, not just size

Criteria for Statehood (b) Territory

• Minimum size of territory in international law not relevant
• Not all of a state's territory has to be populated.
• Territory does need defined borders.

Criteria for Statehood (c) Government

• What form of government a state has (effective).
• Exceptions (eg Aaland Islands)

Criteria for Statehood (d) Capacity to enter into relations with other states

• Essential requirement connected to independence.
• Must be legally independent from other states
• Does not take economic or political pressures on a state into account.

Criteria for Statehood (Key Questions)

• Is there a relationship of subordination and superiority?
• Any external sovereignty? Is there subordination to another state? (eg Norfolk Island, Hong Kong)
• This is a separate consideration to a state's subordination to PIL.

Criteria for Statehood (d) Capacity to enter into legal relations with other states

• Situations not affecting formal independence (delegation of certain functions/military not affecting independence)
• Voluntary surrender. ('right of entering international engagements is an attribute of sovereignty' SS Wimbledon Case.

Other Criteria for Statehood?

• Membership in International Organisations (Art 4 UN Charter requires 'peace-loving state' accepting obligations), States which act 'lawfully', Apartheid SA, Bantustans (Were they a state?) Southern Rhodesia, Self-determination.

Creation of States in PIL

• Decolonisation/independence of non-state territory (eg India/Pakistan 1947, USA 1776, Kenya 1963)
• Secession (eg Southern Sudan 2011, Kosovo from Serbia 2008)
• Partition of existing state (eg Slovakia and Czech Republic)
• Unification (eg East and West Germany 1990)
• Continuity of IL Obligations (upon succession, reconfiguration, partition: pre-existing obligations)

Rights and Duties of States

• Statehood is a legally circumscribed claim of right to govern a certain territory
• Rights and Duties of States include
  • Sovereign equality
  • Right to peaceful co-existence
  • Obligation to comply with treaty/customary IL
  • Enjoyment of rights and duties under state responsibility

Self-Determination

• What is the principle of self-determination?
• Who has the right to self-determination under international law?

Mandate System, c. 1926-

• Map of Mandate territories.

Self-Determination - pre UN Charter

• League of Nations Mandate System.
• Principles to apply trust of civilisation.
• The best method of giving practical effect to this principle is that the tutelage of such peoples should be entrusted the advancement of nations which can best undertake this responsibility.

Self-Determination – After UN Charter

• Friendly relations among nations based on the principle of equal rights and self-determination of peoples.
• The subjection of peoples to alien subjugation constitutes a denial to fundamental human rights.
• All people right to self-determination, including their choice political status and pursuing development. (Common Sahara Art 1 ICCPR and ICESCR 1966)- Western Sahara (ICJ Advisory Opinion, 1975)

Western Sahara

• Question for Court: Was Western Sahara a terra nullius at the time of colonisation? Was there any link between Western Sahara territory and Morocco and Mauritania at the time? (No ties of territorial sovereignty)
• Self-determination is customary IL (para 56).

Other International Legal Subjects

• Individuals
• Multinational Corporations
• Regional organizations
• Insurgents or national liberation movements
• To what extent do they have rights and duties?
• What is the extent of their personality?
• International organizations

Other International Legal Subjects- International Organizations

• What is an IO? (International Organization)
• Does it have international legal personality?
• Did UN have the ability to bring an international claim? (Reparations for Injuries Ad Op 1949)

Recognition in International Law

• Important act affecting state's ability to exercise rights and responsibilities.
• Distinction between recognition of states and governments.

Two Theories of Recognition (of states)

• Constitutive theory: a State becomes an international legal subject only by recognition
• Declaratory theory: a State exists independently of recognition; state recognition merely acknowledges a fact and confers customary rights and obligations.

Does State Practice reflect declaratory or constitutive theory?

• Declaratory: States make claims under IL against unrecognized states.
• Constitutive: US relation with Israel and North Korea

What do the sources say (Declaratory or Constitutive)?

• Declaratory sources:
  • Montevideo Convention Arts 3, 6, 7
  • Tinoco arbitration
  • Badinter Commission Opinion No 1
• Sources: recognition is 'purely declaratory'
• Recognition is a discretionary act.
• Writings of publicists (H&S p 138)

Modes of Recognition

• Explicit or implicit (Montevideo art 7)
• Diplomatic Relations
• Making a bilateral treaty
• Supporting membership at the UN
• Arranging an international conference
• Role of intention

The Political Nature of Recognition

• States may use recognition or the withholding of recognition for national policy reasons.

The legal side of Recognition?

• Badinter Commission Opinion No 10
• Recognition is a discretionary act.
• States only subject to international law, especially those prohibiting the use of force and guaranteeing the rights of ethnic, religious, or linguistic minorities.
• Southern Rhodesia (unlawfulness of minority rule).

Does the practice of state recognition add additional criteria to statehood?

• Respecting the UN Charter, Guarantees of ethnic and national groups, minorities' rights
• Respect for inviolability of frontiers
• Acceptance of all relevant commitments
• Commitment to settle disputes

Recognition of Governments

• Recognition of governments is distinct from recognition of states.
• Recognition of Government relevant after unconventional changes (eg revolution, coup)

Tinoco Arbitration

• Non recognition by governments cannot outweigh the evidence (de facto character).

The relationship between international law and domestic law

• Introduction to the relationship between International and Municipal Law
• International law in municipal law
• Australian law and international law
• Treaties and Australian law
• International law and its influence on the common law – customary international law
• Some examples of treaty law and its construction/interpretation of legislation.

International Law in Municipal Law

• Monism/Dualism (two separate legal orders)
• Incorporation /Transformation.

Australia and International Law

• Emergence of Australia's int'l legal personality
• 1901 Federation, 1923 Imperial Conferences, 1931 Statute of Westminster (UK), 1931 Statute of Westminster (Cth), 1942, 1946, 1986, 1999.

Treaties and Australian Law

• Treaty-making + domestic transformation process (JSCOT)
• Resolution of appointment (matters arising, questions, references from ministers or houses)
• Process of parliamentary review

Treaties and Australian Law- Basic Principles

• Treaties and Australian Law (Do not form part of Australian law unless incorporated through legislation)
• Different ways to incorporate treaties (in an act, or as a schedule to legislation or simply deem force of law).
• Is only part of the treaty is incorporated for legislation than the rest is not enforceable (municipal law).

International law and its influence on the Australian common law- customary int'l law:

• Unssettled relationship, conflicting authorities. Common law countries (eg UK, Canada) often favor incorporation.
• Key foundational Australian cases and how they favor a transformation approach
  • Polites v Commonwealth
  • Chow Hung Ching v The King
  • Nulyarimma v Thompson
• Some additional criteria to whether a crime was recognized under custom:
  • Is it a jus cogens prohibition
  • Is there no implementing legislation

International law and its influence on the Australian common law- customary int'l law (Nulyarimma v Thompson):

• The case with the key question of whether genocide is now a recognized crime in Australian law.
• The majority of the court held that as no implementing or conforming statutes or laws exist yet, genocide is not yet a crime recognized by Australian domestic law. However, a dissenting judge saw genocide as part of Australian common law.

International law and its influence on the Australian common law- customary int'l law- other cases:

• Thorpe v Kennett; and Sumner v UK
• Cth parliament has since passed legislation to reflect international law obligations.

International law and its influence on the Australian common law - informing presumptions:

• Mabo (No 2) – common law not necessarily conform with int'l law but int'l law legitimate and important influence on common law developments
• Cautious approach to presumptions of statutory interpretation – Intends to give effect to Australia's obligations (both treaty & Customary IL)
• Similar cases like Al-Kateb v Godwin
• Criticism of a judge in these cases.

Some Examples of International Law

• Relevant international law, treaties and interpreting legislation relevant case.

Next Lecture: Jurisdiction & Immunities (Part 1)

• Introduction: Prescriptive and enforcement jurisdiction.
• Civil jurisdiction: Nationality principle, Territorial principle, Passive personality principle, Protective principle, Universality jurisdiction
• Criminal jurisdiction

State Jurisdiction

• Introduction: Prescriptive and enforcement jurisdiction
• Civil jurisdiction
• Criminal jurisdiction
  • Nationality principle
  • Territorial principle
  • Passive personality principle
  • Protective principle
  • Universal jurisdiction

Jurisdiction

• Jurisdiction is an aspect of sovereignty, referring to a state's competence under international law.
• It includes regulating the conduct of natural and legal persons and the activities of all government branches (legislative, executive, and judicial).
• Prescriptive jurisdiction (legislative power to make laws)
• Enforcement jurisdiction (power to enforce laws).

Civil jurisdiction

• Different views on the law concerning civil jurisdiction
• State may exercise jurisdiction in private law matters.
• Important cases: Alien Tort Claims Act, and discussion of France v Turkey

Criminal jurisdiction

• 5 possible principles for exercising criminal jurisdiction: Territorial, Nationality, Passive Personality, Protective, and Universality.

Territorial Principle

• Based on the state's undoubted right to legislate within its territory or any matter within its territory
• Right is absolute; a reflection of sovereignty
• Territory includes all land mass, seas, airspace and shipping and aircraft registered in that State

Territorial Principle

• The first and foremost restriction imposed by international law on a State—failing the exercise of a permissive rule to the contrary — is that it may not exercise its power in any form in the territory of another State (Lotus case).

Nationality Principle

• States have the right to regulate their nationals abroad.
• This principle is based on a state's right to make and enforce laws regarding its nationals' conduct abroad
• Different view/test of determining nationality based on ‘real and effective nationality' for corporate entities

Nationality Principle

• This principle allows a state to subject any citizen to its laws whether or not the citizen is present abroad.
• States are connected to their national in terms of interests and sentiment..

Passive Personality Principle

• Allowing a state to prosecute a foreign national if that person's actions affect a state’s national, whether or not that person is present in the state’s territory Discussed and tested in United States v Yunis (no 2).

Protective Principle

• States have jurisdiction in relation to conduct that affects their vital national interests abroad.
• Used in espionage cases and to prosecute terrorists /terrorist training.

Protective Principle - Joyce v DPP

• The accused who was an American citizen obtained a British passport and engaged in acts against the interest of the UK, was prosecuted and found guilty due to the doctrine of the protective principle.

Universality Principle

• Certain acts that transcend the boundaries of any State (e.g., piracy, torture, war crimes, crimes against humanity).
• No nexus needed between the State exercising jurisdiction and the act itself

Universality Principle - Attorney-General v Eichmann

• Nazi official responsible for Germany's 'Final Solution'.
• Question of whether Israel could exercise universal jurisdiction in his case.

Universality Principle - Further

• “These crimes...shocked the conscience of nations" (are actions that are important to international law).
• The state's own acts need the link to the crime
• Criminal Jurisdiction:
• No nexus between the forum state and the action
• Essential is not committed by or against state nationals
• Nature of the action / crime the important factor which triggers the jurisdiction

Universality Principle - DRC vs Belgium

• Belgium issued an arrest warrant for Congo's Foreign Minister Ndombasi for international crimes.
• Congo argued this was a violation of the principle of state sovereignty.

Universality Principle

• Several states agreed that that there is no established practice of states exercising universal jurisdiction, however this does not mean that it would be unlawful.

Associated Concepts

• Multiple sources; concurrent jurisdiction; Lockerbie case; Scotland - territorial; USA – nationality / protective / passive personality; Libya – nationality; Malta - territorial; final result of Scottish High Court, applying Scottish Law in Netherlands.

Next Lecture: Immunity from Jurisdiction

• Introduction.
• State immunity (rationale, restrictive doctrine, who is entitled, waiver of immunity, Heads of State, foreign ministers)
• Diplomatic immunity (general rules, inviolability of missions, agents, immunity from action for official acts, personal immunity from the jurisdiction of local courts)
• Consular immunity (lesser privileges)

State Immunity

• Concept of immunity
• Absolute immunity
• Restrictive immunity

State Immunity-Absolute Immunity

• The Schooner Exchange v McFaddon case discussion about the concept including the immunity of a French vessel called The Exchange from U.S. jurisdiction.

State Immunity-Absolute Immunity

• Perfect equality of sovereigns and the waiving of the exercise of territorial sovereignty
• A public vessel and its soldiers etc. acting under immediate command of the sovereign is in effect immune to be tried

State Immunity-Restrictive Immunity

• Cuban state-owned enterprise sold two shiploads of sugar that was diverted and subject to seizure in a UK port
• Discussion about the difference between absolute and restrictive immunity

State Immunity-Restrictive Immunity - Trendex Trading Corp v Central Bank of Nigeria

• Doctrine of immunity to foreign governments (or alter ego)
• The organisation must have been under government control and exercising governmental functions (not only a separate law to consider)

State Immunity

• Jurisdictional Immunities of the State (Germany v Italy, with Greece intervening)
• State not deprived of immunity because of severe human rights violations
• Rules of state immunity are procedural, and not whether conduct is lawful or not

State Immunity- Foreign State Immunities Act 1985 (Cth)

• 9 General immunity from jurisdiction
• Except as provided by or under this Act, a foreign State is immune from the jurisdiction of the courts of Australia in a proceeding.
• 11 Commercial transactions

State Immunity-Foreign State Immunities Act 1985 (Cth) – Contracts/Employment/Personal Injuries

• Section 12 Contracts of Employment, 13 Personal Injury & damage to property, 14 ownership, use & possession or property, 15 (copyright, patents), 16 membership etc, 17 Arbitration, 18-Actions in rem 19-Bills of exchange, 20-Taxes, United Nations Convention on Jurisdictional Immunities.

Heads of State, heads of government and foreign ministers

• Immunity ratione personae – wide personal immunity extending to totality of acts
• Immunity ratione materiae – applies not to officials but to acts performed in their official state capacity

Immunity of Head of State/former Head of State

• Case discussion on Pinochet. Summary of the court holding re Torture.
• Further discussion on Al-Bashir.

Immunity of Foreign Minister

• Case concerning Belgium and Congo re Arrest Warrant
• Discussion about the universality jurisdiction and issues on state immunity

Diplomatic and Consular Immunity

• Immunities from all administrative, civil and criminal jurisdiction in the receiving State.
• Diplomatic family enjoy similar immunities (unless citizen of receiving state).
• Functional necessity of their roles to protect officials in these positions.
• State can waive the immunity of their officials.

Diplomatic & Consular Immunity

• Diplomatic agents are inviolable and not subject to arrest or detention.
• Absolutely immune from criminal prosecution except in relation to private activities outside their official functions.
• Important: Immunity belongs to the State, not the diplomat, and can be waived by the sending State.
• Vienna Convention on Diplomatic Relations & Consular Privileges and Immunities Act 1967.

Diplomatic & Consular Immunity - Cases

• US Diplomatic and Consular Staff in Tehran Case discussion.
• Armed Activities Case discussion on the Congo and Uganda.

Diplomatic & Consular Immunity – further

• Immunity of Consular staff similar to diplomatic agents (but is less broad)
• The Vienna Convention on Consular Relations.

Next Lecture: Law of Treaties

Law of Treaties – Part 1

• The Vienna Convention on the Law of Treaties (VCLT)
• Definition of a treaty
• Making of treaties
• Reservations and declarations

Definition of a Treaty

• An international agreement concluded between States in written form and governed by international law.

'Concluded between states' – Article 3

• Present Convention doesn't apply to agreements between states, but this fact does not affect
• The fact that the present Convention does not apply to international agreements concluded between States and other subjects of international law or between such other subjects of international law ... shall not affect: (a) the legal force of such agreements; (b) the application to them of any of the rules set forth in the present Convention to which they would be subject under international law independently of the Convention; (c) the application of the Convention to the relations of States as between themselves under international agreements to which other subjects of international law are also parties.

'in written form' – Article 3

• It does not apply to oral agreements.
• There is no particular form, intention is key. (Temple of Preah Vihear)

‘governed by international law’ – Article 2(1)(a)

• Intention of the parties to create legal relations is essential.
• Terms must be clear about whether the obligation or agreement is under international law.

Treaty Making Process

• Proposal for a treaty
• Capacity to conclude treaties
• Adoption of Text
• Authentication of Text
• Consent to be bound
• State Signature and Ratification
• Treaty Enters into Force/State Accession
• The steps and procedures to produce a treaty, including the need for full legal powers (ANNEX 3- MODEL INSTRUMENT OF FULL POWERS)

Entry into Force

• Obligations and the point that a treaty comes into place.

Pacta Sunt Servanda

• A treaty is legally binding once requirements for entry into force are met
• A state is obliged to refrain from acts that go against a treaty until it's intention is declared by the state otherwise to not be a party .

Relation with internal law – Article 27

• A party may not invoke the provisions of its internal law as justification for its failure to perform a treaty.
• This rule is without prejudice to article 46.

Non-retroactivity - Article 28

• Unless a different intention appears from the treaty, or otherwise is established, the provisions do not bind a party in relation to any act or fact which took place or any situation which ceased to exist before the treaty entered into force with respect to that party.

Territorial Application - Article 29

• Unless a different intention appears, or is otherwise established, a treaty is binding upon each party in respect of its entire territory.

Successive Treaties on the Same Subject - Article 30

• When a treaty specifies that it is subject to, or that it is not to be considered, incompatible with, an earlier or later treaty, the provisions of that other treaty prevails.

Depository – Article 82

• The present convention is subject to ratification and the instrument of ratification is deposited to the Secretary-General of the United Nations.

Reservations

• Definition and function
• Customary International Law and the VCLT
• Incompatibility with the object and purpose (Article 19)
• Withdrawal of reservations and objections (Article 20, 21 & 22)
• Effects of reservations.

Acceptance and Objection to a Reservation - Article 20 (4)

• Reservation acceptance - reserving state becomes a party to the treaty inter se
• Objection - Doesn't necessarily prevent treaty entry into force.

Effects of Reservations - Article 21

• Modifies treaty for the reserving state relative to other party to which it relates.
• Modifies provisions to the same extent the other party does
• Reservation doesn't change obligations between other state parties.

Withdrawal of reservations and objections - Article 22

• Can be withdrawn at any time.

Next Lecture: Treaty interpretation

Treaty Interpretation – Three Schools of Thought

• Textual school, Intentionalist school and Teleological school
• Article 31(1) of the Vienna Convention

Competence of the General Assembly for the Admission of a State to the United Nations

What is a Context in Treaty Interpretations - Article 31(2) & 31(3)

• Context consists of agreements between parties, instruments, subsequent agreements, practice, relevant rules of international law

Supplementary means of interpretation - Article 32

• Supplementary means to be used when Article 31 is unclear.
• Includes preparatory work of the treaty and circumstances of its conclusion.

The Principle of Effectiveness – Interpretation of Peace Treaties Case (Second Phase)

• The maxim “Ut res magis valeat quam pereat” (it is better for a thing to have effect than to fail)
• It can give the Court the right to interpret treaty provisions in a way which is in line with their letter and spirit.

Multiple Languages - Article 33

• Where a treaty is in two or more languages, each text has equal authority unless the treaty provides or states otherwise that one text shall prevail.
• The terms of a treaty are equally presumed to have the same meaning in each authentic text.

Hierarchy in different approaches of Interpretations

• VCLT does not presuppose a hierarchy between different approaches of interpretation
• Libya v Chad [1994] ICJ case -Interpretation must be based on the treaty text.

Third States– Articles 34–36

• A treaty does not create either obligations or rights for a third state without its consent
• Example of this case: Free zones of Upper Savoy and the District of Gex case An obligation arises for a third State from a provision of a treaty if the parties to the treaty intend the provision to be the means of establishing the obligation and the third State expressly accepts that obligation in writing OR if the parties intended the provision to grant a right to a third state.
• A State exercising such a right shall comply with any conditions for its exercise that are in the treaty.

Validity of Treaty– Article 42(1)

• The validity of a treaty, or of consent of a state to be bound by a treaty, can be challenged only by the application of VCLT
• Relative/ Absolute grounds of invalidity
• Examples relevant to the points: Non-compliance with municipal law / error / fraud/corruption / coercion/new peremptory norm. -Article 46 (non compliance with municipal law): State cannot rely on non-compliance with its own laws as invalidating its consent to the treaty -Article 47 (ultra vires of representatives): Consent expressed by a representative who acted outside their authority can be challenged – however the other parties will not have noticed/been notified of that restriction.
• Article 48 (error): An error in a treaty can cause it to be invalidated if the error is factual and fundamental for the states giving its consent, and the state is acting in good faith.
• Article 49 (fraud) If a party was fraudulent, the state can have its consents invalidated..
• Article 50 (corruption): If a state's representative was corrupted, that state can have its consent invalidated..
• Article 51 (coercion of a representative): If a state's representative or consent was coerced, that state can have its consent invalidated…
• Article 52 (coercion of the state):If a treaty's conclusion was coerced by the threat/use of force (violating UN charter), it is considered void

Peremptory norm of general International Law (jus cogens)– Article 53

• A treaty becomes invalid if it conflicts with a peremptory norm (jus cogens) accepted by the international community
• Example of this case would be the case of DRC v Rwanda

Termination, suspension & withdrawal from treaties

• By treaty, consent or incompatible later treaty , Material breach, Supervening impossibility of performance, Fundamental change of circumstances, New peremptory norm

Consequences of invalidity, termination or suspension of treaty

• Consequences of invalidity/termination/suspension
• Separability of treaty provisions
• Loss of right to invoke.

Article 70, 71 & 72 (Consequences of Invalidity/Termination/Suspension)

• Defines the consequences arising from a treaty becoming invalid/terminated/suspended

Next Lecture: State Responsibility 1

Module 5: State Responsibility (Part 1)

• Introduction
• The ILC Draft Article on State responsibility
• Parts 1, 2, 3, 4(Part IV).
• Internationally wrongful Acts, Attribution, Breach etc

Introduction to State Responsibility and ILC Draft Article

• Basics of the concept of State responsibility.
• A state is responsible when it breaches its obligations arising out of their international legal obligations.
• International legal obligations arise from a variety of sources including treaty and customary international law.
• Article 1. of the 2001 ILC Draft Articles on State Responsibility. states that the conduct of any state organ is considered an act of state, and it also details some of the possible ways the responsibility of a state can be invoked.

Elements of State Responsibility

• Existence of an international legal obligation
• Occurrence of an act or omission attributed to the state which is a breach of that obligation.
• The state cannot raise or use any circumstances/justifications which could preclude wrongfulness.
• Another state can invoke state responsibility for a claim.

Attribution to the State - ILC Draft Arts 4 & 5

• Conduct of an organ or persons empowered to exercise governmental authority is considered an act of the state.
• These may be attributable directly to the State (Acts of instructed persons, acts of government agents/officials acting within their authority) or by virtue of the conduct being directed/controlled by the State (Acts exceeding their authority/unauthorised acts from their orders/acts of an insurrectional or other movement).

Attribution to the state (Corfu Channel Case)

• Case discussing whether Albania was responsible for the explosion of a ship in its territorial waters.
• ICJ held that knowledge of mine-laying could not be attributed to the Albanian State merely due to the fact that mines were placed within the state’s territory because the conduct/acts of the state must be attributed to the State (whether authorized or not) for that act to be considered the State’s act.

Attribution to the state (Armed forces—Congo vs Uganda)

• Conduct of members of armed forces is attrited to the State from the point that those acts are part of the conduct of a state organ.

Attribution to the State- ILC Draft Article 5

• Conduct of persons or entities exercising elements of governmental authority.

Attribution to the state-further

• Genocides v Serbia and Montenegro: State acts for acts committed by its organ and those who acts under the direction or control of the other state.
• Germany V US (provisional measures)

Attribution to the state (other cases)

• Discussion on how to attribute acts to a state like the US Diplomatic and Consular Staff in Iran case.
• Also how to attribute the acts of insurrectional or other movements to the State.

Attribution to the State- Article 10 ILC Draft Article

• Conduct of an insurrectional movement which becomes the new government of a state.
• Conduct of a movement (or some other group), which successfully establishes a new state in part of the territory or territory otherwise under administration of the pre-existing state or under its administration, then that State conduct should be considered as the act of the new state

Attribution to the State- Article 11 ILC Draft Articles

• Conduct acknowledged and adopted by a State as its own (actions of persons or group not attributable to the state but the State takes ownership and adopts as its own).

Attribution to the State- other issues

• Further discussing various other instances of when state responsibility for the act or omission of a non-state actor may apply or preclude responsibility.

Breach: Article 12, 13, 14, and 15

• Breach of an international obligation - An act is not in conformity with what is required by an obligation
• Whether a State is bound by the obligation in question and at the time the breach (Article 13).
• Examples of whether and when a breach might occur (ie continuing breach)

Breach

• Summary re what constitutes a breach
• whether the international obligation was in place at the relevant time..
• scope of the international obligation

Circumstances precluding wrongfulness (Chapter V Articles 20 – 26)

• What possible circumstances can preclude wrongdoing to make a state not responsible for an international wrongdoing:
• Consent (Article 20)
• Self-defence (Article 21)
• Countermeasures (Articles 49-54)
• Force majeure (Article 23)
• Distress (Article 24)
• Necessity (

Test your knowledge on the principles of jus cogens norms, including their characteristics and examples. Understand the significance of compelling laws that are recognized as peremptory within international law. This quiz will enhance your grasp of fundamental legal concepts.