International Law PDF

International law 21/10/2024 Entity who has capacity in international law =\>subject; Entity which are capable of posseing international rights and duties. When IL began, it began in international States, now we include individuals. IO gradually start becoming subjects. States are only who are r...

International law 21/10/2024 Entity who has capacity in international law =\>subject; Entity which are capable of posseing international rights and duties. When IL began, it began in international States, now we include individuals. IO gradually start becoming subjects. States are only who are recognized... Partial subjects =\> other than state: IO. =\> limited by documents Rights vs Duties =\> its no same. Establish international standards to advance common interest. The security council power come for the States =\> they allowed to do. Countries can implement and enforce rules. ICJ and the ICC has the ability to decide de DESPUTE. ICRC =\> interesting body, was formed as a private humanitarian initiative, sanctioned by a diplomatic conference in 1863, Particular statutes in IL. Is neutral and impartial. Protect human beings. ( cf. information confidential) ( atypical Subjects) Sovereign Order of Malta =\> it has a govnt, population but not territory (atypical Subjects), capacity to enter in relations Holy See =\> related to Vatican. Sovereign entity: does not have a territory or population (is the Vatican City that has the population) (atypical Subjects) Mandate territoires =\> colo Concept Trusteeship territoires=\> UN concept Internationalized terrotiories=\> unique concept. Adminsitrative functions for certains territories on newly created UN agencies. LLM CCIL 2023 Week Two RSIWA - YouTube https://www.youtube.com/watch?v=9O2-KmLhpSc Transcript: (00:02) hello everyone and welcome to week two of this online course this online module on public international law there are two topics that we will cover in this week the first is responsibility of states for internationally wrongful acts this lecture recorded lecture relates to the topic of responsibility of states the second topic is subjects of international law which we will cover in the live webinar now the topic of responsibility of states for internationally wrongful acts as the name indicates relates to uh (00:45) what happens when a particular State commits an internationally wrongful act meaning that it conducts itself in a way that violates the fundamental principles or its obligations of uh uh that are recognized under International law now this was traditionally part of customary international law in fact there is no treaty which codifies this field of international law so the international law commission which is a very important body under the United Nations system it operates under the uh supervision of the general assembly um decided in um in the (01:25) 1950s or 60s actually that it will embark on a journey to Cod the principles applicable in the context of responsibility of states for internationally wrongful acts now the international law commission comprises 15 experts from around the world who are actually elected by the general assembly of uh the United Nations and the from time to time the international law commission works on codification of international law that is that\'s its mandate meaning that in the absence of a treaty on a particular point and the (02:00) exist existence on of customary international law on that um the international law commission considers that there should not be any doubts related to what the customary international law is and therefore it works on codifying that customary international law into written what are called as articles uh it has undertaken many and important tasks in the past some of which have eventually become converted into treaties an example of that would be the genocide convention the international law commission actually drafted those subsequently the law on (02:36) the sea uh was drafted by the international law commission uh even the Vienna convention on law of treaties which we will study in week three uh which uh uh are basically the rules applicable in the interpretation and application of international treaties was first developed by the international law commission and eventually became adopted as a binding treaty so these articles um on responsibility of states for internationally wrongful acts eventually became adopted by the international law Commission in 2001 (03:12) although as I pointed out it took a good 40 45 years for this process to culminate the short form for ARA which is the acronym for responsibility of states for internationally wrongful acts the short form is also State responsibility simply that this is a cardinal principle of international law and it is necessarily attached to the full legal personality of a state under international law the idea being that if a state has obligations under under international law and if it violates any of those obligations then there must be some (03:51) responsibility of the state right for committing an internationally wrongful act now one thing about the ARA is that it makes no distinction between criminal responsibility of states and civil responsibility of states in fact that distinction does not apply in international law when we talk about State responsibility and I must immediately make a distinction here between State responsibility which doesn\'t matter whether it\'s criminal or civil the consequences are the same as against what in international law we call as (04:28) international criminal responsibility or individual criminal responsibility to be more precise individual criminal responsibility applies to individuals who may have committed violations of international criminal law and international law directly attaches obligations on them and even has a system for enforcement of obligations when they are violated by individuals in the context of international criminal law As We Know know there\'s the international criminal court there\'s also been in the past the international (05:04) criminal Tribunal for former Yugoslavia the international criminal Tribunal for Rwanda so that\'s the distinction between State responsibility which applies to States and individual criminal responsibility which applies to individuals now another important part uh or or element of this uh document of ARA is that it does not deal with primary rules of inter International responsibility but only secondary what does this mean the primary rules of international responsibility will be contained in specific International treaties for (05:43) example what are the rights and obligations under Trade law will be covered under the WTO agreements and the WTO agreements also identify the key mechanisms by which those rights and obligations can be enforced that is the those constitute the primary rules of international responsibility what the international law commission\'s draft articles do is that they lay down or identify or codify only the secondary rules of international responsibility which means that these are the rules of international responsibility generally (06:19) applicable to all dimensions of international law however there are also circumstances when a particular treaty on a particular particular theme contains specific Provisions that may not be as general as the RCA and therefore it is always important to look for the primary rules but in their absence or if they\'re silent then the secondary rules apply that is RCA applies now I want to explain to you the scheme of RCA there are four parts to RCA the first are the rules on attribution meaning can a particular conduct be (07:04) attributed to a state okay is it can we consider this conduct to belong to a state is it the state who has conducted this particular act once you identify a particular State as the one to which the conduct can be attributed then you move to the next set of rules which are the rules to determine whether the conduct amounts to a breach of international law once you\'ve identified that the conduct is attributed to a state that it amounts to a breach then you look for whether that state has any excuse that might allow that might allow it to (07:47) justify the conduct that it has undertaken which otherwise is a breach and there are rules in oura for what constitute valid excuses and then the final part of oura is when a conduct is attributable to a state it has conducted a breach there are no valid excuses then what are the consequences for the internationally wrongful act all right so this is a schematic chart that I prepared for your convenience and this lecture will actually be developed on the basis of case studies and I\'ll give you those instructions in a bit but in um (08:27) preparation for those case studies uh uh I highly encourage you to first read the articles on state responsibility adopted by the international law commission it\'s linked in the course site and although the chapters in um and parts in the ARA are slightly different than what I\'m explaining to you the way I would like you to read is based on the scheme of the ARA and it\'s much better to understand it in the fashion that I\'m explaining so the first set of rules are on attribution and these this these are (09:02) contained in chapter 1 and chapter 2 of part one of the ARA the second set of rules are related to breaches as I pointed out previously and these are contained in chapter 3 and chapter 4 of part one then you have rules on excuses and these are also in chapter 5 of part one and just to give you a head start the types of excuses that ARA considers as valid are consent that there was no consent given by the state that it was taking the measure in self-defense it was taking the measure in counter as counter measures this is an important concept (09:47) for our session today and also for your discussion forum so we\'ll talk about this in more detail later Force Major which basically is an overwhelming situation of uh n nature such as a tsunami or an earthquake that makes it materially impossible for a state to fulfill its obligations international law like domestic law permits that to be considered an excuse distress is another valid excuse necessity that it was necessary there was no other alternative for the state concerned but to take those measures there are certain um uh (10:24) exceptional circumstances which may justify the use of necessity as an excuse and finally compliance with peremptory Norms of international law peremptory Norms of international law are a concept which we will study in week three in much more detail so I won\'t get into a lot of um uh discussion on this issue in this particular week however just as a head start peremptory norms and remember not preemptory Norms peremptory Norms are also called as use cun Norms use Co Norms or perent Norms of international law are those from which no derogation (11:08) is permitted under any circumstance whatsoever so no action can justify a violation from a peremptory Norm of international law or to put it reverse these peremptory Norms are such where every state is expected to comply with them under any circumstance whatsoever so in terms of the hierarchy of international legal Norms yusan Norms sit at the very top and no circumstance allows a state a justification for violation of those peremptory Norms there are few list of norms um uh which are which can be called as yoans so (11:52) these include for example uh prohibition of genocide uh war crimes crimes against humanity uh prohibition of torture um or for that matter even piracy is considered to be a parmt nothing can justify uh a violation from the norm of prohibition of uh piracy and there are some others okay so if a state conducts itself in a way that requires it to do so because it is complying with a peremptory Norm that can be considered a valid excuse now in terms of consequences there are actually three parts in the ARA which I\'d like you to consider there (12:31) are in part two which is the content of the international responsibility of a state we\'ll look at some of those uh in the lecture today uh the second is part three implementation of the international responsibility of a state which includes the provisions on counter measures which are very important and then part four are the general Provisions so as you read the ARA in preparation for the activity we will be conducting henceforth I\'d like you to bear in mind these four parts or uh sections of the ARA and please do make an attempt to (13:08) read it accordingly now as I pointed out we are going to develop this particular session based on case studies so first of all please go through the articles on responsibility of states for internationally wrongful acts area before you proceed any further this part is mandatory so please do not continue with this presentation until you have gone through the articles on responsibility of States because you will not I promise you you will be wasting your time and you will not be understanding most of what is important in this lecture until you have (13:48) actually gone through the articles on responsibility of states in detail with a lot of careful appreciation of the Articles now the there is a handout with these case studies that we\'ll be discussing that is uploaded on the course site ideally you may go through them and try and answer those case studies on your own before you go ahead with this presentation and this is what I would recommend but it\'s not mandatory the mandatory part is going through the rcar alternatively if you\'re short on time for example you may proceed with (14:25) this presentation without attempting to resolve the handout on your own although this is not recommended I can assure you that you will learn a lot better if you try to solve those case studies on your own before proceeding with the answer key which is the rest of the presentation okay with that let\'s then come to the first case study Arcadia and romia are parties to the International Convention on the law of the Sea by virtue of that ships from romia have the right of innocent passage to travel through ter teritorial Waters of (15:00) Arcadia Arcadia along with a few other countries in the region imposed unilateral sanctions on romia including restrictions on using their airspace and territorial waters on 17 December 2018 three romian passengers and commercial ships passing through territorial Waters of Arcadia were blown up by explosion of Mines Arcadia claims that it did not lay down the mines and agrees that doing so is illegal in international law a fact-f finding mission of the UN Security Council has concluded conclusively that Arcadia itself did not lay down the (15:40) mines it concluded that another neighboring country Cora which has spearheaded the sanctions on romia along with Arcadia had laid down the mines in waters of Arcadia now the question is can Aradia be attributed with an internationally wrongful act under the circumstances so note that the facts here are very peculiar the territorial Waters in which the mines were laid down and exploded and uh basically uh you know destroyed the passenger and commercial ships of romia when not laid down by Arcadia in its own territorial Waters in (16:20) fact it was laid down by a neighboring country Cora which has also joined hands with Arcadia to sanction rudoman and so the question is can Arcadia be attributed with an internationally wrongful act under the circumstances now as you try and apply the provisions of the uh ARA it is important that you pay attention to what exactly is the legal issue in mind in question and here the question really is about attribution so the provisions you are going to look at are those relating to attribution the answer to this (17:02) question is based on Article 2 there is an internationally wrongful Act of a state when conduct consisting of an action or Omission is attributable to the state under international law and constitutes a breach of an international obligation now we have facts here where aredia agrees that there is a breach of an international law obligation because is it would be illegal to do so to lay down mines the question is can the ACT nevertheless be attributed to our to Arcadia although the fact is that it did not lay down the mines and the key Point (17:42) here is that when we evaluate uh the conduct of a state it is not only about the action by the state it is also about an Omission by the state now in international law there is a presumption that every state state is responsible for any action anything that happens from its own territory whether it\'s the territorial land territorial Waters or territorial airspace that country by virtue of sovereignty is responsible internationally for what happens from its territory this does not require cor sorry romia um no Arcadia to actually (18:23) lay down the minds itself if it can be proven that Arcadia omitted to make sure that its territorial Waters were not being used against romia with mines then also Arcadia can be held can be attributed with the conduct now this actually flows from the Corfu Channel case of 1949 which were similar facts here what happened was that British ships were blown up as they were passing through the Albanian territorial Waters Albania uh Albania said we didn\'t do it we didn\'t know about it the icj held that Albania was (19:04) responsible because it knew or must have known of the presence of mines in its territorial Waters and did nothing to warn third states of their presence so international law presumes as I pointed out that anything that happens from your territory or territorial Waters either you know about it or you must have known about it there is a possibility of course for Albania in this case and in a hypothetical case study romia Arcadia to claim that despite the best of its efforts despite all the due diligence it it had to command within (19:45) its within it had within its command it did everything possible to make sure that its territorial Waters were not used for mines and despite that somehow Cora clandestinely planted mines within its territorial Waters and there therefore it should not be attributed with the conduct that is a possibility however international law does not presume the absence of such an um attribution right in other words international law presumes that you know or must have known it is a Monumental task in international law for a state to (20:17) say that although I have sovereignty over my territory although I have full control over my territory I actually didn\'t know what\'s happening from my territory now this is a very important Concept in in the modern world particularly in the context of crossb terrorism as we know there is crossb terrorism in many contexts in many parts of the world a state which allows or which has its territory being used for crossb terrorism cannot Escape an attribution of the conduct particularly of omission to make sure that its territory is not (20:53) used for such conduct and then Escape any respons responsibility under international law so international law will presume that you know or must have known that your territory is being used simply you can\'t have an excuse generally speaking that you didn\'t know the threshold for proving that you conducted all due diligence and despite all of that somehow clandestinely your territory was being used is a very high threshold and international law does not generally accept such an argument okay then we come to the next (21:26) question two French Nationals traveling as tourists in Costa Rica two Costa Rican police officers after failing to extort money from the tourists took them to the local barracks and shot them with their police guns France argues that kosara is responsible but the latter counters that the two police officers acted outside their competence and countermanded orders from superiors can Co kosara be attributed with State responsibility again pay attention to the words we are talking here about attribution so so you must look at the (21:59) provisions on attribution and the correct answer to this is article 7 excess of Authority or contravention of instructions the conduct of an organ of a state or a or of a person or entity empowered to exercise elements of the governmental Authority shall be considered an act of the State under international law if the organ person or entity acts in that capacity even if it exceeds its Authority or contraen instructions you could of course apply some other Provisions in the RCA here article 8 comes to mind but when you (22:39) make a legal argumentation you go to the one that is most directly applicable and in this case it is article 7 and this flows from the care case of 1903 here the question was between France and Mexico the case concerned the murder of a French national by two Mexican officers who who after failing to extort money took care to the local barracks and shot him the commission which was an arbitration commission established to resolve this dispute between the states held that the two officers even if they are deemed to have acted outside their (23:12) competence and even if their superiors Contraband countermanded and Order have involved the responsibility of the state since they acted under the cover of their status as officers and the means placed at their disposal on account of that status Okay the third one the US Army is engaged in many wars around the world but due to domestic pressure there\'s an increasing reduction in US troops on the ground this has affected directly its ability to conduct raids against the Isis and Syrian governmental forces therefore the US has outsourced several (23:51) of its military activities to a private military corporation called Centipede centipede has been instructed by the US military to do everything necessary to protect us interests please do pay attention to the exact instructions okay the language to do everything necessary to protect us interest this is the instruction by the US military however centipede is also told that it will act on its own without being operationally directed or controlled by the US Army without being operationally directed or controlled by the US Army (24:29) although the instructions are do everything necessary to protect us interests can the US be attributed with State responsibility for any illegality conducted by centipede in Syria and these are actual cases as we know the Wagner group employed by uh uh the Russian Federation uh we have had private military corporations employed by the US blackwat and others as well uh and some other countries do that as well right and this is a big question in fact there\'s a NE there\'s an active uh treaty being negotiated uh at this point on the (25:02) respon on the obligations of private military corporations themselves uh for violations of uh International humanitarian law or criminal law okay so can us be attributed uh the direct provision is conduct directed or controlled by a state article 8 the conduct of a person or group of persons shall be considered an act of a state under international law if the person or group of persons is in fact acting under the on the instructions of or under the direction or control of that state in carrying out the conduct now the facts (25:42) of the case are that the centipede is not acting under the direction or control of the US but it is in fact acting on the instructions of the US in such cases us will be attributed with responsibility if for any illegality that\'s conducted by by the private military corporation that it is outsourced it essential uh function of uh um using of force now in terms of jurist prudence this has been an accepted proposition of international law the icj uh addressed this issue in the Nicaragua versus US case um and it also did so in the DRC versus (26:20) Uganda cases uh you know if you are interested in exploring these cases a bit more you can go to the website of the icj and or you can just Google icj Nicaragua versus us or icj DRC versus Uganda and then um on the document on the web page dedicated to these cases on the right side you will find a link for judgments which are the entire judgments or you can also find a link below that for summary of the judgments which are very succinct um brief overviews of the main decisions in the Judgment concerned similarly the international Tribunal for (26:56) the former Yugoslavia has also addressed these issues in The Tadich case so it\'s established international law then indona has entered into an agreement with Australia to Grant full protection to investment by an Australian company in a food packaging Factory on an Indonesian Island these include guarantees of police and security protection Pur to an earthquake and a resultant tsunami police stations on the island were swept away and destroyed Havoc was caused on the island leading to several deaths survivors were (27:35) struggling to find food and resources which led to massive looting including in the Australian Factory Australia has claimed that Indonesia is in breach of its obligations to provide police and security protection what can Indonesia argue in its response okay so we are on uh excuses really here right and uh so the correct provision to apply is article 23 Force majour the wrongfulness of an act of a state not in Conformity with an international obligation of that state is precluded if the ACT is due to force majure that is the occurrence of an (28:18) irresistible force or of an unforeseen event beyond the control of the state making it materially impossible in the circumstances to perform the obligation so this is an excuse a valid excuse this is what Indonesia can argue that there was a force measure a tsunami took place it was beyond the control of the state making it materially impossible to perform the obligations that that Australia wants us to perform paragraph 1 does not apply if in other words Force measure is not a valid excuse if the situation of force measure (28:53) is due either alone or in combination with other factors to the conduct of the state invoking it or the state has assumed the risk of that situation occurring so on point B it\'s clear if if a state is silly enough to accept in an International Investment agreement that it assumes the risk of uh performing the obligation even in case of force majour then too bad for the state they shouldn\'t have entered into a bad contract in the first place then you can\'t bring in Force majure if you have actively given up that as an excuse in (29:25) your agreement on point8 it is generally very difficult to imagine circumstances where a situation of force measure is caused because of the conduct of a state but it\'s not too fanciful either one can imagine for example a nuclear weapons test committed under under the sea under sea tests as we call it uh and that leads to a tsunami then possibly uh the state concerned uh cannot have the excuse of Force Major if if that\'s the state that has conducted such uh actions right so these are some uh examples of of (30:05) that then us and China are parties to the Vienna convention on Consular relations which requires all states parties to ensure the right to Consular access to a citizen of another state party which it has detained Mr X a citizen of China was detained by the Los Angeles Police Department LAPD on allegations of homicide of a disabled child and was denied the right to cular access despite having asked for it several times subsequently Mr X was handed with a death sentence by a criminal court in Los Angeles California (30:41) us and following that was executed China has complained to the icj that us has violated its obligations under the Vienna convention on Consular relations us has argued that it follows a federal constitutional structure and since the execution was ordered by a Judicial Authority in the state of California according to its own state laws the US central government could not have prevented or controlled the judicial process in California and is therefore not internationally responsible if you were the legal adviser of China what arguments can you (31:17) make against the US government stand and what remedies would you suggest that China should seek from the icj now there are two parts to this question one is um what are the legal arguments China can make against the US stand that we follow a federal structure and the executive cannot have control over the Judiciary Etc and the second part of the question uh is what remedies would you suggest the China should seek from the icj now we will discuss the first part of this question the second part is something that we will discuss together (31:52) with the next question which is also on remedies so we\'ll come back to remedies is collectively there on the first question the answer is uh Article 4 and article 32 the conduct of organs of a state the conduct of any state organ shall be considered an act of that State under international law whether the organ exercises legislative executive judicial or any other functions whatever position it holds in the organization of the state and whatever its character as an organization of the central government or of a territorial unit of the state in (32:31) other words international law doesn\'t care about what your internal Arrangements within the state are as long as you are a state and you have statehood then conduct of any of your organs will be considered an or a conduct of your state and you will be internationally responsible if that conduct violates International legal obligations then you have article 32 which is more direct in fact irrelevance of internal law the responsible state may not rely on the provisions of its internal law as justification for (33:03) failure to comply with its obligations under this part so next question Article 4 of the Antarctic treaty states that no new claim or enlargement of an existing claim to territorial sovereignty in Antarctica shall be asserted while the present treaty is in force Argentina has Sten a new claim of sovereignty over an unclaimed area of Antarctica Australia wishes to sue Argentina for violations of the Antarctic treaty Argentina argues that Australia cannot claim to be an injured State because the claimed area is (33:45) nowhere close to the Australian Mainland and Australia has not suffered any injury so Argentina\'s argument is Australia doesn\'t have any right to invoke my responsibility it\'s not an injured state right it has not suffered any injury at all so the first question for you is can Australia claim to be an injured State and since you have read the um ARA you know that there are Provisions which tell us when can a country be considered as an injured State and the second question is if yes then what remedies can Australia claim (34:21) so let\'s look at the first question and then together on question B we will come back to this one and the US China exam Le I gave again previously so the direct answer to this question is article 42 invocation of responsibility by an injured State a state is entitled as an injured state to invoke the responsibility of another state if the obligation breached is ow to that state individually so that\'s not the case here or a group of states including that state or the International Community as a whole and (35:01) the breach of the obligation specifically affects that state this is not true in the case of the facts I gave you or 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 this is where article 42 can be invoked by Australia right because this is a situation where the treaty is a fine balance that has been sought to be achieved between the members of the Antarctica area there are not many there (35:33) are few and the whole idea is that no one should claim raise a stake or claim a stake in any part of the Antarctica uh during the operation of the treaty because that would then radically change the position of all other states it would strike at the very balance that was sought to be achieved uh through that uh through the through that treaty so definitely here um the uh the country can cons consider itself to be an injured State uh because the obligation is owed to a group of States including that state and the breach of the (36:05) obligation is such that uh it can radically change the position of all other states to which the obligation is owed there\'s also a related uh provision article 48 which should be a secondary argument in this uh situation and that is about invocation of responsibility by a state that is not an injured State okay so please do take a look at that that but of course the strongest argument should be that it is an injured State and then assuming that it is not an injured State then article 48 also applies so please do take a look at (36:37) article 48 all right now let\'s come back to the question of Remedies both in the context of us China and in the context of um uh Antarctica uh Australia and Argentina um before we get to the answers I do want to discuss uh the ARA Provisions in terms of uh remedies that that a State uh is entitled to or the um consequences that a state must bear in case it violates any International legal obligation or conducts an internationally wrongful act so there are uh three Provisions which are very important here article 29 it identifies (37:21) the continued duty of performance okay so which basically means that throughout the duration of the violation by a state there always exists a continued duty of performance and the more the country continues violating that will have consequences on the remedies for instance the the compensation that the country concerned might have to pay so this is a very valid consideration that a violation continues to be a violation for the entire duration of the violation because there is a continued duty of performance (37:56) of the obligation by the state that is violating that obligation then article 30 is the obligation of secession meaning that this is one way of uh addressing a violation that you seize to continue with that violation the third which is often used by courts is guarantees of non-repetition so many times what happens is that a particular violation has taken place for example I gave you the uh illustration of of uh China us right uh this is a very valid uh remedy that can be sought by by China and the courts May Grant this that the life has (38:36) lost life has been lost amongst the other reparations or remedies that the court May Grant one of them could be demanding that the US issue a guarantee of non-repetition of such a situation in the future uh this has been often employed by courts including in the interamerican system particularly with in the context of violations of Rights of indigenous peoples the court has often required states to imp issue a guarantee of non repetition and then you have reparations for injuries which is the meat of what we are discussing here (39:12) that is an article 31 of \[Music\] ARA now article 31 talks about reparations for injuries but it\'s in article 34 that you find the different form forms of reparation that can be granted to a victim state so article 34 is titled forms of reparation 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 chart of this chapter Okay so um um restitution is a form of (40:03) reparation which basically relates to the idea of returning the situation back to the status quo anti before a violation has taken place whatever was the situation uh um a state that has violated its obligations must must revert back to that same situation of um as existed before the violation took place compensation is easy to understand it is uh basically uh monetary compensation or compensation in kind uh sometimes compensation in kind is also possible uh for example if lands of indigenous peoples have historically been taken (40:42) away um cities have come up towns have come up then the interamerican court says that they are entitled to compensation uh through the mechanism of alternative land of the same quality okay so compensation can be monetary but it can also be in kind and then you have satisfaction satisfaction is basically a form of reparation which is about acknowledging the guilt by a state that\'s violated the uh obligation and then simple things like apologizing to the victim State that\'s a form of satisfaction or it could be in some (41:17) cases the courts direct a particular state to erect a monument or a statue in memory of a particular uh victim individual if it\'s a human rights uh or criminal law issue uh sometimes courts have even directed uh modification of curriculum to acknowledge this particular part of the history so that the citizens or children are aware of the violations that their country has undertaken uh uh through the uh you know uh uh through the incorporation in the history books of of such things sometimes Memorial days are directed uh (41:52) by courts that\'s a form of satisfaction uh in some cases even museums have been uh have been uh uh asked to be constructed in recognition of these uh violations now these three forms of reparation uh in principle ought to be sequential okay so you look for whether restitution is possible then you look for compensation if restitution not possible then you look for satisfaction if compensation not possible but of course there are times when uh these will need to be done in com combination because restitution may not be an (42:26) adequate form of uh reparation you may also need compensation and sometimes restitution and compensation is not possible so you may also need uh satisfaction but there are also circumstances where restitution and satisfaction may be adequate and the court may feel that compensation is not necessary right so uh there are these circumstances where although in principle these are supposed to be sequential but they operate singly or in combination and sometimes courts will have to be pragmatic depending on the situation and and see what applies best (42:58) to that particular context okay now in terms of the third form of reparation it is interest now interest is not necessarily A reparation for the damage cost whenever a court grants a compensation and the state that is supposed to pay the compensation says that I can\'t do it immediately or within one year as you have directed I need more time for that then the court will also direct interest to be paid on the compensation that it has already directed to be paid by that state okay so this becomes part of the entire (43:31) package of uh the remedies that a particular state is entitled to should another state conduct an internationally wrongful act now in case of China versus US restitution is obviously not possible right because a life is lost so you can\'t resurrect a life um um and so restitution is not an option what about compensation definitely yes compens ation to whom in international law a state that is China can claim and should claim compensation for two different stakeholders one for itself as a state because the US has violated an (44:10) obligation to China under the Vienna convention on Consular relations and second China should also claim compensation on behalf of the family of the victims that the US needs to pay okay these are actually cases uh before the icj uh the Aina case which was US versus Mexico us sentenced a Mexican citizen there was another case US versus Germany uh no Germany versus US L Grand case again a situation where uh the US executed a German citizen without any information to Germany or to this uh person concerned and Germany actually (44:45) came to know about this only through media reports subsequent to the execution went to the icj one and uh of course the idea is to claim compensation not only for the state but also on behalf of the victims of the family and then third is uh satisfaction so in this case uh another thing China can ask the uh icj to do is to guarantee satisfaction or make uh have the US say sorry uh possibly even uh ask for a monument for the person why not you always as as a part of legal practice it is a as a rule uh you ask for the moon (45:24) you ask for everything that\'s possible that you may be entitled to and let the court then decide what it wants to give you but you should ask for everything possible uh and also in this context there will be the guarantee of non-repetition which actually happened in the lagrant case us was asked to give a guarantee of non-repetition of something similar in the future okay so those are the remedies that uh China can ask the US what about the remedies in the Antarctica case well the remedies in the Antarctica case (45:53) would be restitution now one may ask what what would restitution look for here well if the country has concerned has uh made a statement as has issued a declaration that uh that particular part of Antarctica now belongs to it then restitution would mean withdraw of that particular declaration formally right the court can grant that it should be asked for compensation should also be asked for why not the chances of the Court granting the comp ation are very minimal because there\'s no actual material damage caused by the (46:31) Declaration of um you know sovereignty or a part of the Antarctica but why not ask for it you are entitled to ask for it and then satisfaction say sorry and also uh issue a um uh give a guarantee of non-repetition why not ask for that as well right so these are the forms of reparation that would apply in the factual situations that we discuss discussed in this case study okay let\'s look at the next one France gave an amount of 5 million EUR to Cameroon for construction of a road which Cameroon was required to pay back (47:10) by 15 January 2015 since Cameroon failed to do so within the stipulated time frame France sent several reminders to Cameroon asking for the repayment of the total Capital amount please pay attention to the words in all cases Cameroon denied any responsibility to pay the capital amount stating that this was supposed to be a grant and not Al loone in a legal proceeding subsequently brought by France against Cameroon the icj held that the amount was not a grant and that Cameroon had the obligation to repay in its claim France also asked for (47:51) interest on the capital amount and damages for the delay so this is in its claim okay before the icj Cameron argued that France is entitled only to the capital amount it has since it has never raised the claim of Interest or damages in its several correspondences you have to find a legal argument in support of Cameroon under the articles on state responsibility okay so France gives an amount to Cameroon asks for the repayment of the total cap capital amount um never asks for any interest or damages and Cameroon therefore says now (48:30) that you\'re not entitled to a new claim that you have not made before the answer to this there are different ways of looking at this question one is article 43 notice of Claim by an injured State an injured state which invokes the responsibility of another state shall give notice to its claim to that state so in this case the correspond onces by France to Cameroon the injured state may specify in particular the conduct that the responsible State should take in order to seize the wrongful act if it is continuing and number two what form (49:10) reparation should take in accordance with the provisions of part two okay now you\'ll notice the language here the first part says um uh an injured state which invokes the responsibility of another state shall give notice of its claim to the state so this is mandatory whereas tic paragraph 2 says the injured state may specify in particular okay so it is not necessarily a legally binding obligation as such because the provision is basically discretionary in a way it indicates what an injured state may specify in particular however if a state (49:50) if an injured state does not specify any of these uh elements in its uh notice of claim to the other state then the court May presume that you did not actually want to claim this in the first place okay and that follows from article 45 which is on vaver and acquis loss of the right to invoke responsibility the responsibility of a state may not be invoked if the injured state has validly waved the claim which may not be necessarily accurate in this case right because France did not write to Cameroon that I am waving the claim never did so but (50:31) paragraph B the injured state is to be considered as having by reason of its conduct validly acquis in the lapse of the claim so the court can see that well in all these notices of your claim France never actually claimed for interest or damages it only claimed for the return of the capital amount and by reason of this conduct we may consider that France has aced validly in the lapse of that claim so this is a very strong argument for Cameron now lastly Nepal undertook constitutional reforms in 2015 whereby certain minority communities of Indian (51:08) Heritage were denied adequate representation in the new governmental structure this led to several protests which were promptly quelled by the Nepali police and military they were making them entirely ineffective this eventually led to a refugee Exodus to India of the minority Community India has an agreement with Nepal which requires Nepal to purchase oil and electricity only from India under a predetermined rate because of its unique geographical location and the presence of the Himalayas in the north Nepal is (51:37) UN unable to get any access to electricity or oil at any reasonable level from China or other countries in response to the violations of the minorities and the refugee Exodus India unilaterally and without discussion with Nepal suspended oil all supply of oil and electricity to it leaving all Nepali citizens in severe hardship India also blocked the only Road access for essential supplies from India into Nepal further India also decided to impose economic sanctions on Nepal including freezing of all assets of Nepali (52:12) business persons in India Nepal challenged the measures by India before the icj India argued that Nepal had violated its obligations under international human rights law and therefore India had the right to take counter measures which it shall continue unabated until Nepal changes its Constitution to ensure adequate representation of the minorities find Arguments for Nepal now parts of these are actual facts uh Nepal did undertake constitutional reforms uh a few years ago um and uh change the delimitations of internal uh provinces in order to (52:52) ensure that uh the uh those of Indian Heritage um uh would become minorities in uh in those newly uh deconstructed or delimited um territories provinces and therefore would never actually have the possibility of um gaining numerical majority or standing or or getting elected uh for the uh various governments at the central level or otherwise and this of course angered India quite a lot because um um uh that led to Refugee crisis of course but um beyond that of course it was a something that the Indian government considered (53:28) not acceptable um so uh the India also has an agreement with Nepal for you know the purchase of oil and electricity but some other facts are a bit exaggerated they didn\'t actually happen uh India did block the uh Road access for essential supplies from India into Nepal but some of the other facts that I have given you such as uh cut off electricity cut off uh uh oil supply um you know impose economic sanctions on Nepal in including freezing of all assets of Nepali business persons in India are all exaggerated for the purpose of this (54:01) particular question okay now to understand this question which is extremely relevant also for your discussion forum question this week we need to get into the depth of the concept of counter measures right what is India\'s argument here that Nepal violated one set of obligations that it owes under international human rights law violations of human rights of those of Indian Heritage including uh civil and political rights and therefore India is entitled to suspend some of its obligations under international law that (54:39) it owes to Nepal as counter measures okay so what are counter measures article 22 of the ARA includes countermeasures as a valid justification or excuse that precludes wrongfulness so in principle if India can justify that its measures validly constituted countermeasures then it has an argument to say that it should not be held internationally responsible for the wrongful act so article 22 is titled counter measures in respect of an internationally wrongful act the wrongfulness of an act of a state not in Conformity with an international (55:23) obligation towards another state is precluded if and to the extent that the act constitutes a countermeasure taken against the latter state in accordance with chapter 2 of part three so this much is clear that wrongfulness is precluded if it can be justified as a countermeasure now what are counter measures theoretically counter measures or measures that a state takes in response to an internationally wrongful act by another state in order to procure secession and reparation and which measures would otherwise be contrary to International (56:04) obligations of an injured State visa the responsible state so in other words these are measures that a state may take against another state which state has violated its International obligation and the measures that I undertake are as counter measures and they also are a violation of OB obligations that I otherwise owe to that state okay so you violated obligations to me as counter measures I am entitled to violate my obligations to you okay in brief those are counter measures but of course there are serious (56:40) qualifications to this when it can be legal otherwise the whole world will be haywi right so counter measures are a feature of a decentralized system by which injured States May seek to vindicate their rights and to restore the legal relationship with the respons responsible state which has been ruptured by the internationally wrongful act so essentially counter measures are a means of self-help now international law recognizes that counter measures are legal and Justified under certain circumstances so there are very (57:14) important qualifications when counter measures can be considered legal those are covered in article 49 object and limits of counter measures an injured state may only take counter measures against a state which is responsible for an internationally wrongful act in order to induce that state to comply with its obligations under part two which are about the breaches right or about the consequences so what is the object of countermeasures it is not supposed to be a punishment to the other state it is not penal in (57:53) nature counter measures are essentially aimed to induce that other state to comply with its obligations if you\'re violating obligations then I can take certain measures which may be in violation of my obligations but the objective is not to penalize you the objective is to make sure that you are induced to start complying with your obligations under part two okay counter measures are limited to the non-performance for the time being of international obligations of the State taking the measures towards the (58:28) responsible state so another qualification counter measures are time bound they cannot continue forever they can only be continued till such time that the violating state is continuing with its violation or non-performance number three countermeasures shall as far as possible be taken in such a way as to permit the resumption of performance of the obligations in question so the the me me the uh design of the counter measur should be such that it should not create a fate ACC comply or an impossibility to revert back to the performance or (59:04) resumption of performance of the obligations in question by the violating state so very important limitations right number one the objective of counter measure is only only only to induce the other state to start complying with its Obligations number two it is time bound there is a temporal limitation and number three the nature of the countermeasure must be such that it allows it permits the resumption of the performance of the obligation in question then you have article 50 which are further limitations obligations not (59:37) affected by counter measures counter measures shall not affect the obligation to refrain from the threat or use of force as embodied in the charter of the United Nations number two obligations for the protection of fundamental human rights now this is where the Indian measure can be seriously questioned that it that that it went too far cut of electricity oil from all uh citizens of Nepal froze the assets of Nepali citizens uh doing business or having business Assets in India uh it went a bit too far and therefore uh the counter measures are in (1:00:14) violation of the uh this particular principle which is that counter measures cannot uh affect the obligations for the protection of fundamental human rights in other words if they violate fundamental human rights counter measures will never be considered legal then another limitation article 51 proportionality counter measures must be commensurate with the injury suffered taking into account the gravity of the internationally wrongful Act and the rights in question so there\'s very good argument here to say with the uh with (1:00:46) the added spice uh to the facts that I\'ve given you that Indian measures were entirely disproportionate um uh in this uh context disproportionate to the injury suffered and then uh finally um this is article 52 conditions relating to resort to counter measures before taking counter measures an injured State shall so it\'s mandatory that they do this call upon the responsible state in accordance with article 43 to fulfill its obligations under part two notify the responsible state of any decision to take counter measures and offer to (1:01:24) negotiate with that state neither of this was done in the facts that I have given you if you go back to the facts you will notice that India unilaterally and without any discussion with uh Nepal decided to impose these counter measures okay so uh the measures counter measures were also can also be considered to be a violation with violation of article 52 of the rcba now that concludes our analysis of the case studies I hope uh that you um get a better grasp of oura after conducting this exercise and please feel (1:01:59) free to go back to these exercises and uh you know a couple of times if you need to uh I think getting a good understanding of this will be very helpful for you in the remaining uh course of the program okay so I want to explain to you the discussion question for this week and it\'s a very interesting discussion question thus far as we have discussed on counter measures what we have seen is that a state can decide to use self-help and impose counter measures on another state should those requirements be satisfied but that state that\'s imposing (1:02:38) the counter measures is not required to take any prior authorization from an international body right such as the general assembly or the security Council or the international court of justice it can directly do so in contrast under the WTO system the world World Trade Organization system there\'s something called the dispute settlement understanding which are the which is the agreement on how to resolve trade disputes counter measures are permitted only if they received or have received pre-authorization by the dispute (1:03:09) settlement body of the World Trade Organization this is in article 22.2 of the dispute settlement understanding of the WTO I would highly encourage you to uh read that article uh uh to understand what I\'m talking about here but basically what happens is that if a particular country violates its trade obligations to me then I am not automatically entitled to impose counter measures against that state I must follow a process and only when I\'m authorized by the dispute settlement body of the WTO can I then take counter (1:03:43) measures or impose counter measures against this so it\'s it\'s a form of uh limiting uh trade Wars It\'s a form of ensuring that the entire trading system doesn\'t collapse with the reciprocal trade sanctions by countries on each other without there being some check and balance as I pointed out however counter measures under public international law generally this was about trade law right WTO but generally uh are a means of self-help and they do not require any prior authorization and are hence (1:04:11) subject to abuse so the question I want you to discuss is should there be a similar structure for counter measures in international law generally where any country intending to do so must receive a prior authorization from some multilateral body such as the general assembly the icj or the security Council what are the pros and cons of uh such an approach what might work what might not work why uh Etc so this question is more elaborately uh discussed in the Forum uh again I look forward to your discussions uh to this uh discussion forum bye for (1:04:48) now LLM CCIL 2023 Week Two RSIWA - YouTube https://www.youtube.com/watch?v=9O2-KmLhpSc Transcript: (00:02) hello everyone and welcome to week two of this online course this online module on public international law there are two topics that we will cover in this week the first is responsibility of states for internationally wrongful acts this lecture recorded lecture relates to the topic of responsibility of states the second topic is subjects of international law which we will cover in the live webinar now the topic of responsibility of states for internationally wrongful acts as the name indicates relates to uh (00:45) what happens when a particular State commits an internationally wrongful act meaning that it conducts itself in a way that violates the fundamental principles or its obligations of uh uh that are recognized under International law now this was traditionally part of customary international law in fact there is no treaty which codifies this field of international law so the international law commission which is a very important body under the United Nations system it operates under the uh supervision of the general assembly um decided in um in the (01:25) 1950s or 60s actually that it will embark on a journey to Cod the principles applicable in the context of responsibility of states for internationally wrongful acts now the international law commission comprises 15 experts from around the world who are actually elected by the general assembly of uh the United Nations and the from time to time the international law commission works on codification of international law that is that\'s its mandate meaning that in the absence of a treaty on a particular point and the (02:00) exist existence on of customary international law on that um the international law commission considers that there should not be any doubts related to what the customary international law is and therefore it works on codifying that customary international law into written what are called as articles uh it has undertaken many and important tasks in the past some of which have eventually become converted into treaties an example of that would be the genocide convention the international law commission actually drafted those subsequently the law on (02:36) the sea uh was drafted by the international law commission uh even the Vienna convention on law of treaties which we will study in week three uh which uh uh are basically the rules applicable in the interpretation and application of international treaties was first developed by the international law commission and eventually became adopted as a binding treaty so these articles um on responsibility of states for internationally wrongful acts eventually became adopted by the international law Commission in 2001 (03:12) although as I pointed out it took a good 40 45 years for this process to culminate the short form for ARA which is the acronym for responsibility of states for internationally wrongful acts the short form is also State responsibility simply that this is a cardinal principle of international law and it is necessarily attached to the full legal personality of a state under international law the idea being that if a state has obligations under under international law and if it violates any of those obligations then there must be some (03:51) responsibility of the state right for committing an internationally wrongful act now one thing about the ARA is that it makes no distinction between criminal responsibility of states and civil responsibility of states in fact that distinction does not apply in international law when we talk about State responsibility and I must immediately make a distinction here between State responsibility which doesn\'t matter whether it\'s criminal or civil the consequences are the same as against what in international law we call as (04:28) international criminal responsibility or individual criminal responsibility to be more precise individual criminal responsibility applies to individuals who may have committed violations of international criminal law and international law directly attaches obligations on them and even has a system for enforcement of obligations when they are violated by individuals in the context of international criminal law As We Know know there\'s the international criminal court there\'s also been in the past the international (05:04) criminal Tribunal for former Yugoslavia the international criminal Tribunal for Rwanda so that\'s the distinction between State responsibility which applies to States and individual criminal responsibility which applies to individuals now another important part uh or or element of this uh document of ARA is that it does not deal with primary rules of inter International responsibility but only secondary what does this mean the primary rules of international responsibility will be contained in specific International treaties for (05:43) example what are the rights and obligations under Trade law will be covered under the WTO agreements and the WTO agreements also identify the key mechanisms by which those rights and obligations can be enforced that is the those constitute the primary rules of international responsibility what the international law commission\'s draft articles do is that they lay down or identify or codify only the secondary rules of international responsibility which means that these are the rules of international responsibility generally (06:19) applicable to all dimensions of international law however there are also circumstances when a particular treaty on a particular particular theme contains specific Provisions that may not be as general as the RCA and therefore it is always important to look for the primary rules but in their absence or if they\'re silent then the secondary rules apply that is RCA applies now I want to explain to you the scheme of RCA there are four parts to RCA the first are the rules on attribution meaning can a particular conduct be (07:04) attributed to a state okay is it can we consider this conduct to belong to a state is it the state who has conducted this particular act once you identify a particular State as the one to which the conduct can be attributed then you move to the next set of rules which are the rules to determine whether the conduct amounts to a breach of international law once you\'ve identified that the conduct is attributed to a state that it amounts to a breach then you look for whether that state has any excuse that might allow that might allow it to (07:47) justify the conduct that it has undertaken which otherwise is a breach and there are rules in oura for what constitute valid excuses and then the final part of oura is when a conduct is attributable to a state it has conducted a breach there are no valid excuses then what are the consequences for the internationally wrongful act all right so this is a schematic chart that I prepared for your convenience and this lecture will actually be developed on the basis of case studies and I\'ll give you those instructions in a bit but in um (08:27) preparation for those case studies uh uh I highly encourage you to first read the articles on state responsibility adopted by the international law commission it\'s linked in the course site and although the chapters in um and parts in the ARA are slightly different than what I\'m explaining to you the way I would like you to read is based on the scheme of the ARA and it\'s much better to understand it in the fashion that I\'m explaining so the first set of rules are on attribution and these this these are (09:02) contained in chapter 1 and chapter 2 of part one of the ARA the second set of rules are related to breaches as I pointed out previously and these are contained in chapter 3 and chapter 4 of part one then you have rules on excuses and these are also in chapter 5 of part one and just to give you a head start the types of excuses that ARA considers as valid are consent that there was no consent given by the state that it was taking the measure in self-defense it was taking the measure in counter as counter measures this is an important concept (09:47) for our session today and also for your discussion forum so we\'ll talk about this in more detail later Force Major which basically is an overwhelming situation of uh n nature such as a tsunami or an earthquake that makes it materially impossible for a state to fulfill its obligations international law like domestic law permits that to be considered an excuse distress is another valid excuse necessity that it was necessary there was no other alternative for the state concerned but to take those measures there are certain um uh (10:24) exceptional circumstances which may justify the use of necessity as an excuse and finally compliance with peremptory Norms of international law peremptory Norms of international law are a concept which we will study in week three in much more detail so I won\'t get into a lot of um uh discussion on this issue in this particular week however just as a head start peremptory norms and remember not preemptory Norms peremptory Norms are also called as use cun Norms use Co Norms or perent Norms of international law are those from which no derogation (11:08) is permitted under any circumstance whatsoever so no action can justify a violation from a peremptory Norm of international law or to put it reverse these peremptory Norms are such where every state is expected to comply with them under any circumstance whatsoever so in terms of the hierarchy of international legal Norms yusan Norms sit at the very top and no circumstance allows a state a justification for violation of those peremptory Norms there are few list of norms um uh which are which can be called as yoans so (11:52) these include for example uh prohibition of genocide uh war crimes crimes against humanity uh prohibition of torture um or for that matter even piracy is considered to be a parmt nothing can justify uh a violation from the norm of prohibition of uh piracy and there are some others okay so if a state conducts itself in a way that requires it to do so because it is complying with a peremptory Norm that can be considered a valid excuse now in terms of consequences there are actually three parts in the ARA which I\'d like you to consider there (12:31) are in part two which is the content of the international responsibility of a state we\'ll look at some of those uh in the lecture today uh the second is part three implementation of the international responsibility of a state which includes the provisions on counter measures which are very important and then part four are the general Provisions so as you read the ARA in preparation for the activity we will be conducting henceforth I\'d like you to bear in mind these four parts or uh sections of the ARA and please do make an attempt to (13:08) read it accordingly now as I pointed out we are going to develop this particular session based on case studies so first of all please go through the articles on responsibility of states for internationally wrongful acts area before you proceed any further this part is mandatory so please do not continue with this presentation until you have gone through the articles on responsibility of States because you will not I promise you you will be wasting your time and you will not be understanding most of what is important in this lecture until you have (13:48) actually gone through the articles on responsibility of states in detail with a lot of careful appreciation of the Articles now the there is a handout with these case studies that we\'ll be discussing that is uploaded on the course site ideally you may go through them and try and answer those case studies on your own before you go ahead with this presentation and this is what I would recommend but it\'s not mandatory the mandatory part is going through the rcar alternatively if you\'re short on time for example you may proceed with (14:25) this presentation without attempting to resolve the handout on your own although this is not recommended I can assure you that you will learn a lot better if you try to solve those case studies on your own before proceeding with the answer key which is the rest of the presentation okay with that let\'s then come to the first case study Arcadia and romia are parties to the International Convention on the law of the Sea by virtue of that ships from romia have the right of innocent passage to travel through ter teritorial Waters of (15:00) Arcadia Arcadia along with a few other countries in the region imposed unilateral sanctions on romia including restrictions on using their airspace and territorial waters on 17 December 2018 three romian passengers and commercial ships passing through territorial Waters of Arcadia were blown up by explosion of Mines Arcadia claims that it did not lay down the mines and agrees that doing so is illegal in international law a fact-f finding mission of the UN Security Council has concluded conclusively that Arcadia itself did not lay down the (15:40) mines it concluded that another neighboring country Cora which has spearheaded the sanctions on romia along with Arcadia had laid down the mines in waters of Arcadia now the question is can Aradia be attributed with an internationally wrongful act under the circumstances so note that the facts here are very peculiar the territorial Waters in which the mines were laid down and exploded and uh basically uh you know destroyed the passenger and commercial ships of romia when not laid down by Arcadia in its own territorial Waters in (16:20) fact it was laid down by a neighboring country Cora which has also joined hands with Arcadia to sanction rudoman and so the question is can Arcadia be attributed with an internationally wrongful act under the circumstances now as you try and apply the provisions of the uh ARA it is important that you pay attention to what exactly is the legal issue in mind in question and here the question really is about attribution so the provisions you are going to look at are those relating to attribution the answer to this (17:02) question is based on Article 2 there is an internationally wrongful Act of a state when conduct consisting of an action or Omission is attributable to the state under international law and constitutes a breach of an international obligation now we have facts here where aredia agrees that there is a breach of an international law obligation because is it would be illegal to do so to lay down mines the question is can the ACT nevertheless be attributed to our to Arcadia although the fact is that it did not lay down the mines and the key Point (17:42) here is that when we evaluate uh the conduct of a state it is not only about the action by the state it is also about an Omission by the state now in international law there is a presumption that every state state is responsible for any action anything that happens from its own territory whether it\'s the territorial land territorial Waters or territorial airspace that country by virtue of sovereignty is responsible internationally for what happens from its territory this does not require cor sorry romia um no Arcadia to actually (18:23) lay down the minds itself if it can be proven that Arcadia omitted to make sure that its territorial Waters were not being used against romia with mines then also Arcadia can be held can be attributed with the conduct now this actually flows from the Corfu Channel case of 1949 which were similar facts here what happened was that British ships were blown up as they were passing through the Albanian territorial Waters Albania uh Albania said we didn\'t do it we didn\'t know about it the icj held that Albania was (19:04) responsible because it knew or must have known of the presence of mines in its territorial Waters and did nothing to warn third states of their presence so international law presumes as I pointed out that anything that happens from your territory or territorial Waters either you know about it or you must have known about it there is a possibility of course for Albania in this case and in a hypothetical case study romia Arcadia to claim that despite the best of its efforts despite all the due diligence it it had to command within (19:45) its within it had within its command it did everything possible to make sure that its territorial Waters were not used for mines and despite that somehow Cora clandestinely planted mines within its territorial Waters and there therefore it should not be attributed with the conduct that is a possibility however international law does not presume the absence of such an um attribution right in other words international law presumes that you know or must have known it is a Monumental task in international law for a state to (20:17) say that although I have sovereignty over my territory although I have full control over my territory I actually didn\'t know what\'s happening from my territory now this is a very important Concept in in the modern world particularly in the context of crossb terrorism as we know there is crossb terrorism in many contexts in many parts of the world a state which allows or which has its territory being used for crossb terrorism cannot Escape an attribution of the conduct particularly of omission to make sure that its territory is not (20:53) used for such conduct and then Escape any respons responsibility under international law so international law will presume that you know or must have known that your territory is being used simply you can\'t have an excuse generally speaking that you didn\'t know the threshold for proving that you conducted all due diligence and despite all of that somehow clandestinely your territory was being used is a very high threshold and international law does not generally accept such an argument okay then we come to the next (21:26) question two French Nationals traveling as tourists in Costa Rica two Costa Rican police officers after failing to extort money from the tourists took them to the local barracks and shot them with their police guns France argues that kosara is responsible but the latter counters that the two police officers acted outside their competence and countermanded orders from superiors can Co kosara be attributed with State responsibility again pay attention to the words we are talking here about attribution so so you must look at the (21:59) provisions on attribution and the correct answer to this is article 7 excess of Authority or contravention of instructions the conduct of an organ of a state or a or of a person or entity empowered to exercise elements of the governmental Authority shall be considered an act of the State under international law if the organ person or entity acts in that capacity even if it exceeds its Authority or contraen instructions you could of course apply some other Provisions in the RCA here article 8 comes to mind but when you (22:39) make a legal argumentation you go to the one that is most directly applicable and in this case it is article 7 and this flows from the care case of 1903 here the question was between France and Mexico the case concerned the murder of a French national by two Mexican officers who who after failing to extort money took care to the local barracks and shot him the commission which was an arbitration commission established to resolve this dispute between the states held that the two officers even if they are deemed to have acted outside their (23:12) competence and even if their superiors Contraband countermanded and Order have involved the responsibility of the state since they acted under the cover of their status as officers and the means placed at their disposal on account of that status Okay the third one the US Army is engaged in many wars around the world but due to domestic pressure there\'s an increasing reduction in US troops on the ground this has affected directly its ability to conduct raids against the Isis and Syrian governmental forces therefore the US has outsourced several (23:51) of its military activities to a private military corporation called Centipede centipede has been instructed by the US military to do everything necessary to protect us interests please do pay attention to the exact instructions okay the language to do everything necessary to protect us interest this is the instruction by the US military however centipede is also told that it will act on its own without being operationally directed or controlled by the US Army without being operationally directed or controlled by the US Army (24:29) although the instructions are do everything necessary to protect us interests can the US be attributed with State responsibility for any illegality conducted by centipede in Syria and these are actual cases as we know the Wagner group employed by uh uh the Russian Federation uh we have had private military corporations employed by the US blackwat and others as well uh and some other countries do that as well right and this is a big question in fact there\'s a NE there\'s an active uh treaty being negotiated uh at this point on the (25:02) respon on the obligations of private military corporations themselves uh for violations of uh International humanitarian law or criminal law okay so can us be attributed uh the direct provision is conduct directed or controlled by a state article 8 the conduct of a person or group of persons shall be considered an act of a state under international law if the person or group of persons is in fact acting under the on the instructions of or under the direction or control of that state in carrying out the conduct now the facts (25:42) of the case are that the centipede is not acting under the direction or control of the US but it is in fact acting on the instructions of the US in such cases us will be attributed with responsibility if for any illegality that\'s conducted by by the private military corporation that it is outsourced it essential uh function of uh um using of force now in terms of jurist prudence this has been an accepted proposition of international law the icj uh addressed this issue in the Nicaragua versus US case um and it also did so in the DRC versus (26:20) Uganda cases uh you know if you are interested in exploring these cases a bit more you can go to the website of the icj and or you can just Google icj Nicaragua versus us or icj DRC versus Uganda and then um on the document on the web page dedicated to these cases on the right side you will find a link for judgments which are the entire judgments or you can also find a link below that for summary of the judgments which are very succinct um brief overviews of the main decisions in the Judgment concerned similarly the international Tribunal for (26:56) the former Yugoslavia has also addressed these issues in The Tadich case so it\'s established international law then indona has entered into an agreement with Australia to Grant full protection to investment by an Australian company in a food packaging Factory on an Indonesian Island these include guarantees of police and security protection Pur to an earthquake and a resultant tsunami police stations on the island were swept away and destroyed Havoc was caused on the island leading to several deaths survivors were (27:35) struggling to find food and resources which led to massive looting including in the Australian Factory Australia has claimed that Indonesia is in breach of its obligations to provide police and security protection what can Indonesia argue in its response okay so we are on uh excuses really here right and uh so the correct provision to apply is article 23 Force majour the wrongfulness of an act of a state not in Conformity with an international obligation of that state is precluded if the ACT is due to force majure that is the occurrence of an (28:18) irresistible force or of an unforeseen event beyond the control of the state making it materially impossible in the circumstances to perform the obligation so this is an excuse a valid excuse this is what Indonesia can argue that there was a force measure a tsunami took place it was beyond the control of the state making it materially impossible to perform the obligations that that Australia wants us to perform paragraph 1 does not apply if in other words Force measure is not a valid excuse if the situation of force measure (28:53) is due either alone or in combination with other factors to the conduct of the state invoking it or the state has assumed the risk of that situation occurring so on point B it\'s clear if if a state is silly enough to accept in an International Investment agreement that it assumes the risk of uh performing the obligation even in case of force majour then too bad for the state they shouldn\'t have entered into a bad contract in the first place then you can\'t bring in Force majure if you have actively given up that as an excuse in (29:25) your agreement on point8 it is generally very difficult to imagine circumstances where a situation of force measure is caused because of the conduct of a state but it\'s not too fanciful either one can imagine for example a nuclear weapons test committed under under the sea under sea tests as we call it uh and that leads to a tsunami then possibly uh the state concerned uh cannot have the excuse of Force Major if if that\'s the state that has conducted such uh actions right so these are some uh examples of of (30:05) that then us and China are parties to the Vienna convention on Consular relations which requires all states parties to ensure the right to Consular access to a citizen of another state party which it has detained Mr X a citizen of China was detained by the Los Angeles Police Department LAPD on allegations of homicide of a disabled child and was denied the right to cular access despite having asked for it several times subsequently Mr X was handed with a death sentence by a criminal court in Los Angeles California (30:41) us and following that was executed China has complained to the icj that us has violated its obligations under the Vienna convention on Consular relations us has argued that it follows a federal constitutional structure and since the execution was ordered by a Judicial Authority in the state of California according to its own state laws the US central government could not have prevented or controlled the judicial process in California and is therefore not internationally responsible if you were the legal adviser of China what arguments can you (31:17) make against the US government stand and what remedies would you suggest that China should seek from the icj now there are two parts to this question one is um what are the legal arguments China can make against the US stand that we follow a federal structure and the executive cannot have control over the Judiciary Etc and the second part of the question uh is what remedies would you suggest the China should seek from the icj now we will discuss the first part of this question the second part is something that we will discuss together (31:52) with the next question which is also on remedies so we\'ll come back to remedies is collectively there on the first question the answer is uh Article 4 and article 32 the conduct of organs of a state the conduct of any state organ shall be considered an act of that State under international law whether the organ exercises legislative executive judicial or any other functions whatever position it holds in the organization of the state and whatever its character as an organization of the central government or of a territorial unit of the state in (32:31) other words international law doesn\'t care about what your internal Arrangements within the state are as long as you are a state and you have statehood then conduct of any of your organs will be considered an or a conduct of your state and you will be internationally responsible if that conduct violates International legal obligations then you have article 32 which is more direct in fact irrelevance of internal law the responsible state may not rely on the provisions of its internal law as justification for (33:03) failure to comply with its obligations under this part so next question Article 4 of the Antarctic treaty states that no new claim or enlargement of an existing claim to territorial sovereignty in Antarctica shall be asserted while the present treaty is in force Argentina has Sten a new claim of sovereignty over an unclaimed area of Antarctica Australia wishes to sue Argentina for violations of the Antarctic treaty Argentina argues that Australia cannot claim to be an injured State because the claimed area is (33:45) nowhere close to the Australian Mainland and Australia has not suffered any injury so Argentina\'s argument is Australia doesn\'t have any right to invoke my responsibility it\'s not an injured state right it has not suffered any injury at all so the first question for you is can Australia claim to be an injured State and since you have read the um ARA you know that there are Provisions which tell us when can a country be considered as an injured State and the second question is if yes then what remedies can Australia claim (34:21) so let\'s look at the first question and then together on question B we will come back to this one and the US China exam Le I gave again previously so the direct answer to this question is article 42 invocation of responsibility by an injured State a state is entitled as an injured state to invoke the responsibility of another state if the obligation breached is ow to that state individually so that\'s not the case here or a group of states including that state or the International Community as a whole and (35:01) the breach of the obligation specifically affects that state this is not true in the case of the facts I gave you or 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 this is where article 42 can be invoked by Australia right because this is a situation where the treaty is a fine balance that has been sought to be achieved between the members of the Antarctica area there are not many there (35:33) are few and the whole idea is that no one should claim raise a stake or claim a stake in any part of the Antarctica uh during the operation of the treaty because that would then radically change the position of all other states it would strike at the very balance that was sought to be achieved uh through that uh through the through that treaty so definitely here um the uh the country can cons consider itself to be an injured State uh because the obligation is owed to a group of States including that state and the breach of the (36:05) obligation is such that uh it can radically change the position of all other states to which the obligation is owed there\'s also a related uh provision article 48 which should be a secondary argument in this uh situation and that is about invocation of responsibility by a state that is not an injured State okay so please do take a look at that that but of course the strongest argument should be that it is an injured State and then assuming that it is not an injured State then article 48 also applies so please do take a look at (36:37) article 48 all right now let\'s come back to the question of Remedies both in the context of us China and in the context of um uh Antarctica uh Australia and Argentina um before we get to the answers I do want to discuss uh the ARA Provisions in terms of uh remedies that that a State uh is entitled to or the um consequences that a state must bear in case it violates any International legal obligation or conducts an internationally wrongful act so there are uh three Provisions which are very important here article 29 it identifies (37:21) the continued duty of performance okay so which basically means that throughout the duration of the violation by a state there always exists a continued duty of performance and the more the country continues violating that will have consequences on the remedies for instance the the compensation that the country concerned might have to pay so this is a very valid consideration that a violation continues to be a violation for the entire duration of the violation because there is a continued duty of performance (37:56) of the obligation by the state that is violating that obligation then article 30 is the obligation of secession meaning that this is one way of uh addressing a violation that you seize to continue with that violation the third which is often used by courts is guarantees of non-repetition so many times what happens is that a particular violation has taken place for example I gave you the uh illustration of of uh China us right uh this is a very valid uh remedy that can be sought by by China and the courts May Grant this that the life has (38:36) lost life has been lost amongst the other reparations or remedies that the court May Grant one of them could be demanding that the US issue a guarantee of non-repetition of such a situation in the future uh this has been often employed by courts including in the interamerican system particularly with in the context of violations of Rights of indigenous peoples the court has often required states to imp issue a guarantee of non repetition and then you have reparations for injuries which is the meat of what we are discussing here (39:12) that is an article 31 of \[Music\] ARA now article 31 talks about reparations for injuries but it\'s in article 34 that you find the different form forms of reparation that can be granted to a victim state so article 34 is titled forms of reparation 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 chart of this chapter Okay so um um restitution is a form of (40:03) reparation which basically relates to the idea of returning the situation back to the status quo anti before a violation has taken place whatever was the situation uh um a state that has violated its obligations must must revert back to that same situation of um as existed before the violation took place compensation is easy to understand it is uh basically uh monetary compensation or compensation in kind uh sometimes compensation in kind is also possible uh for example if lands of indigenous peoples have historically been taken (40:42) away um cities have come up towns have come up then the interamerican court says that they are entitled to compensation uh through the mechanism of alternative land of the same quality okay so compensation can be monetary but it can also be in kind and then you have satisfaction satisfaction is basically a form of reparation which is about acknowledging the guilt by a state that\'s violated the uh obligation and then simple things like apologizing to the victim State that\'s a form of satisfaction or it could be in some (41:17) cases the courts direct a particular state to erect a monument or a statue in memory of a particular uh victim individual if it\'s a human rights uh or criminal law issue uh sometimes courts have even directed uh modification of curriculum to acknowledge this particular part of the history so that the citizens or children are aware of the violations that their country has undertaken uh uh through the uh you know uh uh through the incorporation in the history books of of such things sometimes Memorial days are directed uh (41:52) by courts that\'s a form of satisfaction uh in some cases even museums have been uh have been uh uh asked to be constructed in recognition of these uh violations now these three forms of reparation uh in principle ought to be sequential okay so you look for whether restitution is possible then you look for compensation if restitution not possible then you look for satisfaction if compensation not possible but of course there are times when uh these will need to be done in com combination because restitution may not be an (42:26) adequate form of uh reparation you may also need compensation and sometimes restitution and compensation is not possible so you may also need uh satisfaction but there are also circumstances where restitution and satisfaction may be adequate and the court may feel that compensation is not necessary right so uh there are these circumstances where although in principle these are supposed to be sequential but they operate singly or in combination and sometimes courts will have to be pragmatic depending on the situation and and see what applies best (42:58) to that particular context okay now in terms of the third form of reparation it is interest now interest is not necessarily A reparation for the damage cost whenever a court grants a compensation and the state that is supposed to pay the compensation says that I can\'t do it immediately or within one year as you have directed I need more time for that then the court will also direct interest to be paid on the compensation that it has already directed to be paid by that state okay so this becomes part of the entire (43:31) package of uh the remedies that a particular state is entitled to should another state conduct an internationally wrongful act now in case of China versus US restitution is obviously not possible right because a life is lost so you can\'t resurrect a life um um and so restitution is not an option what about compensation definitely yes compens ation to whom in international law a state that is China can claim and should claim compensation for two different stakeholders one for itself as a state because the US has violated an (44:10) obligation to China under the Vienna convention on Consular relations and second China should also claim compensation on behalf of the family of the victims that the US needs to pay okay these are actually cases uh before the icj uh the Aina case which was US versus Mexico us sentenced a Mexican citizen there was another case US versus Germany uh no Germany versus US L Grand case again a situation where uh the US executed a German citizen without any information to Germany or to this uh person concerned and Germany actually (44:45) came to know about this only through media reports subsequent to the execution went to the icj one and uh of course the idea is to claim compensation not only for the state but also on behalf of the victims of the family and then third is uh satisfaction so in this case uh another thing China can ask the uh icj to do is to guarantee satisfaction or make uh have the US say sorry uh possibly even uh ask for a monument for the person why not you always as as a part of legal practice it is a as a rule uh you ask for the moon (45:24) you ask for everything that\'s possible that you may be entitled to and let the court then decide what it wants to give you but you should ask for everything possible uh and also in this context there will be the guarantee of non-repetition which actually happened in the lagrant case us was asked to give a guarantee of non-repetition of something similar in the future okay so those are the remedies that uh China can ask the US what about the remedies in the Antarctica case well the remedies in the Antarctica case (45:53) would be restitution now one may ask what what would restitution look for here well if the country has concerned has uh made a statement as has issued a declaration that uh that particular part of Antarctica now belongs to it then restitution would mean withdraw of that particular declaration formally right the court can grant that it should be asked for compensation should also be asked for why not the chances of the Court granting the comp ation are very minimal because there\'s no actual material damage caused by the (46:31) Declaration of um you know sovereignty or a part of the Antarctica but why not ask for it you are entitled to ask for it and then satisfaction say sorry and also uh issue a um uh give a guarantee of non-repetition why not ask for that as well right so these are the forms of reparation that would apply in the factual situations that we discuss discussed in this case study okay let\'s look at the next one France gave an amount of 5 million EUR to Cameroon for construction of a road which Cameroon was required to pay back (47:10) by 15 January 2015 since Cameroon failed to do so within the stipulated time frame France sent several reminders to Cameroon asking for the repayment of the total Capital amount please pay attention to the words in all cases Cameroon denied any responsibility to pay the capital amount stating that this was supposed to be a grant and not Al loone in a legal proceeding subsequently brought by France against Cameroon the icj held that the amount was not a grant and that Cameroon had the obligation to repay in its claim France also asked for (47:51) interest on the capital amount and damages for the delay so this is in its claim okay before the icj Cameron argued that France is entitled only to the capital amount it has since it has never raised the claim of Interest or damages in its several correspondences you have to find a legal argument in support of Cameroon under the articles on state responsibility okay so France gives an amount to Cameroon asks for the repayment of the total cap capital amount um never asks for any interest or damages and Cameroon therefore says now (48:30) that you\'re not entitled to a new claim that you have not made before the answer to this there are different ways of looking at this question one is article 43 notice of Claim by an injured State an injured state which invokes the responsibility of another state shall give notice to its claim to that state so in this case the correspond onces by France to Cameroon the injured state may specif