By Mercedes Bouter
Visit http://pilstudy.blogspot.nl/
Thus, the question is no longer if reservations to a treaty are permissible, for allowing a state
to attach a reservation is a means of imposing obligations on this state, being or expressing its
will to become a party to the treaty. The question is hence, to what extent reservations to
treaties are permissible.
Whether it concerns the decision-making process or judging an international (internationally
wrong acts, for example) case, there will, by nature, always be ambiguity. There are no "hard
and fast rules" in global politics.
Before I am going to discuss what conditions make reservations to treaties permissible, let's
explore the subject, "law of treaties", according to the Vienna Convention on Law of Treaties
(abbreviation: VCLT).
Note that the VCLT just entered into force on 27 January 1980; therefore, it should be clear
that the VCLT is not applicable to cases prior to 1980- if you would like to know which
treaties and conventions could be applied to previous cases, look up the International Court of
Justice database.
The scope of the Vienna Convention is presented in article 1, which states that
"The VCLT applies to treaties between states". Art. 2, para 1 (a) defines "treaties" as:
In two cases, the SS Lotus case (1927) and the SS Wimbledon case (1923), the Permanent
Court of International Justice (PCIJ) has given rise to the idea that two principles underlie the
law of treaties. One is that states are sovereign, therefore no valid treaty can do without the
free consent of states entering into the treaty, i.o. words consensualism is an essential feature;
the other principle is that commiting to a treaty imposes obligations on states: the efficacy of a
treaty requires that states perform these treaties in good faith. However, the old Roman
brocard "pacta sunt servanda" originally applies to civil law.
2.2. Reservations
According to article 2 (1)(d) a "reservation" means a unilateral statement, however phrased or
named, made by a State, when signing, ratifying, accepting, approving or acceding to a treaty,
whereby it purports to exclude or modify the legal effect of certain provisions of the treaty in
their application to that State".
One main rule conducts the formulation of reservations. As article 19 makes clear, a State
may formulate a reservation, unless:
a. the formulation is prohibited by the treaty itself;
b. the treaty provides that only specified reservations, not including the reservation in
question, may be made;
c. in cases not falling under sub-paragraphs a and b, the reservation is incompatible with the
object and purpose of the treaty.
Highly inspired by the Advisory Opinion of 28 May 1951, the last sub-paragraph has led to
an enduring discussion on the "compatibility" with the "object and purpose of a treaty", for
there is no general rule to define these concepts of a treaty.
2. according to the 2nd paragraph, a reservation requires acceptance by all parties, when it
appears from the limited number of negotiating States and the object and purpose of a treaty,
that the application of the treaty in its entirety between all the parties is an essential condition
of the consent of each one to be bound by the treaty;
a. Another contracting State can expressly accept the reservation, which constitutes the
reserving State a party to the treaty in relation to that other State when the treaty is in force for
those States.
b. An objection made by another contracting States, does not preclude the entry into force of
the treaty as between the objecting and reserving States, unless a contrary intention is
definitely expressed by the objecting State.
Thus, despite the objection, the reservation will enter into force between the reserving and
objecting States, as long as the objecting State does not expressly discard treaty relations with
the reserving State.
c. An act expressing a State's consent to be bound by the treaty and containing a reservation is
effective as soon as at least one other contracting State has accepted the reservation.
1. Whether the Accepting State expressly or silently accepts the reservation (implicit
acceptance = art. 20(5) VCLT), art. 20(4)(a) and art. 21(1) VCLT do apply. The legal effect is
that a treaty has been established between the Reserving and Accepting State and that either of
the parties to the treaty can invoke the reservation;
2. If a contracting State does object to a reservation, but does not wish to discard treaty
relations with the Reserving State (art. 20(4)(b)), the provision to which the reservation
relates, does not apply between parties to the extent of the reservation, as art. 21(3) VCLT
prescribes the legal effect of the objection;
3. The fourth scenario is that a State objects to a reservation and discards treaty relations with
the Reserving State, art. 20(4)(b). The treaty does not enter into force between the Reserving
and Objecting State, the latter ultimately not being a "contracting" party to the treaty.
I. Can the reserving State be regarded as being a party to the Convention, while still
maintaining its reservation if the reservation is objected by one or more parties to the
Convention, but not by others?
II. If the answer to question I is the affirmative, what is the effect of the reservation as
between the reserving State and:
a. the parties which object to the reservations?
b. those which accept it?
III. What would be the legal effects as regards the answer to question I if an objection to a
reservation is made:
a. by a signatory which has not yet ratified?
b. by a State entitled to sign or accede but which has not yet done so?
3.1. Answers
On Question I:
A State which has made and maintained a reservation which has been objected to by one or
more of the parties to the Convention, but not by others, can be regarded as being a party to
the Convention, if the reservation is compatible with the object and purpose of the
Convention; otherwise, that State cannot be regarded as being a party to the Convention.
On Question II:
a. If a party to the Convention objects to a reservation which it considers to be incompatible
with the object and purpose of the Convention, it can in fact consider that the reserving State
is not a party to the Convention;
b. If, on the other hand, a party accepts the reservation as being compatible with the object
and purpose of the Convention, it can in fact consider that the reserving State is a party to the
Convention.
On Question III:
a. An objection to a reservation made by a signatory State which has not yet ratified the
Convention can have the legal effect indicated in the reply to Question I, only upon
ratification. Until that moment, it merely serves as a notice to the other State of the eventual
attitude of the signatory State;
b. An objection to a reservation made by a State which is entitled to sign or accede but which
has not yet done so, is without legal effect.
3.2. Conclusion
The Advisory Opinion seems somewhat dissatisfying. It is pretty much up to contracting
As page 24 reads:
" The object and purpose of the Genocide Convention imply that it was the intention of the
General Assembly and of States which adopted it, that as many States as possible should
participate. The complete exclusion from the Convention of one or more States would not
only restrict the scope of its application, but would detract from the authority of the moral and
humanitarian principles which are its basis".
4.1. Armed Activities on the Territory of the DR of the Congo, Judgment, Jurisdiction of
the Court and Admissibility of the Application, 3 February 2006
Abstract. The Republic of Rwanda requests the Court to declare that (1): the Court lacks
jurisdiction over the claims brought against the Republic of Rwanda by the DR of the Congo.
The Court is required to address only the questions of whether it is competent to hear the
dispute [...] (para 13, 14). I am going to highlight the considerations of the utmost importance
(regarding a reservation to art. IX of the Genocide Convention, sidelining the jurisdiction of
the Court).
4.1.1. DR of the Congo vs. Rwanda: arguments on the jurisdiction of the Court
In the DRC's view, the finding of an "absence of a manifest lack of jurisdiction" could be
interpreted as an acknowledgement by the Court that is has jurisdiction (para 23).
Rwanda argued in its Memorial that the jurisdiction of the Court under the Genocide
Convention was excluded by its reservation to the entirity of Article IX (para 29).
The Court notes that is has already found that reservations are not prohibited under the
Genocide Convention [refers to the 1951 Advisory Opinion on Reservations]. This legal
situation is not affected by the fact that the Statute of the International Criminal Court, in its
Article 120, does not permit reservations to that Statute, including provisions relating to the
jurisdiction of the International Criminal Court on the crime of genocide. Thus, in the view of
the Court, a reservation under the Genocide Convention would be permissible to the extent
As a matter to the law of treaties, when Rwanda acceded to the Genocide Convention and
made the reservation in question, the DRC made no objection to it (para 68).
The Court concludes that, having regard to Rwanda's reservations to Article IX of the
Genocide Convention, this Article cannot constitute the basis for the jurisdiction of the Court
in the present case (para 70).
With regards to paragraph 67 and 72, the judges consider that "..much will depend upon the
particular convention concerned and the particular reservation. In some treaties, not all
reservations to specific substantive clauses will necessarily be contrary to the object and
purpose of the treaty. Some such reservations to particular substantive clauses may be of this
character (ICCPR is mentioned). Conversely, a reservation to a specific "procedural"
provision in a certain convention, could be contrary to the treaty's object and purpose. For
example, the treaty bodies set up under certain United Nations conventions may well be
central to the whole efficacy of those instruments ("at the heart of the convenant system")"
(para 21).
It is, thus, not self-evident that a reservation to Article IX could not be regarded as
incompatible with the object and purpose of the Convention (para 29).
Note that articles 60-62 VCLT provide three options to justify unilateral termination of a
treaty:
1. inadimplenti non est adimplendum;
2. force majeure;
3. rebus sic stantibus;
The first one being the actual "material breach" by the other contracting party.
These grounds are, in no particular order: a state of necessity, material breach of the treaty by
Czechoslovakia, impossibility of performance of the treaty, a fundamental change of
circumstances and the development of new norms of international environmental law. Before
I am going to discuss the state of necessity, I will highlight the three material grounds that are
covered by art. 60-62 VCLT.
In the Gabikovo-Nagymaros case, the Court has to decide on whether Hungary's invocation
of material breach by Czechoslovakia is justified:
The material breach must have taken place in order to justly invoke such breach:
Hungary's main argument for invoking a material breach of the Treaty was the construction
and putting into operation of Variant C [by Czechoslovakia]. As the Court has found,
Czechoslovakia violated the Treaty only when it diverted the waters [...]. Czechoslovakia did
not act unlawfully in constructing the works that would lead to the putting into operation of
Variant C.
In the Court's view, the notification of termination by Hungary was premature. No breach of
the Treaty had yet taken place and Hungary was, therefore, not entitled to invoke such breach
as a ground for termination (para 108).
Czechoslovakia has breached its treaty obligations, but only when putting Variant C into
operation (para 78 and 82). The preparations on the territory of Czechoslovakia had not yet
led to a material breach, therefore, Hungary's invocation of a material breach by Czech. was
premature. Thus, the Court rejects the invocation of material breach/ inadimplenti by
Hungary.
You'll have noticed the essential grounds for invoking a fundamental change of
In G-N, the Court recalls the Fisheries Jurisdiction case on Article 62 of the VCLT. As
Hungary argued, the events which would have constituted a fundamental change, were
specified as profound changes of a political nature, the Project's diminishing economic
viability, the progress of environmental knowledge and new norms of environmental law.
In the Court's view, the prevalent political conditions were thus not so closely linked to
the object and purpose of the Treaty, that they constituted an essential basis for the consent of
parties and, in changing, radically altered the extent of obligations still to be performed. The
profitablity of the Project was not bound to such an extent that the obligations of the parties
would have radically transformed as a result. The development of environmental knowlegde
and law cannot be said to have been completely unforeseen. The changed circumstances
advanced by Hungary are not of such a nature, that their effect would radically transform the
extent of the obligations to accompish Project G-N. Article 62 of the VCLT is a clear
indication that the plea can only apply in exceptional cases (para 104).
3. State of necessity (art. 33 (now: 25) of the Draft Articles on State Responsibility)
Not under the scope of the VCLT, but under the scope of the International Responsibility of
States, the Court will consider the question of whether there was a state of necessity which
would have permitted Hungary to suspend and abandon works that it was commited to
perform in accordance with the Treaty.
In the G-N case, the Court considers, first of all, that the state of necessity is a ground,
recognized by customary internationa law for precluding the wrongfulness of an act not in
conformity with an international obligation. Such ground can only be accepted on an
exceptional basis. The state of necessity can only be invoked under certain strictly defined
conditions which must be cumulatively satisfied. The State concerned is not the sole judge of
whether those conditions have been met (para 51-52).
The Commission indicated that one should not, in [..] context, reduce an "essential
interest" to a matter only of the "existence" of the State and that the whole case has to be
judged in the light of the particular case (para 53) (i.o. words: the existence has to be
objective) .
However serious the uncertainties might have been, they could not, alone, establish the
objective existence of a "peril" in the sense of a component element of a state of necessity.
The mere apprehension of a possible peril could not suffice. The extremely grave and
imminent peril must have been a threat to the interest at the actual time (para 54).
Considering the situation at Nagymaros (Hungary), the Court notes that the dangers were
mostly of a long-term nature and, above all, that they remained uncertain. The peril invoked
by Hungary had already materialized to a large extent for a number of years, so that it could
not, in 1989, represent a peril arising entirely out of the G-N Project. Even if the construction
The conclusion is that Hungary would not have been permitted to rely upon the state of
necessity in order to justify its failure to comply with its treaty obligations, as it had helped,
by act or omission, to bring it about (para 57).
Crawford provides us with an accurate description of the rationale behind state responsibility:
"State responsibility results from the general legal personality of States under international
law and the fact that States are principal bearers of international obligations".
Two of the mentioned underlying concepts or basic principles of state responsibility are that
states can be held responsible for acts that are attributable to them and that states can be held
responsible for internationally wrongful acts.
2.2. Military and paramilitary activities in and against Nicaragua, Judgment of 27 June
1986
The Court provides a very strict criterion to decide whether the US could be held responsible
for military and paramilitary operations in the course of which the alleged violations were
commited. For this conduct to give rise to legal responsibility, it would in principle have to be
proved that that State had effective control (para 115).
In the view of the Court, while the arming and training of the contras can certainly be said to
involve the threat or use of force, this is not necessarily so in respect of all the assistance
given by the US. The mere supply of funds does not in itself amount to a use of force (para
202).
On the other hand, proliferation refers to the uncoordinated rise of judicial bodies, with the
diversification of international law underlying the establishment of numberous and different
courts, not only for specific topics, but also regional. The "overall control" test, developed by
the ICTY, is not in conformity with the previous "effective control" test, applied by the ICJ.
To address this divergence, it is the proliferation of the ICJ and ICTY that leads to further
fragmentation in the interpretation of public international law.
2.4. Bosnia and Herzegovina vs. Serbia and Montenegro Genocide Judgment of 2007
In response to the Tadi doctrine as was adopted by the ICTY, the Court notes that the "overall
control" test has the major drawback of broadening the scope of State responsibility well
beyong the fundamental principle governing the law of international responsibility (that is, a
State's responsibility can be incurred for acts commited by persons or groups only if,
assuming those acts are internationally wrongful, they are attributable to it under the rule of
customary international law, reflected in Article 8 of the ILC Articles on State Responsibility.
In this regard, the "overall control" test is unsuitable, for it stretches too far, almost to a
breaking point, the connections which must exist between the conduct of a State's organs and
its international responsibility (para 404, 406).
3. Conclusion
In the Diplomatic Staff case of 1980, there was a breach of obligations and certain provisions
were violated. The receiving State had previously agreed upon a special duty to take all
appropriate steps to protect the diplomatic staff, yet failed to do so in the first phase. In the
second phase, it became clear that the approval, given by the authorities, had transformed acts
by individuals into acts of the State. In legal terms, Article 11 of the ILC Articles on State
Responsibility is applicable to this case: the conduct, which was originally not attributable to
the State, shall be considered an act of the State because of the acknowledgement of the
conduct by the State in question.
The Tadi case shoves the 1986 Nicaragua "effective control" test aside and replaces it with
an "overall control" test. According to the Court in the Srebrenica Genocide Judgment of
2007, the
"Tadi doctrine" is unsuitable, for it stretches too far the connections between the conduct of a
State's organs and its responsibility. That means, the causality between the act of an indidiual,
As the lives of two jailers in the LaGrand case could not be recovered, the responsible State
was obliged to give a combination of compensation and satisfaction. In the Gabcikovo case,
both parties could be held responsible for the injuries caused and therefore, both States could
claim compensation. In the Chorzw factory case, both restitution and compensation are
expressly mentioned as classic forms of reparation for injuries. One form of reparation doesn't
set the other possible form aside, as the LaGrand case shows.
Thus, assuming that there is an internationally wrongful act, (1) when conduct consisting of
an action or omission (2) is attributable to a State and (3) constitutes a breach of an obligation
of that State, that State is, under any circumstances:
a. always obliged to continue the performance of the duty of the obligation breached;
b. obliged to cessation and non-repetition;
c. obliged to make full reparation, consisting of either restitution, compensation or
satisfaction, or a combination of forms of reparation for injuries.
This clear and concise statement, the "Caroline test", provides the classic requirements for the
invocation of self-defence. Before determining how the Caroline test applies to reactive self-
defence and anticipatory self-defence, I am going to discuss the general prohibition of use of
force under international law.
"Nothing in the present Charter shall impair the inherent right of individual or collective self-
defence if an armed attack occurs against a Member of the United Nations, until the Security
Council has taken measures necessary to maintain peace and security".
Note that "measures taken by Members in the exercise of this right of self-defence shall be
immediately reported to the Security Council".
The other exception to the general prohibition of use of force, is authorization by the UN
Security Council, as Art. 42 UN Charter reads. As the last sentence of Article 51 UN Charter
makes clear, the Security Council may at any time take action, if deemed necessary in order to
maintain or restore international security.
When is Art. 51 of the UN Charter applicable? As the International Court concludes, "the
most grave forms of the use force (those constituting an armed attack) must be distinguished
from other less grave forms", see para 191 of the Nicaragua case.
Assuming that an armed attack (1) has occurred, the requirements of necessity (2) and
proportionality (3) must be met (see also: Nicaragua, para 194; Threat or use of nuclear
weapons, para 41; Oil Platforms, para 74).
However, the jurisdiction of the Court was limited in the Nicaragua and Oil Platforms cases,
for the US had terminated the acceptance of the Court's jurisdiction. It did so by making a
"multilateral treaty reservation"; when judging a dispute concerning multilateral treaties, as is
the UN Charter, the Court could only apply norms of customary international law.
1.3.3. Armed Activities: use of force only justified within strict confines
What could, thus, be said about the difference between the UN Charter and customary
international law regimes on the use of force? One main case where the ICJ could actually
apply the provisions of the UN Charter is the Armed Activities Judgment (Congo vs. Uganda).
The Court has found that:
"The prohibition against the use of force is a cornerstone of the UN Charter. Article 51 of the
UN Charter may justify a use of force in self-defence only within the strict confines there laid
down. It does not allow the use of force by a State to protect perceived security interests
beyond these parameters. Other means are available to a concerned State, including recourse
to the Security Council" (para 148).
The effective control test was developed in the Nicaragua case: "For this conduct to give rise
to legal responsibility of the US, it would have to be proved that the State had effective
control [..]. The Court does not consider that the assistance given by the US [..] are imputable
to that State" (paras 115, 116).
In the Armed Activities (Congo vs. Uganda, 2005) Judgment, the ICJ stated that "it did not
find the acts by a rebel group could be attributable to Uganda, although providing training and
support to a rebel group may violate obligations of customary international law" (para 161,
162). "While Uganda claimed to have acted in self-defence, it did not ever claim that it had
been subjected to an armed attack by the armed forces of the DRC. (paras 146, 147).
A looser test than the "effective control" test was applied by the ICTY in the Tadic case of
1999:
an "overall control" test should suffice (paras 120-122 and 131, 132). This "overall control"
test was rejected by the ICJ in the Genocide case of 2007 (Bosnia and Herzegovina vs. Serbia
and Montenegro), for it stretched too far the connection which must exist between the conduct
of a State's organs and its responsibility (para 406).
Can a state invoke the right of self-defence against non-state actors, assuming that their
conduct cannot be attributable to a state? That is a controversial question, but not a
hypothethical one.
It is rather unsure whether the traditionalist approach in the Nicaragua, Congo and Genocide
still applies, when in practice the right to invoke self-defence against non-state actors is no
longer categorically rejected.
"The US measures taken, cannot be said to correspond to a "necessity" justifying the action
[..]. First, these measures were only taken several months after the major offensive. [..]
Finally, the Court must also observe that the reaction of the US (in the context of what it
regarded as self-defence) was continued long after the period in which any presumed attack
by Nicaragua could reasonably be contemplated" (para 237).
Proportionality. Although the invocation of self-defence had already failed in the Oil
Platforms case of 2003, the Court states in para 77 that:
"Had the Court found that it [the attack] was necessary in response to the Sea Isle Incident as
The Caroline test, formulating the requirements of customary international law, leaves the
possibility that one invokes a state of necessity if an imminent threat has been established, the
necessity of the self-defence is instant and a state has no other means left to it than a use of
force. Both the necessity and proportionality principle imply that states have to confine
themselves to repelling the attack(er)- self-defence cannot be invoked in order to pursue or
impose punishment on the attacker.
4. Collective self-defence
Article 51 of the UN Charter applied to both individual and collective self-defence. A state
may use force in the defence of an attacked state, provided that the attacked state has made a
request to other states to engage in collective self-defence.
As expressed in the Oil Platforms Judgment, "..The US has not claimed to be exercising
collective self-defence on behalf of the neutral States engaged in [...]; this would have
required the existence of a request made to the US by the State which regards itself as the
victim of an armed attack" (para 51).
In the Nicaragua case, it is set out that "The exercise of the right of collective self-defence
presupposes that an armed attack has occurred. It is [also] evident that if the victim State
wishes another State to come to its help in the exercise of the right of collective self-defence,
it will normally make an express request to that effect" (para 232). There is no rule permitting
the exercise of collective self-defence in the absence of a request by the State which regards
itself as the victim of an armed attack (paras 199, 200).
Before considering whether the right to exercise self-defence justifies any measures taken by
a State, let's take at look at the general rule of international law regarding the use of force. The
general prohibition of the use of force is provided by Article 2 para 4 of the UN Charter. Two
exceptions to this prohibition are (1) authorization by the UN Security Council (Article 42
UN Charter) and (2) self-defence (Article 51 of the UN Charter).
As can be learned from the Advisory Opinion on the Threat and Use of Nuclear
Weapons from 8 July 1996, paragraph 41, the submission of exercise of the right of self-
defence to conditions of necessity and proportionality, is a rule of customary international law.
Referring to the Nicaragua case, the ICJ states that "there is a specific rule whereby self-
defence would warrant only measures which are proportional to the armed attack and
necessary to respond to it, a rule well established in customary international law", see also
paragraph 51 and paras 73-77 of the Oil Platforms case. The Oil Platforms case also makes
clear that the principle of necessity is a strict and objective condition that leaves States no
discretion.
Thus, the three requirements to invoke self-defence, (known as the "Caroline test") as can be
derived from the 1842 letter from Webster to Ashburton, are: the other state must have
performed an armed attack (1), self-defence was necessary to respond to it (2) and the self-
defence was proportionate (3) (see also, paras 229-237 Nicaragua). Moreover, Art. 51 of the
UN Charter requires that measures taken shall be reported to the Security Council
immediately.
Different regimes for the UN Charter and customary international law (Caroline test)?
While measures taken in either reactive or anticipatory self-defence would have to comply
with the requirements of necessity and proportionality, Art. 51 of the UN Charter stipulates
that self-defence can only be invoked after the occurrence of an armed attack.
The Caroline test, formulating the requirements of customary international law, leaves
the possibility that one invokes a state of necessity if an imminent threat has been established,
the necessity of the self-defence is instant and a state has no other means left to it than a use
of force. Both the necessity and proportionality principle imply that states have to confine
themselves to repelling the attack(er)- self-defence cannot be invoked in order to pursue or
impose punishment on the attacker.
Note that time is another condition of importance, as in the Nicaragua case, the measures
taken several months after the major offense, could not be said to "correspond to a necessity
justifying the action" (para 237).
Asssuming that any measures taken have not yet failed the necessity test, the next question
is, if the proportionality principle has been met. The Court states in the Oil Platforms case
that "the scale of the whole operation has to be judged in order to assess, whether the response
["self-defence"] was proportionate" (para 77).
A problem arises when an attack was performed by a non-state actor [rebel groups, for
instance]. Is their conduct attributable to a state? A strict, traditionalist approach was applied
in Nicaragua (demanding "effective control", paras 115-116), subsequently in Armed
Activities on the Territory of The Congo (paras 146, 147) and the Genocide case of 2007
(Bosnia and Herzegovina vs. Serbia and Montenegro, para 406).
Provided that a state has delivered arms to a rebel group (Nicaragua) and although
providing training and military support to a rebel group might violate customary international
law (Armed Activities Congo/ Uganda), the conclusion that follows from these cases is that
The underlying principle is that all States are sovereign and equal (as Article 2(1) of the UN
Charter puts it). Thus, the UNCSI solely applies to immunity from foreign jurisdiction: a State
could and should not be prosecuted before a domestic foreign court. Note that State immunity
is derived from State sovereignty, which relates to the rule that incumbent high-ranking State
officials are also immune from the jurisdiction of foreign States. States have legal personality,
therefore they enjoy immunity ratione personae: immunity from jurisdiction and enforcement.
From this follows that incumbent HRSO enjoy full immunity from foreign jurisdiction, a
result of the classic view on sovereign immunity, as discussed under para 1.1.
How does one determine, whether a contract or transaction is an acta iure gestionis?
According to Article 2 of the UNCSI, reference should be made primarily to the nature of the
contract or transaction; however, its purpose should also be taken into account. The focus
shifts from the initial purpose of a transaction, to the nature of a transaction, to prevent States
from using the "veil" of acta iure imperii in order to escape their obligations by invoking full
immunity from foreign jurisdiction.
State immunity does not imply that a State cannot be held responsible for its actions; as was
discussed before, State immunity solely implies that a State could not be prosecuted before a
domestic foreign court. See para 53: "The Court is not called upon to decide whether these
acts were illegal; the question for the Court is whether or not, in proceedings regarding claims
for compensation arising out of those acts, the Italian (domestic) courts were obliged to
accord Germany immunity". A State prosecuting another State, could in its turn be held
responsible for violating the right to invoke immunity from foreign jurisdiction.
1.5.1. Do the breach of ius cogens and territorial torts allow for denial of immunity?
Does customary international law prevent a State from lawfully invoking immunity in respect
of the "Territorial Tort Principle", even is an act on the territory of a forum State was
performed iure imperii? The Court considers it is not called upon in the present proceedings to
resolve the question, whether there is in customary law a "tort exception" to State immunity to
acta iure imperii in general (para 65).
The Court agrees that the result of Art. 31 of the European Convention as a clause, is that
the immunity of a State for the acts of its armed forces, falls out of the Convention and has to
be determined by reference to customary law.The consequence is, however, that the inclusion
of the "Territorial Tort Principle" cannot be treated as support for the argument that a State is
not entitled to immunity for torts, commited by its armed forces (para 68).
Moreover, State practice in the form of judicial decisions, supports the proposition that
State immunity for acta iure imperii continues to extend to civil proceedings for acts
occasioning [..] by the armed forces, even if the acts take place on the territory of the forum
State. That practice is accompanied by opinio iuris, as a number of national courts made clear
that customary law required immunity. The almost complete absence of contrary
jurisprudence is significant (para 77).
1. Ius ad bellum & ius in bello: Hague law and Geneva law
There is a distinction between ius ad bellum and ius in bello, the first regarding the waging of
war, the latter regarding warfare. Armed conflict is governed by the Hague law on one hand,
aiming to curb the conduct of hostilities, and Geneva law, aiming to protect the victims of an
armed conflict.
Both the Hague law and Geneva law are recognized as a fundamental part of customary
international law, as the Court states in para 79, 80 of the Nuclear Weapons Advisory Opinion
(a reference to the 1949 Corfu Channel case is made):
"It is undoubtedly [..] rules of humanitarian law applicable in armed conflict are so
fundamental to the respect of [..] "elementary considerations of humanity", that the Hague and
Geneva Conventions are to be observed by all States, whether or not they have ratified the
conventions that contain them, because they constitute intransgressible principles of
international customary law" (para 79). Furhermore, the Court notes that these principles of
humanitarian law are part of ius cogens (para 83).
From this follows that, regardless of the act of ratification by States, the rules codified in the
Hague and Gevena Conventions apply to armed conflict, because these conventions embody
the rules of customary international law.
Hence, the concept of an "armed conflict" has to be defined. The ICTY Appeals Chamber
does so in the 1995 Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction
in the Tadi case (2 October 1995): "..we find that an armed conflict exists whenever there is
a resort to armed forces between States or protracted armed violence between governmental
authorities and organized armed groups or between such groups within a State. Humanitarian
law extends beyond the cessation of hostilities" (para 70).
As you might have noticed, the threshold for a NIAC is higher than is the case with an IAC.
Humanitarian international law applies at the very moment of any act of force between States-
with respect to international humanitarian law, one could say it is "war at first shot", as
Common Article 2 of the Geneva Convention implicitly makes clear. NIACs, on the other
side, require "protracted or large-scale armed violence" for international humanitarian law to
be applicable.
A combatant cannot be deprived of his right to be combatant, whether he has violated rules of
international law or not, Art. 44(2) AP I. Members of the armed forces of a Party to a conflict,
have the right to participate directly in hostilities, Art. 43(2) AP I. Any combatant as defined
in Art. 43, who falls into the power of an adverse Party, shall enjoy the prisoner-of-war-status,
Art 44(1) AP I. If a combatant fails to distinguish himself from civilians, Art. 44(3) AP I, he
will not enjoy the prisoner-of-war-status, Art. 44(4) AP I; however, he will be given the
equivalent of the protection accorded by Convention III and AP I. In order to garantuee as
much protection as possible to all categories of combatants and non-combatants, main rule
prescribes that anyone who cannot be considered a combantant in line with Art. 43 AP I, will
be considered a civilian, Art. 50 AP I.
Civilians that take part in hostilities, become objects of attack (Art. 51(3) AP I), but they will
not enjoy the status of prisoner-of-war when captured; if article 4 of Geneva Convention III
does not apply, Article 45(3) in conjunction with Article 75 AP I affords the person, who is not
entitled to prisoner-of-war-statues, the right to protection. Otherwise, Geneva Convention IV
may apply.
There is a difference between civilians taking part in organized hostilities and civilians
participating in leve en masse. The latter, spontaneously participating in non-organized
hostilities, do become prisoners-of-war in the event of being captured, Article 4A (6) of
Geneva Convention III.
Indiscriminate attacks are prohibited, Art. 51(4) and (5) AP I. Some conventions are designed
to expressly prohibit the use of certain weaponry, such as the 2010 Convention on Cluster
Munitions.
The Threat and use of nuclear weapons Advisory Opinion of 8 July 1996 discusses both the
principles of distinction and the principle not to cause unnecessary suffering in paras 95-97.
The Court's summary of the principles that constitute "the fabric of humanitarian law" is to be
found in para 78.
Regarding Common Article 3, the ICJ notes in the Nicaragua case that:
"The importance of the principles that the Geneva Conventions and other relevant instruments
purport to codify is [..] demonstrated by Articles 63, 62, 142 and 158 of Geneva Conventions
I, II, III and IV respectively. These provisions allow for state parties to denounce the
conventions unilaterally. However, the denunciation: "Shall in no way impair the obligations
which the parties to the conflict shall remain bound to fulfil by virtue of the principle of the
The last sentence of Art. 51(5)(b) AP I classifies "attacks that are excessive in relation to the
military advantage anticipated" as indiscriminate and therefore prohibited.
To NIACs, customary international law imposes on parties to the conflict an equal obligation
to refrain from causing greater harm than unavoidable to achieve military objectives.
4. NIACs
4.1. Defining NIACs and the application of Common Art. 3
On deciding whether the armed conflict in the Tadi case could be considered an international
armed conflict, the Appeals Chamber in the Judgment of 15 July 1999 stated that "in order to
attribute the acts of military or paramilitary groups to a State, it must be proved that the State
wields overall control [..]" (para 131).
Although its scope is limited, Geneva Convention Common Art. 3 applies to NIACs. In the
Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction of 2 October 1995 in
the Tadi case, the ICTY Appeals Chamber makes clear that a higher threshold has to be
passed for an internal conflict to qualify as a NIAC (para 70).
In the Tadi trial of 7 May 1999, the ICTY Trial Chamber has set out which requirements
have to be met in order to pass the threshold for the application of rules regarding a NIAC:
"The test applied to the existence of an armed conflict for the purpose of the rules contained
in Common Article 3 focuses on two aspects of a conflict: the intensity of the conflict and the
organization of the parties to the conflict" (para 562).
"..organized armed groups which, under responsible command, exercise such control over a
part of its territory as to enable them to carry out sustained and concerted military operations".
The scope of AP II is, thus, limited, as Article 1(2) AP II puts it: "This Protocol shall not apply
to situations of internal disturbances and tensions such as riots, isolated and sporadic acts of
violence."
Recommended reading:
Typology of armed conflicts in international humanitarian law, S. Vit, March 2009;
International Humanitarian Law, H.P. Gasser, March 2011, available at Oxford PIL.
The ICTY in the Krsti (pronunciation: kerr-steech, a name that oddly translates as Mr. Cross-
stitch) case has set out that the term "in part", as meant in Article 3 of the Genocide
Convention, contains a substantiality requirement. The Trial Chamber determined that Krstic
had the intent to kill, thus, the requirements of Art. 4(2)(a) of the Rome Statute have been met
(para 598 case IT-98-33-T, Prosecutor v. Krsti). Although the ICTY Appeals Chamber in the
Judgment of 19 April 2004 acknowledges that the Trial Chamber should have exressed its
reasoning more carefully (para 22), the remark is made that the Trials Chamber was correct
when determining that the part of the group that has been killed, was "substantial" as with
respect to the crime of genocide.
In concluding that some members of the VRS Main Staff had intented to destroy this
substantial part of a group, the Trial Chamber did not depart from the legal requirements for
genocide (para 38).
For an individual to be prosecuted for crimes against humanity, a "specific intent" exists when
there is "knowledge of the attack". This is a less strict criterion than is the "intent to destroy"
requirement for prosecuting one for the crime of genocide.
How does one determine, however, when the individual has had the "intent to kill"? The
mental element as such, mens rea, is described in Article 30(2) of the Rome Statute of the
ICC: a person has intent where (a) in relation to conduct, that person means to engage in the
conduct; (b) in relation to a consequence, that person means to cause that consequence or is
aware that it will occur in the ordinary course of the events.
The grounds for excluding criminal responsibility are to be found in Articles 31 and 32 of the
Rome Statute. Article 33 provides possible grounds for the exclusion of criminal
responsibility; paragraph 1 gives a negative formula: "..shall not relieve that person of
responsibility, unless..." one of the three options in (a)(b)(c) applies.
Note that the limitation of territorial and personal jurisdiction does not apply to the situations
as provided for in Articles 13(b) and 15 ter of the Rome Statute.
1. A State Party may refer a situation to the Prosecutor, in accordance with Article 14 of the
Rome Statute (Art. 13(a) Rome);
2. The Security Council of the UN, acting under Chapter VII of the UN Charter, may refer a
situation to the Prosecutor (Art. 13(b) Rome);
3. The Prosecutor may initiate investigations proprio motu (Article 13(c) in conjunction with
Article 15 Rome).
Note that referral by a State Party and investigation proprio motu by the Prosecutor, Article
13(a) and (c) Rome, are subject to the conditions in Article 12(2)(a)(b) of the Rome Statute.
2. How do the jurisdiction of the ICC and the Tribunals differ in relation to domestic
courts?
As said before, the nature of the jurisdiction of the ICC is complementary; the Court has no
primacy, as states have first responsibility, unless they are unwilling or genuinely unable to
carry out investigation or prosecution, which is an issue of admissibility. Once a case is
genuinely being investigated or prosecuted by a domestic court, the case will no longer be
admissible before the ICC: look up relevant Articles 1 and 17-19 of Part 2 of the Rome
Statute.
No such conditions are imposed on the Criminal Tribunals; the International Criminal
Tribunal of the former Yugoslavia shall have primacy over national courts, in accordance with
Art. 9(2) of the ICTY. The same holds good for the Rwanda Criminal Tribunal, as Article 8(2)
of the ICTR (UNICTR) was a mere predecessor of the concurrent jurisdiction provisions in
the ICTY.
The International Tribunals have another main advantage over the ICC in common: the
permanent status of the ICC demands from the Court that individuals only be prosecuted for
or convicted of crimes that meet the condition of nullum crime sini lege in accordance with
Article 22 of the Rome Statute. No such provisions are to be found in the ICTY and ICTR: the
International Criminal Tribunals are able to respond to recent activities, regardless of a strict
ex ante codification of crimes that the individual could be convicted of.
Note that treaty law imposes on states, party to a treaty, the obligation to exercise universal
jurisdiction regarding the repression of universally recognized, grave crimes. The crimes of
genocide and torture are crimes of such gravity. Article 6 of the Genocide Convention
stipulates that an offender shall be tried by a competent tribunal, which may exercise its
jurisdiction over the territory of the Party State in which the crime of genocide was
committed. The preamble to the Torture Convention reads that "the desire is to make more
effective the struggle against torture and other cruel treatment throughout the world". Article
7 of the Torture Convention stipulates that the State Party submit the case to its competent
authorities for the purpose of prosecution, assumed that the requirements from Art. 4-6 have
been met (territory issues).
5.1. The Appeals Chamber in the Tadi case of 2 October 1995: Kompetenz-Kompetenz
Concerning its jurisdiction, the Appeals Chamber in the Tadi Interlocutory Appeal of 2
October 1995 remarks that, according to the principle of "Kompetenz-Kompetenz" or "la
comptence de comptence", the Tribunal has the incidental or inherent competence
jurisdiction to determine its own jurisdiction (para 18). It is a necessary component of in the
exercise of the judicial function of the tribunals and as such, this practice was accepted by
general international law.
With respect to the questioning of the power of the UNSC to set up ICTY by means of a
resolution, the Appeals Chamber determines that the legal basis is to be found in the authority
of the Security Council, as was decided by the (paras 32-38 and 40).
The second ground of appeal in the 1995 Tadi Decision on the Defence Motion by the ICTY
2.3. Beneficiary
2.4.1. Zooming in on negative vs. positive obligations: ECtHR, Judgment of 9 June 2009,
application no. 33401/02
Alleged violation of Article 2(1) of the ECHR: the Right to life
The Court reiterates that the first sentence of Art. 2(1) enjoins the State not only to refrain
from the international and unlawful taking of life, but also to take appropriate steps to
safeguard the lives of those within its jurisdiction. This involves a primary duty on the State to
secure the right to life by putting in place effective criminal-law provisions (para 128).
Where there is an allegation that authorities have violated their positive obligation to
protect the right to life, it must be established to its satisfaction that the authorities knew or
ought to have known at the time of the existence of a real and immediate risk to the life (para
130).
Upon the alleged failure to protect life, the Court decides on questions concerning the scope
of the case (i), whether the local authorities could have foreseen a lethal attack by the offender
(ii), whether the authorities have displayed due diligence to protect the right to life (iii) and
the effectiveness of the criminal investigation by the authorities.
The Court reiterates that a failure to take reasonable measures which could have had a real
prospect of altering the outcome, is sufficient to engage the responsibility of the State (para
136).
2.4.2. The duty to strike a balance between positive and negative obligations
Although there is no general consensus among States Parties regarding the pursuance of
criminal prosecution when a victim withdraws his or her complaints, there seems to be an
acknowlegdement of the duty on the part of the authorities to strike a balance between the
Article 2, 3 or 8 rights in deciding on course of action. Factors to be taken into account are
listed by the ECtHR (para 138).
Taking these factors into consideration, the prosecution should continue in the public
interest, even if a victim withdraws a complaint (para 139).
In any event, the Court would underline that in this case, a perpetrators' rights (as the
authorities hold the view that interference would amount to a breach of the victims' rights
under Article 8 and that private matters are incompatible with positive obligations) cannot
supersede victims' human rights to life and to physical and mental integrity (para 147).
For example, take Article 10(2) of the ECHR and Article 19(3) of the ICCPR: "The exercise
of the freedom of expression, since it carries with it duties and responsibilities, may be subject
to such formalities, restrictions and penalties as are prescribed by law and are necessary in a
democratic society". From this follows that the rights holder is not free of responsibility.
These provisions aim to ensure the human rights of other individuals.
Thus, the requirements for governmental interference are: the interference has to be in
accordance with the law (prescribed by law), a legitimate aim has to be pursued (rights of
others in a democratic society) and interference should be necessary to ensure a democratic
society. Upon deciding whether certain measures, e.g. restrictions and punishment should be
deemed necessary, the ECtHR mentions the existence of a "pressing social need" and the
proportionality of the measures in question.
On the freedom of expression, the ECtHR has decided in the Handyside case that: " Freedom
of expression is applicable, not only to "information" or "ideas" that are favourably received
or regarded as inoffensive [..] but also to those that offend, shock or disturb the State or any
sector of the population. Such are the demands of pluralism, tolerance and broadmindedness,
without which there is no "democratic society".
3.1.2. Margin of appreciation with respect to the necessity criterion: pressing social need
In examining whether restrictions to the rights and freedoms can be considered "necessary in
a democratic society", the Court has frequently held that the Contracting States enjoy a certain
but not unlimited margin of appreciation. In case, the Contracting States have a wider margin
of appreciation as there is no uniform European conception of the requirements (para 25).
The Court considers that the measure taken, was intented to provide protection against
offensive attacks. In that respect, it finds that the measure may reasonably be held to have met
a "pressing social need". The authorities cannot be said to have overstepped their margin of
appreciation
(paras 30, 31).
As to the proportionality of the impugned measure, the Court is mindful of the fact that
the insignificant fine imposed was proportionate to the aims pursued (para 32).
The Court decides that there has been no violation of Article 10 of the ECHR. Contrary to this
judgment, the dissenting judges state that the "offense of the majority does not appear to be a
sufficient reason in a democratic society to impose the mentioned sanctions; otherwise, the
dictum from Handyside would be deprived of all effect. In our view, this consistent case-law
seems to place too much emphasis on conformism or uniformity of thought".
The Human Rights Council (HRC) and its predecessor (Commission on Human Rights) are
Charter-based, as they were established by resolutions of principal organs of the UN, whose
authorities flow from the UN Charter. In fact, the General Assembly has established the HRC
and the task of the HRC is to report its universal periodic review to the UNGA. The current
Subsidiary Bodies are the Universal Periodic Review Working Group and the Human Rights
Council Advisory Committee. The HRC has responsibility for Special Procedure mechanisms.
The role of the UNGA is laid down in Article 13 of the UN Charter. Articles 62(2) and 68 of
the UN Charter provide that ECOSOC is able to make recommandations and to set up
commissions.
Currently, there are nine UN human rights conventions with monitoring bodies to supervise
the implementation of the treaty provisions, among which the mostly discussed are:
1. HRC (Human Rights Committee), monitoring the ICCPR;
2. CESCR (Committee on ECOSOC), monitoring the ICESCR;
3. CAT (Committee against torture), monitoring the CAT.
The Optional Protocol to the ICESCR provides an individual complaints procedure, Art. 2 OP
(non-binding views) and an inter-state complaints procedure, Art. 10 OP.
As was said before, the UN monitoring mechanisms are not quite as strong as the regional
enforcement mechanisms. The explanation of the distinction is simple: the monitoring body of
the ECHR is the European Court of Human Rights. As a judicial body, the ECtHR is able to
issue legally binding judgments, in accordance with Article 46 ECHR. The treaty-based
nature of the ECHR implies that these judgments are, as an integral part, binding for Member
States, parties to this Convenant. Ultimately, the strong enforcement mechanism stems from
the parties' consent to be bound under treaty law.
Sources
Hot topics 85, State Library of South Wales;
Moscrop, Enforcing International Human Rights Law, 2014;
Human Rights Enforcment Mechanisms, ESCR;
Human Rights Bodies, Office of the High Commissioner;
Treaty-based and Charter-based bodies, Dag Hammarskjld Library (available via
Research.un.org);
Lowe, International law, Oxford University Press (2007).
Among the fundamental legal principles of GATT are the most-favoured nation clause (MFN,
Article I GATT), the National Treatment clause (NT, Article III GATT), the General
Elimination of Quantitative Restrictions (Art. XI (1) GATT) and Anti-dumping and
Countervailing Duties (Art. VI GATT).
1.1. Non-discrimination
Taken together, the MFN (Art. I GATT) and NT (Art. III GATT) underlie the non-
discrimination principle.
Art. I (1) GATT provides that any advantage granted by any contracting party to any product
originating or destined for any other country, shall be accorded immediately and
unconditionally to the like product originating or destined for the territories of all other
contracting parties.
Art. III (2) GATT provides that the products of any other contracting party shall not be
subject, directly or indirectly, to internal taxes or other internal charges of any kind in excess
of those applied to like domestic products; moreover, the products imported into the territory
of another contracting party shall be accorded treatment no less favourable than that accorded
to like products of national origin (only differential charges may be applied, based on the
means of transport and not nationality of the product).
An example to explain this. State Q. confines itself to the reduction and consolidation of the
tariff on imported cigarettes- the tariff is 10%. State R. imports cigarettes into the territory of
State Q.
State Q. lower the tariff on domestic cigarettes (which would be considered like products by
the Dispute Body) to 5%.
Should Article III GATT not be applicable, then it would be possible for State Q. to ultimately
render the Schedules of Consessions from their effect; it could simply do so by favouring its
internal market. From this example, it should be clear that provisions on market liberalization
cannot do without the principle of non-discrimination (not without reason, MFN and NT are
fundamental principles).
1.3. Exceptions
A state member to the WTO, restricting the import of products by another state member, could
invoke exeptions to justify the application of restrictive measures. General exceptions are
Is the restrictive measure jusitified, the measure needs to meet the requirements under the
"Chapeau", the Introductory Clause to Article XX GATT. Measures shall not be applied in a
manner which would constitute a means of arbitrary or unjustifiable discrimination between
countries where the same conditions prevail, or a disguised restriction on international trade.
Thus, assuming that a measure is related to one of the purposes of the general or specific
exceptions, any discriminating application of the measure is a violation of the exceptions
provided.
The Appellate Body hears appeals from panel cases (Appellate review, Art. 17 DSU). Only
parties to the dispute may appeal a panel report, but third parties which have notified the DSB
of a substantial interest in the matter, pursuant to Article 10(2) DSU, may make submissions
to and be given an opportunity to be heard by the AB (Art. 17(4) DSU). The appeal shall be
limited to issues of law, covered in the panel report and legal interpretations developed by the
panel (Art. 17(6) DSU).
Both the panel procedure and appellate review work on a system of negative consensus: the
DSB panel report will be adopted, unless all member decide by consensus not to adopt the
report (Article 17 DSU). Following the appellate review, an AB report shall be adopted by the
Dispute Settlement Body, consisting of all WTO Members. Again, the report shall be adopted
by negative consensus (Art. 14 DSU). This mechanism is often referred to as "quasi-
automatic", as a decision by one or more, but not all Members, cannot affect the adoption of
the report.