 Narrow Definition (Active Legal Personality): This goes beyond merely having rights

Final exam prep and obligations. It signifies the legal capacity to participate in the creation of new
international rights and obligations through international legal instruments. States and
international organizations primarily hold this active personality, as they are the formal
International law, once exclusively the domain of States following the Peace of Westphalia, has lawmakers in the international sphere.
evolved significantly. For about three centuries, States were the sole actors in international relations
and the only subjects of international law, creating and applying norms exclusively among While the distinction between active and passive personality can sometimes be blurred (for example,
themselves. This dogmatic view held that international law could not apply to other entities. when individuals or corporations can seek redress in international courts), its primary purpose is an
educational one, helping to categorize the diverse forms of legal personality. The International
Court of Justice recognized in 1949 that "the subjects of law in any legal system are not necessarily
identical in their nature or in the extent of their rights," emphasizing that legal personality varies
according to the "needs of the community."
The Evolution of International Legal Personality
States hold a central and foundational position in international law. Historically, they were the
Reality, however, proved this view incorrect as the need for international cooperation grew:
exclusive subjects and creators of this legal order. While we intuitively grasp what a state is, defining it
under international law can be complex, especially when considering entities like Palestine, Kosovo, or
 International Organizations: States began forming legally distinct entities, such as the "Islamic State."
organizations for managing rivers or mail exchange. These international organizations were
gradually recognized as having their own legal personality under international law.
 Individuals: Following the atrocities of World War II, international human rights law
emerged, granting individuals fundamental rights and freedoms, thereby limiting state power.
Furthermore, tribunals like Nuremberg and Tokyo demonstrated that international law could The Elements of Statehood
impose obligations on individuals, making them accountable for grave crimes.
 Corporations: More recently, bilateral investment treaties have extended substantial International law generally identifies three key elements that characterize a State, as codified in the
rights to corporations, further illustrating that international law is no longer confined to state- 1933 Montevideo Convention on the Rights and Duties of States:
to-state relations.
 International Civil Society: The increasing involvement of non-governmental 1. Territory: A State must have a defined land area. While precise, undisputed borders are not
organizations (NGOs) in advocating for issues like environmental protection and human strictly necessary, the entity must exercise control over a particular territory. The size of the
rights highlights the growing concern for international law beyond state actors. territory is irrelevant (e.g., Russia vs. Monaco). The concept of territorial sovereignty is
crucial here, signifying the exclusive right of a State to exercise its functions within its
It's clear that States are no longer the exclusive entities shaping or being shaped by international law. territory, as famously articulated by Max Huber in the Island of Palmas arbitration (1928).
2. Population: A State needs a permanent population residing on its territory. The size of the
population is not a determining factor, nor is their nationality. The key is the presence of
human beings living permanently within the territory.
3. Effective and Independent Government: This element requires a socially organized
Distinguishing Actors and Subjects of International Law population governed by authorities capable of effectively enforcing the State's international
obligations within its territory and over its population. Crucially, these authorities must be
A key distinction must be made between actors of international relations and subjects of independent, meaning they are not subject to external control. Traditionally, international
international law: law is indifferent to the form of government (e.g., republic, monarchy, democracy,
dictatorship) and prohibits external interference in a State's domestic affairs. However, an
 Actors of International Relations: This broad category includes any entity or person with increasing number of treaties, particularly at the regional level, now bind states to democratic
an impact on the international stage, such as states, international organizations, multinational forms of government and respect for fundamental political freedoms.
corporations, NGOs, individuals (religious leaders, businesspeople), terrorist groups, and even
migrants. The Montevideo Convention adds a fourth element: the "capacity to enter into relations with the other
 Subjects of International Law: These entities possess legal personality under States." However, this is often considered an external manifestation of an effective and independent
international law, meaning they have specific rights and/or obligations within this legal order. government.

It's important to view these three elements as criteria for the identification of States, rather than
"constitutive" elements in a way that implies a state ceases to exist if one element is temporarily absent
Understanding Legal Personality: Broad vs. Narrow (e.g., Germany after WWII or Somalia's prolonged lack of effective government). A state can persist
even without an effective government for a period.
Legal personality itself can be understood in two ways:

 Broad Definition (Passive Legal Personality): This refers to having rights and/or
State recognition is the act by which existing States formally acknowledge the existence of a new
obligations under international law. Individuals, for instance, are subjects in this sense
State and accept it into the community of nations. It's a fundamental and often politically charged act:
because human rights protect them, and they are bound by international criminal law (e.g.,
against genocide). However, this personality is considered passive because individuals don't
create these international legal instruments; they are simply beneficiaries or bound by them.
  Discretionary Act: Recognition is generally a discretionary act; there is no legal obligation State through secession. A seceding entity is not bound by this duty until it successfully
to recognize a new State. States can recognize a new entity whenever they deem it fit and may becomes a State.
even impose political conditions for recognition.  Practical and Moral Considerations: A radical prohibition on secession would effectively
 Unilateral Act: Recognition is fundamentally a unilateral act by one State towards another, freeze the composition of the international community, granting existing "mother-States" an
even if several states coordinate their recognition. There is no collective international body unlimited veto over any new state emerging from their territory. This is deemed impractical
empowered to recognize new States (e.g., UN membership does not automatically imply and somewhat morally unjustifiable.
recognition by all member states).  Illegality in Specific Cases: However, unilateral secession is illegal and therefore subject to
 Declaratory Theory: Traditionally, recognition is considered declaratory, meaning it the obligation of non-recognition if it results from grave breaches of international law,
merely acknowledges an existing factual situation of statehood rather than creating it. It has such as an illegal use of force by an assisting state (e.g., Turkish Republic of Northern Cyprus),
no specific legal effect in terms of establishing the new State's factual existence or legal violation of self-determination (e.g., Southern Rhodesia), or grave crimes like ethnic cleansing
personality. (e.g., Republika Srpska). In these instances, the secession itself is a consequence of illegal acts,
 Constitutive Effect (in practice): Despite being formally declaratory, recognition holds triggering the duty of non-recognition from other states.
significant political and practical importance. The more a nascent state is recognized, the more
its international effectiveness and de facto status are consolidated. While recognition In essence, while international law doesn't outright ban unilateral secession, it strongly condemns and
doesn't create statehood, it can certainly consolidate it, especially for fragile entities. requires non-recognition of secessionist entities that arise from serious international law violations.
Furthermore, recognition does establish a specific legal relationship between the recognizing
State and the recognized entity. In cases where a new state's factual existence is questionable, The Kosovo Advisory Opinion by the International Court of Justice (ICJ) on July 22, 2010,
statehood can become a "relative issue," dependent on subjective appraisals by individual addressed the question: "Is the unilateral declaration of independence by the Provisional Institutions
states. of Self-Government of Kosovo in accordance with international law?"

Obligation Not to Recognize Lawfulness of Declarations of Independence

While recognition is discretionary, there are instances where it is prohibited: The ICJ determined that declarations of independence are not prohibited under general
international law. The Court reviewed historical practice, noting that while declarations of
 Illegality (Stimson Doctrine): A customary rule of international law, formalized by the independence often faced opposition, the act of promulgating them was not considered contrary to
International Law Commission (Article 41, paragraph 2, Articles on the Responsibility of international law.
States for Internationally Wrongful Acts), dictates an obligation not to recognize situations
created by serious breaches of peremptory norms of general international law. This The principle of territorial integrity, enshrined in Article 2, paragraph 4 of the UN Charter and
principle, rooted in the "Stimson doctrine" (1932, in response to Japan's invasion of reaffirmed in General Assembly Resolution 2625 (XXV), primarily applies to relations between
Manchuria), dictates that a lawful situation cannot arise from an illegal act (ex injuria jus non existing States. It prohibits the threat or use of force against the territorial integrity or political
oritur). Examples include: independence of any State. The ICJ clarified that this principle does not, in itself, prohibit an entity
o The continued illegal presence of South Africa in Namibia after the termination of from making a unilateral declaration of independence.
its Mandate (ICJ Advisory Opinion, 1971).
o The illegal construction of the Israeli wall in the Occupied Palestinian
Territory (ICJ Advisory Opinion, 2004).
 UN Security Council Mandates: The UN Security Council can specifically impose a
binding duty of non-recognition on UN Member States through its resolutions. Examples When Unilateral Secession is a Right: Self-Determination of Peoples
include the non-recognition of:
o The racist minority regime in Southern Rhodesia (1965). While declarations of independence are not generally prohibited, this does not automatically confer a
o The "Turkish Republic of Northern Cyprus" (1983). positive right to secede on any people or region. The ICJ emphasized that an act not being in
o The annexation of Kuwait by Iraq (1990). violation of international law does not necessarily mean it constitutes the exercise of a right.
o The unilateral declaration of independence of "Republika Srpska" (1992).
o The annexation of Crimea by the Russian Federation (UN General Assembly However, a positive right to become independent does exist for specific categories of peoples:
resolution, 2014, though non-binding).
 Non-Self-Governing Territories: These are typically colonial peoples.
 Peoples Subject to Alien Subjugation, Domination, and Exploitation: This includes
peoples under foreign occupation or oppressive rule.
Unilateral Secession
This right, known as the right to self-determination, has evolved significantly:
The question of whether international law prohibits unilateral secession is complex:
 Early 20th Century: The concept emerged during and after World War I, with the Allied
 No General Prohibition: Traditionally, international law is silent on unilateral secession, Powers recognizing the right to statehood for nations within the Austro-Hungarian Empire
meaning it is not prohibited per se. While domestic law may deem it unconstitutional, general based on the "principle of nationalities." The League of Nations' Mandate system also
international law does not contain a rule against it. introduced the idea of "sacred trust of civilization" for peoples "not yet able to stand by
 Territorial Integrity: The principle of territorial integrity (e.g., Article 2(4) of the UN themselves," identifying them as bearers of specific rights.
Charter) applies to relations between existing States, not to an entity seeking to become a  Post-World War II Development: The UN Charter (Article 1, paragraph 2, and Article 55)
referred to the "self-determination of peoples." This concept was dramatically expanded with
 the fight against colonialism. A landmark development was the UN General Assembly Supreme Court of Canada regarding Quebec) but has not been affirmed as a positive right under
Resolution 1514 (XV), the "Declaration on the Granting of Independence to Colonial contemporary international law by the ICJ in the Kosovo Advisory Opinion.
Countries and Peoples," adopted on December 14, 1960. This resolution proclaimed the
necessity of ending colonialism and granted peoples in non-self-governing territories and The German reunification, while involving the self-determination of the German people, did not result
those under alien subjugation the right to freely determine their political status, including in the creation of a new state and thus does not extend the concept of external self-determination (in
complete independence. the sense of creating a new state) beyond the colonial context.
o This led to a significant increase in UN member states: from 60 in 1950 to 104 in
1961 (after Resolution 1514) and 127 in 1970.
The concepts of state continuity and state succession are crucial for understanding the legal
 Customary Law and Erga Omnes Obligation: The right to self-determination, status of entities in international law, particularly when territories change hands or new states emerge.
particularly for colonial peoples, has become a fundamental principle of customary
international law. The ICJ has affirmed it as an erga omnes right, meaning it must be
respected by all states, and all states have a legal interest in its protection.

State Continuity vs. State Succession

The Chagos Advisory Opinion  State Continuity: This occurs when a state's legal personality remains uninterrupted despite
changes in its territory, population, or government. The same legal person continues to exist.
A prime example is the Federal Republic of Germany (FRG) after German reunification.
The ICJ's 2019 Advisory Opinion on the Legal Consequences of the Separation of the Chagos
The GDR ceased to exist, but the FRG, which embodied the German State since WWII and
Archipelago from Mauritius in 1965 reinforced the customary nature and erga omnes character
continued the legal personality of the German Reich, maintained its international personality
of the right to self-determination.
and simply absorbed the GDR. Another example is Sudan after the secession of South Sudan;
despite losing territory, Sudan continues the international personality of the Republic of the
 Background: The Chagos Archipelago was administered as a dependency of the British Sudan.
colony of Mauritius. In 1965, the UK detached the Chagos Archipelago to create the British  State Succession: This involves a break or interruption between two separate legal
Indian Ocean Territory (BIOT) for a military base, in exchange for a sum of money and a personalities, where a new subject of international law (usually a new state) takes over from a
promise of return when the base was no longer needed. Mauritius gained independence in former one. A clear case is the dissolution of Czechoslovakia on January 1, 1993, which was
1968, but the Chagos Archipelago remained under UK administration, and its entire peacefully replaced by two entirely new states, the Czech Republic and the Slovak
population was forcibly removed. Republic. Neither claimed legal identity with Czechoslovakia; they both succeeded it as new
 ICJ Ruling: The Court determined that the relevant law was the right to self-determination subjects of international law.
as it existed between 1965 and 1968. It found that Resolution 1514 (XV) had a
declaratory and normative character, affirming the right to self-determination and the Issues of state succession and continuity are complex and often settled by specific agreements and
territorial integrity of non-self-governing territories as a corollary to this right. The Court treaties.
concluded that the detachment of the Chagos Archipelago was not based on the free and
genuine expression of the will of the people concerned, thus rendering the
decolonization of Mauritius unlawfully completed. The continued UK administration of the
Chagos Archipelago constituted an internationally wrongful act of an ongoing
character, obligating the UK to end it as rapidly as possible, and all states to cooperate in New States and Borders
completing Mauritius's decolonization.
The emergence of new states inevitably raises questions about border delimitations. International law
has developed specific rules to promote stability in this context:

Meanings of Self-Determination Beyond Colonial Contexts 1. Automatic Succession to Treaties Establishing International Borders:
o Normally, treaties only bind their contracting parties. However, an exception exists for
The right to self-determination applies to "all peoples," as stated in international covenants. It has two border treaties.
aspects: o When a new state emerges (e.g., through secession), it is, by definition, not a formal
party to the border treaties concluded by the "mother-state" that preceded it.
o Despite this, new states automatically succeed to the rights and obligations of the
 Internal Self-Determination: The right of a people to freely determine their political former state under these border treaties. This is a long-established rule serving the
status and pursue their economic, social, and cultural development within an existing state. crucial purpose of stability in international relations, preventing new states from
 External Self-Determination: The right of a people to secede and create a new State. unilaterally claiming non-existence of borders established by previous agreements.
For example, when Czechoslovakia dissolved, the Czech Republic and the Slovak
While the positive entitlement to external self-determination (i.e., the right to secede) has so far been Republic automatically inherited its border agreements with neighboring countries.
limited in state practice to colonial peoples or those under alien subjugation, domination, and 2. The Principle of Uti Possidetis Juris:
exploitation, this is largely due to states' reluctance to undermine their own territorial integrity. UN o This Latin maxim means "as you possess, so you may possess" and dictates that
documents, such as the Declaration on Indigenous Peoples, explicitly state that self-determination former internal administrative boundaries are transformed into new
should not be interpreted as authorizing actions that would dismember or impair the territorial international borders upon the independence of a territory.
integrity of sovereign states. o Historical Application:
 Latin American Decolonization (early 19th century): Internal
The concept of remedial secession, which argues that a right to secede arises when a people's administrative lines drawn by the Spanish Crown became the new
internal self-determination is completely frustrated, has been alluded to by some courts (e.g., the international borders between the newly independent former Spanish
provinces.
  African Decolonization (1960s): African leaders, through the
Organization of African Unity (1964), affirmed the intangibility of frontiers
inherited from colonization. This meant not only preserving existing International Legal Personality of International Organizations
international colonial borders but also transforming internal colonial
administrative lines (e.g., between French territories like Burkina Faso and
An international organization's legal personality refers to its distinct legal existence separate from its
Mali) into international borders.
members.
o Generalized Application by the ICJ: In a dispute between Burkina Faso and Mali,
the International Court of Justice (ICJ) generalized uti possidetis juris,
declaring it a "general principle" logically connected with the phenomenon of  Absence of Distinct Personality: States can create functionally distinct international
obtaining independence, applicable even outside the colonial context. The Court institutions that are not legally separate from their members. In such cases, the organization
emphasized its purpose to "prevent the independence and stability of new States being acts as a common organ of its members, and each member state is jointly responsible for its
endangered by fratricidal struggles provoked by the challenging of frontiers following actions (e.g., the Benelux for its first 50 years). Such an organization cannot become a party to
the withdrawal of the administering power." treaties independently.
o Application to Former Yugoslavia: This principle was notably applied during the  Explicit Grant of Personality: Increasingly, basic treaties establishing IOs explicitly state
dissolution of the former Yugoslavia. The Arbitration Commission, chaired by Robert that the organization has international legal personality, making it a separate subject of
Badinter, concluded that the internal administrative boundaries between the former international law. Consequently, the organization bears responsibility for its own conduct,
Yugoslav republics became protected international borders by default, unless distinct from its member states.
otherwise agreed upon.  Inferred Personality (Implied from the Treaty System): Even if a basic treaty is silent
o Implications: Uti possidetis juris promotes territorial stability and peace. on legal personality, or only generally refers to "legal personality" without specifying its
While new states are free to agree to different borders, this principle generally serves international nature, it's possible to deduce its international legal personality from the overall
as the default starting point for any border negotiations. system and purpose of the treaty.
o Limitations: Despite its general application, uti possidetis juris may not always o The ICJ's 1949 Advisory Opinion on Reparation for Injuries Suffered in
resolve all border issues automatically, especially in states with multiple layers of the Service of the United Nations is a landmark case. Following the assassination
internal administrative lines. Prior negotiation and agreement may still be required to of UN mediator Count Folke Bernadotte in Palestine, the UN sought reparation from
determine which specific administrative boundary should become an international Israel (a non-member at the time). The ICJ ruled that despite the UN Charter's silence
border. on the matter, the organization's functions, its ability to conclude agreements, its
privileges and immunities in member states, and the necessity to fulfill its founders'
International Organizations: Creation, Personality, and Governing Principles intentions all pointed to the "indispensable" attribution of international legal
personality.
o Furthermore, the ICJ concluded that the UN's international legal personality was
objective, meaning it existed not just vis-à-vis its member states but also in relation
International organizations (IOs) are a prominent feature of modern international law, a role that has to non-member states like Israel. The Court stated that "fifty States, representing the
significantly expanded, particularly in the latter half of the 20th century. Unlike states, which are vast majority of the members of the international community, had the power, in
largely formed through factual processes, IOs are deliberately created by states (and sometimes other conformity with international law, to bring into being an entity possessing objective
IOs) to achieve specific purposes. international personality."
 Compatibility with Domestic Legal Capacity: IOs can also be endowed with legal
Defining International Organizations capacity under the domestic laws of their member states (e.g., to rent offices, hire staff). This
domestic legal capacity is compatible with, but distinct from, their international legal
From a legal perspective, international organizations are characterized as: personality.

 Associations: They are the result of a deliberate intention of members to collaborate.

 Membership: Primarily composed of States (hence often called intergovernmental
organizations), but some, like the WTO, allow other international organizations or Two Governing Principles of International Organizations' Legal Capacity
autonomous customs territories as members (e.g., the European Union).
 Creation by Juridical Act: Typically established by a treaty between founding members, When endowed with international legal personality, two complementary principles shape an IO's legal
which serves as the organization's foundational instrument or "constitution," binding upon the capacity:
organization. This legal origin under international law distinguishes them from domestic
associations (like NGOs).
1. Principle of Speciality: Unlike states, which have general competence, international
 Specific Tasks (Functionalism): IOs are designed to fulfill particular functions and are
organizations are specialized legal persons. Their powers are limited by their specific
thus specialized. Their purpose dictates their scope, from managing a river to regulating civil
purposes and functions, as defined by their constituent instruments. For example, an
aviation or prosecuting international crimes (like the International Criminal Court).
organization established to protect migrating birds cannot exercise powers related to fisheries.
 Permanent Organs: They possess a permanent structure, including a secretariat The ICJ, in its 1996 advisory opinion on the Legality of the Use by a State of Nuclear
(international civil servants) and governing bodies where members are represented. This Weapons in Armed Conflict (referencing the WHO's request), affirmed this as a "basic
permanence makes them "institutions" with their own character and bureaucracy, where principle," noting that IOs are "invested by the States which create them with powers, the
actions are always justified by reference to their legal instruments and rules. limits of which are a function of the common interests whose promotion those States entrust
to them."
The International Law Commission's (ILC) Draft Articles on the Responsibility of International 2. Principle of Implied Powers: This principle acknowledges that IOs must possess
Organizations defines an IO as "an organization established by a treaty or other instrument governed subsidiary powers not expressly stated in their founding instruments but are
by international law and possessing its own international legal personality." This highlights the crucial necessary by implication to achieve their express objectives. The ICJ applied this in the
link between legal personality and accountability. 1949 Reparation for Injuries opinion, concluding that the UN had the implied power to bring
 a reparation claim because it was essential to the performance of its duties. However, the ICJ agencies (e.g., WHO, UNESCO, FAO), along with other UN funds and programmes, form the broader
also demonstrated the limits of this principle in the 1996 Nuclear Weapons case, ruling that "UN family," playing a vital role in the promotion, development, and respect for international law.
the WHO did not have the implied power to address the legality of nuclear weapons use, as it
was not a necessary implication of its health-related functions. The legality of an action, the
Court reasoned, does not determine the measures an organization might take to remedy its
effects.
Foundation of the United Nations

In summary, the principle of speciality defines the scope of an IO's powers based on its purpose, while
The UN's establishment in 1945 was the culmination of a series of diplomatic efforts during World
the doctrine of implied powers allows for unstated but necessary functions to fulfill those defined
War II, designed to create a post-war international order based on collective security and cooperation.
purposes. There is no contradiction; implied powers must serve the organization's specialized
Key milestones leading to the UN Charter's conclusion in San Francisco on June 26, 1945, include:
mandate.

 The Declaration of St. James's Palace (1941): Signed by Allied governments in exile,
The United Nations (UN) stands as a unique and indispensable international organization,
committing to work for a world peace based on freedom and justice.
primarily due to its overarching purposes and universal scope.
 The Atlantic Charter (1941): A joint declaration by the US and UK outlining war aims and
a vision for the post-war world, including self-determination and international cooperation.
 The Declaration by United Nations (1942): Signed by 26 Allied nations, endorsing the
Atlantic Charter principles and pledging to defeat the Axis powers.
Purposes of the United Nations  Moscow and Teheran Conferences (1943): Allied leaders discussed post-war
cooperation and the establishment of a general international organization.
According to Article 1 of the UN Charter, the core purposes of the organization are:  Dumbarton Oaks Conference (1944): Representatives from the US, UK, USSR, and
China drafted initial proposals for the UN Charter, outlining its structure and purposes.
 Maintaining International Peace and Security: This involves taking collective measures  Yalta Conference (1945): Key agreements were reached on the Security Council's voting
to prevent and remove threats to peace, suppress acts of aggression, and peacefully settle procedures, particularly the veto power of permanent members.
disputes in conformity with justice and international law.  San Francisco Conference (1945): Delegations from 50 countries met to finalize and
 Developing Friendly Relations Among Nations: This is based on respecting the adopt the UN Charter.
principle of equal rights and the self-determination of peoples, aiming to strengthen universal
peace.
 Achieving International Cooperation: This includes solving international problems of
economic, social, cultural, or humanitarian nature, and promoting universal respect for The International Court of Justice (ICJ)
human rights and fundamental freedoms without distinction based on race, sex, language, or
religion.
The International Court of Justice (ICJ), located in The Hague, is the principal judicial organ
 Serving as a Harmonizing Center: The UN acts as a hub for coordinating the actions of
of the United Nations. It succeeded the Permanent Court of International Justice (PCIJ), which
nations to achieve these common ends.
operated under the League of Nations. The ICJ's role is critical to international law, as it resolves legal
disputes between states (contentious cases) and provides advisory opinions on legal questions referred
The UN's commitment to these fundamental purposes, especially peace and security, necessitates its to it by authorized UN organs and specialized agencies. Its judgments and advisory opinions are highly
universality. A competing organization with similar aims would be inherently contradictory. influential in shaping and interpreting international law.
Furthermore, the UN Charter's obligations hold legal supremacy (Article 103), meaning they
generally override other international agreements in case of conflict.
The Importance of Formal Sources

 Law is Man-Made: All law, including international law, is a human construct. To

understand how international law is made, one must first understand who the "players" or
Main Organs of the United Nations subjects (states, international organizations) are and their capacity to create law.
 Focus on Process, Not Content: The primary interest here is not why certain rules exist
The UN operates through six principal organs: (the "material" sources – political, economic, historical, moral contexts), but how they come
into existence – the formal processes.
 The General Assembly: The main deliberative, policymaking, and representative organ.  Revealing Law-Making Authority: The accepted processes for creating international law
 The Security Council: Primarily responsible for the maintenance of international peace and directly indicate which actors possess the legal capacity and authority to make law. This links
security. Its decisions are binding on member states. the discussion of sources to the concept of full legal personality.
 The Economic and Social Council (ECOSOC): Coordinates the economic, social, and  Deeply Political, Yet Technical: While the theory of sources can appear technical and
related work of the UN and the specialized agencies. purely legal, it inherently has a deep political dimension. It defines who can make law and, by
 The Trusteeship Council: Originally established to oversee the administration of trust extension, who holds power in the international system.
territories, it has largely completed its work as all trust territories have achieved self-  Defining International Law Itself: As Hans Kelsen noted, "International law can be
government or independence. defined solely by the ways in which its norms are created." Studying these creation processes
 The International Court of Justice (ICJ): The principal judicial organ of the UN. provides a fundamental understanding of what international law is and what can be expected
 The Secretariat: The UN's administrative arm, headed by the Secretary-General. from it.
 Limiting and Enabling Power: A theory of sources serves a dual function: it limits power
by defining what actions are lawful and de-legitimizes those that are not, and it enables the
Beyond these main organs, a wide array of intergovernmental organizations, known as "specialized
agencies," are brought into relationship with the UN under Articles 57 and 63 of the Charter. These
 exercise of power by providing justification and authority for actions. By identifying what In International Law:
"counts as law," it directly impacts the political landscape.
 Horizontal Structure (Flat, Not Hierarchical): The international legal system is
characterized by the equal sovereignty of States. No State is legally superior to another,
and no State can unilaterally make law for another.
Distinguishing Material and Formal Sources  Consent as the Basis of Obligation: Since there is no higher authority to impose law,
international law must primarily arise from some form of consent of the States concerned.
The text highlights a crucial distinction: States essentially "give law to themselves."
 Fundamental Questions Arising from Sovereignty:
1. Reconciling Sovereignty with Law: How can sovereignty (implying autonomy
 Material Sources: These are the underlying reasons, contexts, and influences (historical, and absence of higher authority) be reconciled with the notion of law, which
moral, political, economic, psychological) that explain why a particular rule of law emerges
inherently limits autonomy?
and what its content is. They are context- and content-oriented.
2. Permissive vs. Prohibitive Legal Order: When a State wants to act, must it find a
 Formal Sources: These are the processes or methods by which legal rules, prescribing justification in a binding rule of international law, or is it free to act unless a rule
new obligations, are formally made. They are instrument-oriented and describe how law explicitly prohibits its action? Is international law a prohibitive (requires explicit
comes into being. permission) or permissive (allows anything not explicitly forbidden) order?

This week's focus is on formal sources.

Answers from the Permanent Court of International Justice (PCIJ)

Overview of Formal Sources to be Covered The PCIJ, the predecessor to the ICJ, addressed these fundamental questions in two seminal cases:

The course will survey the following formal sources of international law: 1. The Wimbledon Case (1923): Sovereignty and Treaty Obligations
o Facts: Germany refused passage to the British steamship 'Wimbledon' through the
1. International Customary Law: Rules that arise from the general and consistent practice of Kiel Canal (declared an international waterway by the Treaty of Versailles), citing its
states, followed by them from a sense of legal obligation. neutrality. Germany argued that acceding to such a treaty was an abandonment of its
2. International Treaties: Formal agreements between states or other subjects of sovereignty.
international law, creating binding obligations for the parties. This will include discussion on o PCIJ Ruling: The Court held that Germany was wrong. It famously stated: "The
their negotiation, conclusion, and validity. Court declines to see in the conclusion of any Treaty by which a State undertakes to
3. General Principles of Law: Fundamental legal principles recognized in national legal perform or refrain from performing a particular act an abandonment of its
systems that can be applied in international law. sovereignty. No doubt any convention creating an obligation of this kind places a
4. Unilateral Acts: restriction upon the exercise of the sovereign rights of the State, in the sense that it
o Unilateral Acts of States: Commitments made by a single state that can create requires them to be exercised in a certain way. But the right of entering into
international legal obligations. international engagements is an attribute of State sovereignty."
o Unilateral Acts of International Organizations: Particularly, resolutions of the o Answer to Question 1: This case affirmed that sovereignty and international
United Nations Security Council, which can be legally binding. law are reconcilable. States, by exercising their sovereign right to enter into
5. "Soft Law": While not "hard law" (i.e., not derived from the formal processes mentioned treaties, voluntarily accept limitations on their future conduct. Treaties do not
above), these are other acts and instruments (e.g., declarations, guidelines) that influence diminish sovereignty but are an expression of it.
international relations and may, over time, contribute to the development of customary law or 2. The Lotus Case (1927): Permissive Nature of International Law
treaties. o Facts: A collision between a French vessel (Lotus) and a Turkish steamer on the high
seas resulted in the death of Turkish sailors. Turkish authorities initiated criminal
By defining these creation processes, the theory of sources also implicitly defines what is not proceedings against the French officer, Lieutenant Demons, even though the act
international law, highlighting its "exclusive" aspect alongside its "inclusive" one. occurred outside Turkish territory and the victims were not Turkish nationals. France
protested Turkey's jurisdiction.
The Problem of Law-Making in the International Community o PCIJ Ruling: The Court found that Turkey had not violated international law. It
stated: "Restrictions upon the independence of States cannot therefore be presumed...
Far from laying down a general prohibition to the effect that States may not extend the
In Domestic Law:
application of their laws and the jurisdiction of their courts to persons, property and
acts outside their territory, it leaves them in this respect a wide measure of discretion
 Hierarchical Structure: Domestic legal systems are typically structured as a pyramid, with which is only limited in certain cases by prohibitive rules; as regards other cases, every
the Constitution (or Grundnorm, as per Hans Kelsen) at the apex. State remains free to adopt the principles which it regards as best and most suitable."
 Clear Typology and Hierarchy of Sources: Constitutions explicitly list legal sources (e.g., o Answer to Question 2 (The "Lotus Principle"): This landmark decision
statutes, decrees, regulations) and define the procedures for their enactment. established the permissive nature of international law. It implies that a State is
 Substantive and Procedural Conformity: Lower legal acts must conform both free to act as it pleases unless a specific rule of international law prohibits
procedurally and substantively to higher norms in the hierarchy, ensuring their validity. its action. If no prohibition exists, the action is considered lawful. This case is seen
 Centralized Authority: Law is generally made by designated, superior authorities (e.g., as a high mark of strict legal positivism in international law.
legislatures, courts) that can impose rules on subjects.
Lotus Overturned or Endorsed in Subsequent ICJ Jurisprudence? Article 38 of the ICJ Statute: Content and Interpretation

The Lotus principle, while foundational, has been controversial and debated due to its implications for Article 38, paragraph 1, instructs the Court to apply the following in deciding disputes:
State freedom of action. The increasing abundance of international rules makes its practical impact
less stark today. The question remains whether the ICJ has consistently upheld this principle.  a. International Conventions (Treaties): Both general (multilateral) and particular
(bilateral) treaties that establish rules expressly recognized by the contesting states. This is a
1. The Arrest Warrant Case (DRC v. Belgium, 2002): Subordination of Jurisdiction primary source of specific obligations agreed upon by states.
to International Law?  b. International Custom: Evidence of a general practice accepted as law. This refers to
o Facts: Belgium issued an international arrest warrant against the incumbent unwritten rules that emerge from consistent State practice accompanied by a sense of legal
Congolese Foreign Minister, Mr. Yerodia, for alleged incitement to racial hatred obligation (opinio juris).
committed in the DRC, despite him not being in Belgium and the victims not being  c. The General Principles of Law Recognized by Civilized Nations: These are
Belgian nationals. The DRC challenged Belgium's universal jurisdiction and violation fundamental legal principles common to the major legal systems of the world, applied to fill
of immunity. gaps in treaty and customary law.
o ICJ Ruling: The Court found that Belgium had violated Mr. Yerodia's immunity from  d. Subsidiary Means for the Determination of Rules of Law: These are not formal
criminal jurisdiction under international law. While the Court did not directly address sources of law themselves, but aids for the Court in identifying existing rules from the primary
Belgium's exercise of universal jurisdiction (as the DRC dropped that claim), its sources:
phrasing: "Provided that it has jurisdiction under international law," when o Judicial Decisions: Decisions of international courts (including the ICJ itself) and
discussing exceptions to immunity, suggested that the exercise of jurisdiction itself tribunals.
might be conditioned by international law, rather than merely not being prohibited by  Article 59 Caveat: According to Article 59 of the Statute, "The decision of
it. This could be interpreted as a subtle shift away from the pure Lotus permissive the Court has no binding force except between the parties and in respect of
approach, implying that jurisdiction needs some basis in international law, not just that particular case." This means there is no strict stare decisis (precedent) in
the absence of a prohibition. However, the Court made no explicit reference to Lotus. international law. However, judicial decisions, especially those of the ICJ, play
2. The Kosovo Advisory Opinion (2010): Reaffirmation of Lotus? a very important role in informing legal arguments and reasoning. They are
o Facts: The UN General Assembly asked the ICJ whether Kosovo's unilateral evidence of what the law is, not sources of new law.
declaration of independence was "in accordance with international law." o Teachings of the Most Highly Qualified Publicists: Writings of renowned
o ICJ Ruling: The Court framed its task as determining "whether or not the applicable international law scholars. While the ICJ rarely explicitly quotes scholars in its
international law prohibited the declaration of independence." It explicitly stated it judgments, academic writings are crucial for deciphering and systematizing
was not asked to determine if international law conferred a positive right to declare international practice and influencing the understanding and development of
independence. The Court concluded that international law contained no prohibition international law.
on unilateral declarations of independence.
o Interpretation: This opinion is widely understood as an endorsement of the Lotus
Key Interpretations of Article 38:
principle. By focusing solely on the absence of a prohibition rather than the existence
of a positive entitlement or right, the Court upheld the idea that actions not explicitly
forbidden by international law are permissible.  No Hierarchy of Sources: The listing order in Article 38 does not establish a hierarchical
order among international conventions, custom, and general principles. They are all equally
This section introduces Article 38 of the Statute of the International Court of Justice (ICJ) binding. The Court will logically first look for a binding treaty, then for customary rules, and
as the primary reference for identifying the formal sources of international law. It also discusses the finally for general principles, but this is an order of application, not superiority.
historical context of its drafting and its implications for the nature of international law.  Exhaustiveness and Evolution: While the list in Article 38 was likely intended to be
exhaustive in 1920, other sources of international law are now recognized, notably:
o Unilateral acts of States: Declarations or commitments by a single state that can
create legal obligations.
o Unilateral acts of international organizations: Resolutions, particularly those
Introduction to Article 38 of the ICJ Statute of the UN Security Council, can create binding obligations.
 Ex Aequo et Bono (Paragraph 2): Article 38, paragraph 2, allows the Court to decide a
 Historical Context: Article 38's origins trace back to the Statute of the Permanent Court of case "ex aequo et bono" (according to what is just and good, or equity) if the parties agree
International Justice (PCIJ), drafted in 1920. At that time, establishing a permanent thereto. This is an exception to the principle that the Court must apply existing international
international court was a novelty. States, accustomed to ad hoc arbitrations where the law. Significantly, no state has ever agreed to this provision before the ICJ, underscoring
applicable law was specified, needed reassurance that the Court would not create "judge-made states' preference for judicial decisions to be based on pre-existing, identifiable rules of
law" based on its own sense of justice, especially given the rudimentary state of international international law, which are ultimately rooted in their consent. This provision highlights the
law. deep-seated statist and positivist understanding that international law emanates from the will
 Purpose: Article 38 was designed as a "straightjacket" to strictly define the parameters within and consent of States.
which the Court was to function and base its judgments, making its findings more predictable
for potential disputing States.
 Competence of the Court: Article 38 is part of the Statute's "Competence of the Court"
chapter, implying that the Court's function to settle disputes in accordance with Normative Vehicles, Rules, and Obligations
international law means applying only the rules enumerated in this article. While this
might be a strict interpretation, the general principle that the Court must apply international
The theory of sources identifies "normative vehicles" (like custom, treaties, general principles) that
law, not arbitrary notions of justice, is essential.
contain "rules," which in turn contain "obligations." The ICJ, in cases like Obligations to Negotiate
Access to the Pacific Ocean (Bolivia v. Chile) (2018), has consistently affirmed the necessity of
grounding any alleged international obligation in one of these established formal processes. This
reinforces the idea that international law does not arise from diffuse effects but from specific, 1. North Sea Continental Shelf Cases (Germany/Denmark; Germany/Netherlands,
identifiable law-making mechanisms. 1969)
o Dispute: Delimitation of the continental shelf; Denmark and the Netherlands argued
This lesson focuses on customary international law, the second source listed in Article 38(1)(b) of that the equidistance principle from Article 6 of the 1958 Geneva Convention on the
the ICJ Statute. It emphasizes the importance of custom before studying treaties, as the making of Continental Shelf had become customary international law, binding on Germany even
treaties is itself often regulated by customary rules. Furthermore, customary international law is though Germany had not ratified the Convention. Germany denied this.
generally universal in scope, binding on all states and international organizations, unlike treaties o ICJ Ruling: The Court found that the equidistance principle had not become
which only bind their parties. Custom is unwritten and "floats in the air," making its identification customary international law.
crucial. o Significance for Customary Law: The Court explicitly articulated the two-
elements test: "Not only must the acts concerned amount to a settled practice, but they
must also be such, or be carried out in such a way, as to be evidence of a belief that this
practice is rendered obligatory by the existence of a rule of law requiring it. The need
for such a belief, i.e., the existence of a subjective element, is implicit in the very
The Two-Elements Theory of Customary International Law notion of the opinio juris sive necessitatis." The Court stressed that mere "frequency,
or even habitual character of the acts is not in itself enough" (e.g., ceremonial acts).
The International Court of Justice (ICJ) has consistently applied the "theory of the two elements" to For a rule to become customary, State practice must be "extensive and virtually
determine the existence of a rule of customary international law. These two elements are derived from uniform" and show a "general recognition that a rule of law or legal obligation is
Article 38(1)(b): "international custom, as evidence of a general practice accepted as law." involved."
2. Jurisdictional Immunities of the State (Germany v. Italy: Greece intervening,
1. Objective Element: "General Practice" (State Practice) 2012)
o What constitutes practice? It includes actions or even inactions (abstentions) by o Dispute: Italy's domestic courts denied Germany immunity from jurisdiction in civil
states. This can be found in domestic legislation, decrees, governmental agency claims brought by victims of WWII atrocities, and enforced Greek judgments of
behavior, armed forces conduct, domestic court judgments, and statements made by similar effect. Germany argued this violated its immunity under customary
states. Any factual or legal behavior attributable to a state counts. The behavior of international law.
states concerning individuals, corporations, or other non-state actors can also o ICJ Ruling: The Court affirmed Germany's immunity.
constitute practice. o Significance for Customary Law: The Court explicitly applied the "settled
o Qualities of Practice: practice" and "opinio juris" criteria. It examined national court judgments, state
 Recurrent and Consistent: Practice must be repeated over time and space, legislation on immunity, states' claims to immunity, and statements by states to
demonstrating a "settled practice." The idea of "instantaneous custom" is determine if there was both sufficient practice and the necessary belief in a legal
generally alien to this concept. obligation. The Court found a consistent state practice of granting immunity, even in
 General: It must be shared by a "real plurality of States," not necessarily all cases involving grave breaches of international law, coupled with opinio juris. In this
states, but at least those "specially affected" by the rule. For example, the case, unlike Continental Shelf, the Court found both elements present.
practice of landlocked states is largely irrelevant to maritime delimitation
customary law. In summary, the formation of customary international law is an informal, spontaneous, and
 Uniformity: While not requiring absolute uniformity, practice should be decentralized process, but the ICJ's "two-elements theory" provides a structured framework for
"virtually uniform" (as seen in the North Sea Continental Shelf cases). identifying its existence by requiring evidence of both consistent State practice and a sense of legal
2. Subjective Element: "Accepted as Law" (Opinio Juris Sive Necessitatis) obligation (opinio juris).
o Meaning: This distinguishes a mere usage, habit, or tradition (things done because
they are usually done that way) from a legal obligation (things done because they This section explores the complex interplay between State practice and opinio juris in the context of
ought to be done that way). States must feel that they are conforming to a legal customary international law, particularly when practice deviates from existing custom. It also
obligation. discusses the concepts of persistent objection, the binding nature of custom on new states, regional
o Evidence of Opinio Juris: It is reflected in states' assertions of a legal right or customs, and practical ways to identify customary rules.
obligation, their acknowledgments of such rights or obligations, and statements made
by states in various contexts. In the Germany v. Italy case, the Court looked for
assertions by states claiming immunity that international law accorded them such a
right, and acknowledgments by states granting immunity that international law
imposed an obligation to do so. The Interplay Between Contrary Practice and Opinio Juris
o The "Logical Trap": There is a conceptual difficulty in stating that opinio juris is
the "feeling of complying with what the law requires" when the law itself is in the A fundamental question arises when State practice appears to breach an existing customary rule: does
process of emerging. How can states feel bound by a law that doesn't fully exist yet? this breach constitute a wrongful act, or does it signify the emergence of a new customary rule, thereby
o Alternative Interpretation: It's often better to understand opinio juris as the changing or displacing the old one? This touches upon the normativity of customary rules and the
intent to make a custom, rather than already complying with an existing inherent tension in international law between "apology" (how things are, reflecting power) and
obligation. This resolves the logical conundrum by viewing it as a conscious act "utopia" (how things should be, reflecting ideals), as articulated by Martti Koskenniemi.
contributing to law formation.
 If custom merely reflects reality, law becomes an "apology for power," lacking true normative
force.
 If custom is completely disconnected from reality, it becomes utopian and ineffective.
Key ICJ Cases Illustrating the Two-Elements Theory
The balance between practice and opinio juris is crucial for maintaining this tension.
Inconsistent Practice and the Survival of Customary Rules states. For general customs, a "less demanding" standard often suffices, with
acquiescence inferred from the absence of objection by most states.
The International Court of Justice (ICJ) addressed the effect of inconsistent practice on the survival of
customary rules in the Military and Paramilitary Activities in and against Nicaragua
(Nicaragua v. USA) (1986) case.
Where and How to Find Customary International Law
 Facts: Nicaragua accused the USA of violating customary rules on the non-use of force and
non-intervention by supporting the Contras and mining harbors. The challenge was that these Identifying customary international law requires examining State practice and opinio juris:
rules are often breached in practice.
 ICJ Ruling (Para. 186): The Court stated that "it is not to be expected that in the practice of  "Digests" of Practice: Foreign affairs ministries and academics publish reports and
States the application of the rules in question should have been perfect... The Court does not compilations of a state's activities in international relations. The more accessible and publicly
consider that, for a rule to be established as customary, the corresponding practice must be in available a state's practice is (especially in widely used languages), the more influential it will
absolutely rigorous conformity with the rule." be in custom formation.
o Crucially, the Court emphasized that instances of inconsistent State conduct should
 Specialized Bodies:
generally be treated as breaches of the existing rule, "not as indications of the
o International Law Institute (Institut de droit international): A private
recognition of a new rule."
learned society founded in 1873, influential in codifying customary rules through
o Furthermore, if a State, acting in a way "prima facie incompatible with a recognized
resolutions.
rule," defends its conduct by appealing to exceptions or justifications
o International Law Commission (ILC): An official UN body established by the
contained within the rule itself, this attitude "is to confirm rather than to weaken
General Assembly, composed of 34 members elected in their individual capacity. The
the rule."
ILC is tasked with the codification and progressive development of
 Conclusion: This judgment signifies that a customary rule does not automatically cease to international law. Its work, often involving special rapporteurs and interaction with
exist or change simply because of inconsistent practice. The opinio juris (the belief that the UN member states, frequently serves as the basis for new treaties (e.g., Vienna
rule is still binding and the inconsistent act is a breach) plays a vital role in the rule's survival. Convention on the Law of Treaties) or authoritative restatements of customary law
(e.g., Draft Articles on State Responsibility).
 Judicial Decisions: The "safest way" to identify customary rules is through the case-law of
international courts and tribunals, especially the ICJ. While ICJ decisions are not strictly
Persistent Objector, New States, Regional Custom, and the Foundation of Custom binding precedents (stare decisis does not apply), its pronouncements on the existence of
customary rules carry significant authority and weight. The Court's reasoning regarding
These concepts relate to the generality of practice and the personal scope (who is bound) of custom can vary in detail depending on the rule's clarity and political implications.
customary international law, touching upon the underlying consent-based versus sociological
explanations for custom's binding nature. The International Law Commission (ILC), a body of experts established by the United Nations General
Assembly, has formulated a series of "Conclusions" to assist in the identification of customary
1. Persistent Objector Principle: international law. These conclusions codify and clarify the long-standing principles derived from
o If a State consistently objects to an emerging practice from its very inception, and judicial practice, particularly that of the ICJ, and scholarly work.
continues to do so, it might not be bound by the new customary rule once it
crystallizes.
o This reflects a voluntarist and consent-based conception of international law
formation. ILC Conclusions on the Identification of Customary International Law
o Accepted in principle by the ICJ in the Anglo-Norwegian Fisheries case (1951).
o However, if the objecting State is powerful enough to stop the practice, no custom will Part One: Introduction
emerge. If it's not powerful enough, the custom will still emerge, but the persistent
objector will not be bound.
2. New States:  Conclusion 1 - Scope: These conclusions outline the methodology for determining the existence and
o When a new State comes into existence, it is generally assumed to be immediately content of rules of customary international law.
bound by all existing rules of customary international law.
o It does not need to express consent, nor can it opt out of pre-existing customary rules Part Two: Basic Approach
through persistent objection (as the objection must be from the custom's inception).
o This situation suggests that the binding character of customary law also rests on  Conclusion 2 - Two constituent elements: To identify a rule of customary international law, one
sociological necessities (the need for a stable legal order) rather than solely on must ascertain the presence of:
pure voluntarism. 1. General practice (the objective element).
3. Regional or Local Customs: 2. Acceptance as law (opinio juris) (the subjective element).
o It is accepted that some customary rules may bind only a specific group of States in a
region, or even just two or three States locally.
This directly reflects Article 38(1)(b) of the ICJ Statute ("international custom, as evidence of a general
o The ICJ acknowledged the possibility of regional custom in the Asylum case
practice accepted as law") and the "two-elements theory" consistently applied by the ICJ in cases like
(Colombia v. Peru, 1950), though it found insufficient proof of one.
the North Sea Continental Shelf and Germany v. Italy.
o In the Right of Passage over Indian Territory case (Portugal v. India, 1960),
the Court recognized a local custom between two states.
o Paradox: Paradoxically, the more local or regional a custom is, the higher the  Conclusion 3 - Assessment of evidence for the two constituent elements:
standard of proof for practice and opinio juris is required from the concerned o Evidence must be assessed within the overall context, considering the nature of the rule and specific
circumstances.
o Crucially, each of the two elements must be separately ascertained and assessed,  Conclusion 11 - Treaties: A rule in a treaty can reflect custom if it:
highlighting that both practice and opinio juris are distinct and indispensable. o Codifies existing custom.
o Leads to the crystallization of an emerging customary rule.
Part Three: A General Practice o Generates a new custom through subsequent general practice accepted as law.

 Conclusion 4 - Requirement of practice: o The fact that a rule appears in multiple treaties may indicate custom but is not conclusive.
o Primarily refers to the practice of States, which contributes to the formation or expression of o This elaborates on the complex relationship between treaties and custom, where treaties can be
custom. evidence of custom or contribute to its formation.
o In some cases, the practice of international organizations can also contribute.  Conclusion 12 - Resolutions of international organizations and intergovernmental
o Conduct of other actors (e.g., NGOs, individuals) is not per se State practice, but it may be relevant conferences:
in assessing the practice of States or international organizations. o A resolution cannot, of itself, create a customary rule.
o This confirms the focus on State conduct as the primary driver of custom, while acknowledging the o However, resolutions can provide evidence for identifying custom or contribute to its development.
growing role of international organizations. o A provision in a resolution may reflect custom if it corresponds to general practice accepted as law.
 Conclusion 5 - Conduct of the State as State practice: State practice encompasses conduct o This clarifies that while UN General Assembly resolutions are generally not binding "hard law," they
across all branches of government: executive, legislative, and judicial functions. can be strong evidence of State practice and opinio juris, particularly if supported by widespread
o This reinforces the broad understanding of "State practice" discussed previously, encompassing voting patterns and subsequent State conduct.
various forms of governmental action.  Conclusion 13 - Decisions of courts and tribunals:
 Conclusion 6 - Forms of practice: o Decisions of international courts and tribunals (especially the ICJ) are subsidiary means for
o Practice can take diverse forms, including both physical acts (e.g., military actions, border control) determining custom.
and verbal acts (e.g., diplomatic statements, votes in international fora). o National court decisions can also be subsidiary means.
o Inaction (abstention) may also constitute practice under certain circumstances (e.g., consistent
failure to protest a particular action). o This reiterates Article 38(1)(d) and the understanding that judicial decisions, while highly influential,
o Specific forms include: diplomatic acts/correspondence, conduct related to UN resolutions or are not themselves sources of law but rather evidence of existing law.
intergovernmental conferences, conduct related to treaties, executive/operational conduct,  Conclusion 14 - Teachings: The teachings of highly qualified publicists (scholars) serve as a
legislative/administrative acts, and decisions of national courts. subsidiary means for determining customary rules.
o This again directly reflects Article 38(1)(d).
o No predetermined hierarchy among these forms.
o This aligns with the flexible approach to identifying practice, recognizing its varied manifestations. Part Six: Persistent Objector
 Conclusion 7 - Assessing a State’s practice:
o All available practice of a State should be considered as a whole.
 Conclusion 15 - Persistent objector:
o Inconsistent practice from a particular State may reduce the weight given to its practice. o A State that clearly expresses and persistently maintains its objection to an emerging
o This aligns with the ICJ's stance in Nicaragua v. USA, where perfect consistency is not required, but customary rule during its formation will not be bound by that rule.
variations might impact the weight of the evidence. o This principle does not apply to jus cogens (peremptory norms).
o This confirms the "persistent objector" principle, acknowledging a limited consent-based exception to
 Conclusion 8 - The practice must be general:
the universality of customary law, while safeguarding the supreme nature of jus cogens norms.
o Practice must be sufficiently widespread and representative, as well as consistent.
o No particular duration is required, meaning custom is not necessarily ancient.
Part Seven: Particular Customary International Law
o This reiterates the requirement for "generality" discussed in the North Sea Continental Shelf cases,
emphasizing breadth and consistency over strict time requirements.
 Conclusion 16 - Particular customary international law:
o Refers to customary rules applying only among a limited number of States (regional, local, or
Part Four: Accepted as Law (Opinio Juris) other).
o To determine its existence, there must be a general practice among the States concerned that is
 Conclusion 9 - Requirement of acceptance as law (opinio juris): accepted by them as law among themselves.
o The practice must be undertaken with a sense of legal right or obligation. o This formalizes the concept of regional/local custom previously recognized by the ICJ, emphasizing
o It must be distinguished from mere usage or habit. the need for demonstrable consent and practice specific to the limited group of states.
o This directly addresses the subjective element, confirming the distinction between legal obligation
and courtesy/tradition, as highlighted by the ICJ in the North Sea Continental Shelf cases. You've provided all three parts of the text. Here's a summary of the complete content on international
 Conclusion 10 - Forms of evidence of acceptance as law (opinio juris): treaties, based on the information you provided:
o Evidence can take many forms, including: public statements by states, official publications,
government legal opinions, diplomatic correspondence, national court decisions, treaty provisions,
and conduct related to resolutions of international organizations or intergovernmental conferences.
o Failure to react (acquiescence) to a practice over time may serve as evidence of opinio juris, Summary: International Treaties and the Law of Treaties
provided the State was in a position to react and circumstances warranted a reaction.
o This provides practical guidance on how to identify the often elusive opinio juris, including the This comprehensive overview focuses on international treaties, also known as "international
significance of silence or inaction. conventions" as per Article 38 of the ICJ Statute, and the rules governing their creation and effects.
The primary legal framework for treaty law is the 1969 Vienna Convention on the Law of
Part Five: Significance of Certain Materials for the Identification of Customary Treaties (VCLT), though its core provisions largely reflect customary international law, making
International Law them applicable even to states not party to the Convention or to treaties concluded before its entry into
force.
 international agreements entered into by Member States must be registered with the UN
Secretariat "as soon as possible" and subsequently published in the United Nations
1. The Notion of a Treaty Treaty Series.
o Sanction: Unlike the League of Nations system where non-registered treaties were
not binding, Article 102(2) UN Charter stipulates that non-registered treaties cannot
A treaty is an international agreement between subjects of international law that is
be invoked before any organ of the United Nations (e.g., the ICJ or Security
governed by international law. Key characteristics include:
Council). While secret treaties may still exist, the registration requirement encourages
transparency and ensures enforceability within the UN system.
 Form: While the 1969 VCLT specifically applies to agreements "concluded in written form,"
unwritten agreements can also have legal force if there is a clear intention to be bound by legal
obligations. Treaties can be embodied in a single instrument or multiple related documents.
 Name: The specific designation (e.g., treaty, convention, pact, charter, protocol,
memorandum of understanding) does not alter its legal character; the crucial element is the 3. Reservations to Treaties
intent to create legally binding obligations under international law. This distinguishes treaties
from "gentlemen's agreements" or contracts governed by domestic law. Reservations are unilateral statements made by a State (at signature, ratification, etc.) that purport
 Parties: The 1969 VCLT primarily governs treaties between States. A separate 1986 Vienna to exclude or modify the legal effect of certain provisions of a treaty in their application to
Convention addresses treaties involving international organizations, though it has not yet that State (Article 2(1)(d) VCLT). They are crucial for encouraging broader participation in multilateral
entered into force. However, due to the customary nature of many VCLT rules, similar treaties by allowing states to tailor their commitments to a degree.
principles apply.
 Fundamental Rule: Pacta Sunt Servanda: The bedrock principle of treaty law, codified  Nature: Reservations are unilateral and are distinguished from mere "declarations" by their
in Article 26 VCLT, is "agreements must be kept." Every treaty in force is binding upon its intent to alter legal effect. They must be specific and cannot relate to the treaty in general.
parties and must be performed by them in good faith. They must be made no later than when the State expresses its consent to be bound.
 Permissibility (Article 19 VCLT): Reservations are subject to limits:
1. Prohibited by the treaty: The treaty itself may forbid reservations (e.g., ICC
Statute, Article 120).
2. Only specified reservations allowed: If the treaty lists permissible reservations,
2. Treaty Making Process
others are prohibited.
3. Incompatible with the object and purpose of the treaty: This is a crucial
The formation of treaties typically involves a series of steps: criterion, meaning a reservation cannot undermine the treaty's fundamental goals
(derived from the ICJ's 1951 Genocide Convention advisory opinion).
 Negotiations: International law provides minimal rules for negotiations, allowing States  Consequences of Invalidity: If a reservation is deemed invalid (e.g., by a
flexibility to achieve successful outcomes. However, a key requirement is that individuals court like the European Court of Human Rights in Belilos v. Switzerland), the
participating in negotiations must have "full powers" (Article 2(1)(c) and Article 7 VCLT), reserving State might be considered bound by the treaty in its entirety,
meaning authorization from their State to represent it. Heads of State, Heads of Government, especially in human rights contexts, though this is debated for purely
and Foreign Ministers are presumed to have full powers. contractual treaties. Absent an adjudicative body, the validity often falls to
 Signature: The signature of a treaty (Article 10 VCLT) primarily serves to authenticate the other contracting parties to assess.
text, making it final and definitive.  Legal Effects of Valid Reservations (Article 21 VCLT):
o Consent to be Bound: Signature can express consent to be bound if the treaty
explicitly states so, or if the negotiating parties agreed to this effect (Article 12 VCLT). 1. Reciprocal Effect: Between the reserving State and other contracting parties, the
o Ratification: If signature does not express consent, a separate act called reservation applies reciprocally. If State A makes a reservation to Article X, State A is
ratification (or acceptance, approval, accession) is required. This is an international not bound by Article X, and other States are not bound by Article X vis-à-vis State A.
act by which a State formally establishes its consent to be bound (Article 11 VCLT). 2. Relative Effect: Among the other contracting parties (who have not made the
States choose between signature-only or ratification processes to allow for domestic reservation), the treaty's provisions (including those subject to reservation by another
approval (e.g., parliamentary consent) or further consideration. party) apply fully inter se. This creates a "web of bilateral relations" within a single
 Entry into Force: A treaty becomes legally binding when it enters into force. For bilateral multilateral treaty, where the exact obligations vary between pairs of States.
treaties, this might be upon exchange of ratification instruments. For multilateral treaties, this  Acceptance and Objection to Reservations (Articles 20 & 21(3) VCLT): The VCLT
usually requires a specified number of ratifications and/or a set period after that threshold is establishes a complex system:
met (e.g., Article 84 VCLT for the VCLT itself required 35 ratifications and 30 days thereafter). o Acceptance: Reservations are generally considered accepted if no objection is raised
Only upon entry into force do States become fully bound by the pacta sunt servanda principle. within 12 months of notification (tacit acceptance). If at least one other party
 Interim Obligation (Article 18 VCLT): Between signature and entry into force, a State accepts, the reserving State becomes a party to the treaty, and the reservation
that has signed or expressed its consent to be bound is obliged not to defeat the object and produces its effects. Unanimous objection by all other parties would prevent the
purpose of the treaty. This is a good faith obligation to abstain from actions that would reserving State from becoming a party.
undermine the treaty's core goals. This obligation ceases if the State makes clear its intention o Objection:
not to become a party. The ICC Statute case involving the U.S. demonstrates this principle,
where the U.S. initially signed but later explicitly withdrew its intention to become a party, 1. "Hard" Objection (Preventing entry into force): An objecting State can
thereby ending its interim obligation. explicitly declare that it opposes the entry into force of the treaty between
 Depositary (Article 77 VCLT): For multilateral treaties, a depositary (often the UN itself and the reserving State due to the reservation (Article 20(4)(b) VCLT).
Secretary-General) is designated to centralize the process of receiving instruments of This prevents any treaty relationship between those two specific States.
ratification and keeping parties informed. 2. "Simple" Objection (Not preventing entry into force): If the objecting
 Registration and Publication (Article 102 UN Charter): To prevent "secret treaties" State does not explicitly oppose the treaty's entry into force, the effect is that
(which were blamed for sparking WWI), the UN Charter mandates that all treaties and
 "the provisions to which the reservation relates do not apply as between the 3. The violation was manifest (i.e., "objectively evident to any State conducting
two States to the extent of the reservation" (Article 21(3) VCLT). This outcome itself in the matter in accordance with normal practice and in good faith,"
is largely indistinguishable from the reciprocal effect of the reservation Article 46(2) VCLT).
itself. Therefore, a simple objection, in essence, primarily expresses discontent  The Cameroon v. Nigeria case demonstrated that for a violation to be
and does not prevent a valid reservation from having its intrinsic legal effects. "manifest," the domestic rule of fundamental importance (like a constitutional
 Withdrawal of Reservations: A reserving State may withdraw its reservation at any time rule on treaty-making) must have been properly publicized to the other
(Article 22 VCLT). contracting party.
 Genuine and Informed Consent: Consent can be invalidated if it results from:
The example of Pakistan's reservations to the Convention against Torture (CAT) and o Error (Article 48 VCLT)
subsequent objections from other states (like Australia, Finland, and the UK) illustrates the practical o Fraud (Article 49 VCLT)
application of these rules. States often object to broad "sharia law" or "constitutional law" reservations o Corruption of a State's representative (Article 50 VCLT)
because they lack specificity and undermine the clear scope of obligations, and some objections o Coercion of a State's representative (Article 51 VCLT)
explicitly state that they do not preclude entry into force, thus resulting in the "simple objection" o Coercion of a State by threat or use of force (Article 52 VCLT): This is a
outcome. Pakistan subsequently withdrew some of its more controversial reservations. particularly important ground for invalidity.
 It refers to force "in violation of the principles of international law embodied
in the Charter of the United Nations," primarily military force.
This text delves into the validity of treaties under international law, primarily governed by the 1969
 During the VCLT negotiations, there was debate about including
Vienna Convention on the Law of Treaties (VCLT). The core idea is that for a treaty to be
economic/political coercion, but it was limited to military force due to the UN
legally binding, it must meet certain essential requirements. If these requirements are not met, the
Charter's scope. While other forms of pressure are condemned, they do not
treaty is considered null and void, meaning it is rejected from the international legal order
invalidate treaties, though they might entail international responsibility.
retroactively.
 Crucially, only illegal use of force invalidates a treaty. A peace treaty
imposed by an aggressor State (violating the prohibition on aggression) would
be invalid, whereas a treaty resulting from a lawful use of force (e.g., self-
defense) would be valid.
The Validity of Treaties: Essential Requirements
3. Illegality of Object (Conflict with Jus Cogens)
The VCLT (Article 42(1)) lists specific and limited grounds for invalidating a treaty, aiming to strike a
balance between legal security (ensuring treaties are not easily overturned) and the integrity of  Definition (Article 53 VCLT): A treaty is void if, at the time of its conclusion, it conflicts
international law (preventing legal force from being granted to instruments that violate with a peremptory norm of general international law, also known as jus cogens.
fundamental principles). o Jus cogens norms are "accepted and recognized by the international community of
States as a whole as a norm from which no derogation is permitted and which can be
Three main reasons can lead to the invalidity of a treaty: modified only by a subsequent norm of general international law having the same
character."
1. Lack of Legal Capacity  Jus Cogens vs. Jus Dispositivum: Unlike jus dispositivum norms (which States can freely
derogate from by agreement), jus cogens norms represent fundamental, non-derogable
 States: According to Article 6 VCLT, every State possesses full capacity to conclude principles embodying the international ordre public. They limit State sovereignty, meaning
treaties due to their equal sovereignty. This is rarely an issue for States. States cannot validly conclude treaties that violate them.
 International Organizations (IOs): IOs are specialized entities, and their capacity to  Formation: The ICJ (e.g., in Belgium v. Senegal) has affirmed that jus cogens norms are part
conclude treaties depends on their specific competences as defined by their founding of customary international law, formed through the usual process of State practice and
treaties or rules. The implied powers doctrine can sometimes be invoked to establish such opinio juris, but with a special, heightened opinio juris: acceptance and recognition by
capacity even if not explicitly stated (e.g., the ERTA case for the European Economic the international community as a whole that no derogation is permitted.
Community).  Examples: While there's no exhaustive official list, widely accepted jus cogens norms
include:
o Prohibition of aggression.
2. Defect of Consent
o Prohibition of genocide, crimes against humanity, and war crimes.
o Prohibition of slavery.
Consent to be bound by a treaty must be properly given, meaning it must come from a competent o Prohibition of apartheid and racial discrimination.
organ and be genuine and informed. o Prohibition of torture.
o (Also, the ILC's 2019 draft conclusions include basic rules of international
 Competence to Express Consent: humanitarian law and the right of self-determination).
o While domestic law or an organization's internal rules govern which organ is  Significance: While direct invalidation of treaties due to jus cogens breaches is rare, the
competent to express consent, States cannot generally invoke their internal concept is profoundly important. It signifies that international law upholds certain core values
law to justify non-performance of a treaty (Article 27 VCLT). This is a common to humanity that cannot be transgressed, and serious breaches of jus cogens norms
fundamental principle ensuring the supremacy of international law over domestic law. entail specific consequences beyond treaty invalidity.
o Sole Exception (Article 46 VCLT): A State can invoke a violation of its internal  Note: Substantial inequality of obligations within a treaty is not a ground for invalidity, unless
law regarding competence to conclude treaties as invalidating its consent, but only if it relates to a defect of consent.
three strict conditions are met:
1. The violation concerns a rule of internal law specifically about competence
to conclude treaties.
2. The rule is of fundamental importance.
Final Notes on Treaty Invalidity operation among States," both recognized as reflecting customary international law by
the ICJ).
 Invocation: Generally, only the party whose consent was affected can invoke a defect of o This usage emphasizes the importance or axiomatic nature of a customary rule (e.g.,
consent (subject to Article 45 VCLT on loss of right to invoke). However, invalidity based on the equal sovereignty of States, pacta sunt servanda), rather than indicating a
coercion of a representative (Art. 51), coercion of a State (Art. 52), or conflict with jus cogens principle derived from comparative domestic law.
(Art. 53) can always be invoked due to the gravity of the breach.
 Scope: Invalidity typically affects the whole treaty. However, Article 44 VCLT allows for the General Principles in ICJ Cases:
separability of certain provisions to "save" parts of a treaty, unless the invalidity is based
on Articles 51, 52, or 53. The text provides examples of how the ICJ has used the term "general principles":
 Retroactivity: Invalidity is retroactive, meaning the treaty is considered null from its
inception, though rules in Articles 69 and 71 VCLT temper this for its temporal scope. 1. "General principle of law" within the meaning of Article 38 (rare):
 Procedure: Articles 65 and 66 VCLT outline a procedure for disputes concerning treaty o In the Legal Consequences for States of the Continued Presence of South
invalidity among VCLT parties. Disputes related to jus cogens (Art. 53 or 64) can be submitted Africa in Namibia (South West Africa) Advisory Opinion (1971), the ICJ invoked
to the ICJ, though States can make reservations to this jurisdiction. a "general principle of law" that "a power of termination on account of breach, even if
unexpressed, must be presumed to exist as inherent in any mandate, as indeed in any
This framework provides the international legal community with a structured approach to assessing agreement." This is a clear instance of the Court drawing a principle from general
the fundamental legality and binding force of international agreements. contract law applicable across legal systems to fill a gap in the specific mandate
agreement.
This text explores "General Principles of Law" as a source of international law, as listed in Article 2. "General principle" or "Principle" (often referring to established international
38(1)(c) of the ICJ Statute. It distinguishes between the historical understanding of this term and its legal concepts):
more contemporary usage, particularly in the practice of the International Court of Justice (ICJ). o Principle of Speciality: In the Legality of the Use by a State of Nuclear
Weapons in Armed Conflict Advisory Opinion (1996), the Court affirmed the
"general principle of speciality" for international organizations, meaning they possess
specific, not general, competences defined by their constitutive instruments. This is a
foundational principle of international institutional law.
General Principles of Law as a Source of International Law o Obligation to make reparation: In Avena and Other Mexican Nationals
(2004), the Court referred to the "general principle on the legal consequences of the
Historical Context and Purpose (Article 38(1)(c) ICJ Statute): commission of an internationally wrongful act," stating that "the breach of an
engagement involves an obligation to make reparation in an adequate form." This
 The phrase "general principles of law recognized by civilized nations" originated in the 1920 principle, originating from the PCIJ's Factory at Chorzow case, is a cornerstone of
Statute of the Permanent Court of International Justice (PCIJ). While the term "civilized international responsibility.
nations" is now outdated and Eurocentric, reflecting the era in which it was drafted, all nations o Uti Possidetis: In the Frontier Dispute (Burkina Faso/Republic of Mali)
are currently presumed equally civilized. (1986), the Court described uti possidetis (the principle that newly independent states
inherit the colonial administrative boundaries) as a "general principle, which is
 The primary purpose of including general principles was to address the problem of "non
logically connected with the phenomenon of the obtaining of independence."
liquet" – situations where the Court might have jurisdiction but find no applicable treaty or
3. "Principle" as Customary Law (most common usage):
customary international law rule to resolve a dispute. General principles were intended to fill
o In the Military and Paramilitary Activities in and against Nicaragua
these gaps, providing a basis for judgment without the Court having to "invent" new rules.
(Nicaragua v. United States of America) (1986), the Court explicitly stated that
 Historically, "general principles of law" referred to rules of domestic law common to the the prohibition on the use of force (Article 2(4) UN Charter) is "not only a principle of
main legal systems of the world (e.g., civil law, common law, Chinese law). The customary international law but also a fundamental or cardinal principle of such law."
convergence of these domestic laws was seen as a form of "consent" from states, implying their
o In the Accordance with international law of the unilateral declaration of
acceptance of such common rules at the international level.
independence in respect of Kosovo Advisory Opinion (2010), the Court referred
 This dual nature allowed the drafters to reconcile positivism (law based on consent) and to "the principle of territorial integrity" as an "important part of the international legal
naturalism (law based on inherent legal necessities), as common principles across diverse order" and "enshrined in the Charter of the United Nations, in particular in Article 2,
legal systems could be seen as reflecting universal legal requirements. paragraph 4," implying its customary nature.

Evolution and Modern Usage: In conclusion, while "general principles of law recognized by civilized nations" in Article 38(1)(c)
historically referred to common principles of domestic law used to prevent non liquet, the term
 Due to the significant development of international law through treaties and customary rules, "general principles" or "principles" in contemporary international legal practice, especially by the ICJ,
the need for general principles (in the sense of common domestic law rules) to fill gaps has more frequently denotes well-established or axiomatic rules of customary international law.
become less frequent.
 Challenges of Identifying General Principles: Rigorously identifying common This text explores unilateral acts as a potential source of international law, distinguishing between
principles across numerous and diverse domestic legal systems would be a lengthy and unilateral acts of States and those of international organizations, and specifically addressing the legal
complex comparative law exercise, potentially slowing down judicial proceedings. status of UN General Assembly resolutions.
 "General Principles of International Law" vs. "General Principles of Law":
o In contemporary international legal discourse and ICJ judgments, the terms "general
principles" or "principles" are often used to refer to customary international law
rules, particularly those of fundamental importance or well-established character (e.g.,
principles listed in Article 2 of the UN Charter, or the 1970 UN General Assembly Unilateral Acts of States
"Declaration on Principles of International Law concerning Friendly Relations and Co-
While international law is primarily based on the consent and agreement between multiple States, the 2. Shared Legal Nature: If the founding treaty of an IO has an international legal
concept of a unilateral act allows a single State to bind itself through its own will. character, then the unilateral acts adopted under it also share that international legal
nature. They are considered instruments and sources of international law from the
 Core Principle: A State cannot unilaterally impose obligations on other States without their perspective of international law.
consent. However, it can undertake obligations vis-à-vis other States through its own  Kosovo ICJ's Advisory Opinion (2010): The ICJ considered whether the "Constitutional
unilateral declarations or actions. Framework for Provisional Self-Government" of Kosovo had an international or domestic legal
 The Nuclear Tests Cases (Australia/New Zealand v. France, 1974): This landmark character.
ICJ case is central to understanding binding unilateral acts of States. o Ruling: The Court determined it had an international legal character because it
o Facts: Australia and New Zealand sought to stop France's atmospheric nuclear tests derived its binding force from a UN Security Council resolution (Resolution 1244
in the South Pacific. France, not appearing in court, made public declarations through (1999)), which in turn derived its binding force from the UN Charter. This
its highest authorities (President, Prime Minister, Ministers) that these would be the demonstrated the "normative chain of validity" where unilateral acts of an IO inherit
last atmospheric tests. the international legal nature of the foundational treaty.
o ICJ Ruling: The Court found that when a State makes a public declaration with o Dual Nature: The Court acknowledged that while the Constitutional Framework had
the intention to be bound by its terms, that declaration constitutes a legal an international legal character, it also functioned as part of a specific legal order
undertaking. applicable only in Kosovo, governing matters typically addressed by internal law,
 No Quid Pro Quo Needed: Crucially, no reciprocity, acceptance by other showcasing that a legal rule can have a "dual legal nature."
States, or even a reply is required for such a unilateral declaration to take
effect. Its binding nature stems from the declarant State's intention.
 Good Faith: The Court emphasized that the binding character of a unilateral
obligation, like treaties, is based on the principle of good faith. Interested UN General Assembly Resolutions and Customary Law
States can rely on these declarations and expect them to be respected.
o Outcome: Since France was now legally bound by its promise to cease atmospheric
 Limited Binding Power: The UN General Assembly (UNGA), comprised of all member
tests, the Court considered the objective of Australia and New Zealand's claim to be
States, has very broad functions but limited powers. It is not a "parliament of the world"
met, and thus, the dispute no longer had an "object," leading to the case's dismissal.
and, with few exceptions (e.g., internal administrative matters like budget or elections), its
 Requirements for a Binding Unilateral Act of a State:
resolutions are not legally binding on member States. They are generally considered
o Intention to be bound: This is paramount and must be clearly conveyed by the
political documents rather than legal instruments.
language used and the surrounding circumstances.
 Role in Customary International Law: Despite not being binding in themselves, UNGA
o Publicity: The declaration must be made publicly.
resolutions can play a crucial role in the formation and evidence of customary
o Competent Authority: The declaration must be made by an authority capable of
international law:
binding the State internationally (e.g., Head of State, Head of Government, Minister
o Declaratory Effect: Some resolutions can declare (reflect) pre-existing
for Foreign Affairs).
customary rules. A prime example is UNGA Resolution 2625 (1970) ("Declaration
 Timor-Leste and Australia at the ICJ (2014): This case further illustrates the
on Principles of International Law concerning Friendly Relations and Co-operation
recognition of unilateral undertakings. Australia's Attorney-General provided a written
among States"), which the ICJ has repeatedly stated reflects customary international
unilateral undertaking regarding seized documents relevant to an arbitration with Timor-
law.
Leste. The ICJ took note of this undertaking, presumed Australia's good faith in complying,
o Crystallization or Emergence of Custom: Resolutions can also contribute to
and considered it a "significant contribution towards mitigating the imminent risk of
the development of new customary rules. They can express a collective opinio
irreparable prejudice" to Timor-Leste's rights, even though it did not entirely remove the risk,
juris (legal conviction of States) and encourage State practice, thereby helping to bring
leading the Court to order provisional measures.
about new customary norms. For instance, Resolution 1514 (1960) on decolonization,
while perhaps not fully declaratory of existing custom at the time of its adoption,
significantly contributed to the emergence of the right to self-determination as a
customary international law principle, as later affirmed by the ICJ in the Chagos
Unilateral Acts of International Organizations Archipelago Advisory Opinion (2019).
 Assessing Normative Value: To determine if a UNGA resolution reflects or contributes to
International organizations (IOs) can also adopt unilateral acts, often referred to as "secondary customary law, one must examine:
legislation" or "internal rules" of the organization. o Its content and wording (e.g., use of "must" vs. "encourages").
o The conditions of its adoption (e.g., unanimous or near-unanimous vote vs. deep
divisions).
 Principle of Speciality and Conferral: IOs operate under the principles of speciality and
o The existence of opinio juris regarding its normative character among States.
conferral; their powers are limited to those explicitly or implicitly granted by their member
o A series of resolutions on a topic may indicate the gradual evolution of opinio juris
States through their founding instruments.
and the formation of a new rule.
 Source of Authority: The legal effect of an IO's unilateral acts is determined by its basic
instrument (founding treaty). Member States, by consenting to the founding treaty,
consent to the possibility of the organization taking binding measures as specified therein.
 Hierarchy and Validity:
1. Subordination: Unilateral acts of IOs are subordinate to and derive from This analysis clarifies that while agreement remains fundamental, unilateral acts of States and
their basic instrument. Their validity depends on their conformity with the rules international organizations can also generate international legal obligations, with varying degrees of
and procedures for adoption set out in that instrument. Non-conforming acts are direct legal force depending on their context and the intent behind them.
considered null and void. Some IOs have courts (e.g., European Court of Justice for
the EU) to adjudicate on the validity of such acts.
This text introduces the concept of "soft law" in international law, discussing its ambiguous nature  The Dispute: Argentina argued the mill was not BAT-compliant and lacked tertiary
and its relationship with binding "hard law." It also provides a practical example from the ICJ Pulp treatment, while Uruguay contended its mill used BAT and complied with European Union
Mills case. standards.
 Court's Approach (Paras. 223-225):
o The Court noted that the obligation to prevent pollution and protect the aquatic
environment, and the exercise of due diligence implied in it, required careful
Soft Law consideration of technology.
o Crucially, the Court highlighted that Article 41(a) of the 1975 Statute (the binding
treaty) specifically provided that the regulatory framework adopted by the Parties had
Definition and Ambiguity: to be "in keeping with the guidelines and recommendations of international
technical bodies."
 "Soft law" is a term coined to describe a wide range of instruments and documents that o The Court then referenced the "Integrated Pollution Prevention and Control
are adopted by various actors and carry a certain normative weight or influence, but Reference Document on Best Available Techniques in the Pulp and Paper
whose legal status is unclear or not strictly binding. Industry of the European Commission (IPPC-BAT)" as the "industry standard
 Examples include technical standards, informal decisions by influential groups, or action in this sector," to which both Parties referred.
plans from international conferences. These documents are often complied with and used as o Based on this IPPC-BAT document, the Court found no evidence that the pulp mill
governance tools, even if not legally binding sensu stricto. was not BAT-compliant in terms of effluent discharges.
 The term "soft law" is ambiguous because it suggests different "degrees" of law (hard vs.
soft), which can undermine the fundamental characteristic of law: its bindingness. The "Additional Legal Element" Explained:
 The author argues that legal obligations, while varied (e.g., obligations of means vs. obligations
of result), are either equally binding or not binding at all. There's no "in-between" for The reason the ICJ had no difficulty using the IPPC-BAT document, even though it's a non-binding
legal command. "soft law" technical standard, is precisely the "referral clause" in the 1975 Uruguay River
Statute (the binding treaty).
Distinguishing Non-Binding from Potentially Binding:
 The treaty itself (a "hard law" instrument) explicitly incorporated or mandated
 Clearly Non-Binding: reference to "guidelines and recommendations of international technical
o Documents drafted by entities with no authority to make law (e.g., professional bodies."
associations issuing technical standards).  Therefore, while the IPPC-BAT document itself is "soft law," it became legally relevant and
o Documents where drafters, even if possessing some authority, clearly have no authoritative because a pre-existing, binding treaty obligation (hard law) directed the parties
intention to bind themselves (e.g., gentlemen's agreements, G8 statements, world (and thus the Court) to consider such standards for assessing compliance. It's not that the
conference action plans). These are political or policy documents, not legal ones. IPPC-BAT became legally binding as a source of law, but rather that its content became legally
 Presumption of Non-Legality: For legal certainty, it should be presumed that pertinent for the interpretation and application of a binding treaty obligation.
international law arises through formal, established processes (treaties, customary law,
general principles, unilateral acts of States/IOs where authorized). Any other process is  Who is bound?
presumed not to create new international law rules, "unless otherwise established."
 Customary international law generally binds all states and relevant international
Indirect Legal Bearing of Soft Law: organizations, with exceptions for persistent objectors or regional/local customs. It's jus
dispositivum (can be overridden by treaty) unless it's jus cogens (peremptory norms, which
 Despite not being directly binding, "soft law" instruments can have an indirect legal render conflicting treaties void).
bearing. They can serve as benchmarks or evidence for assessing compliance with actual  General principles of law also bind all states and are jus dispositivum, filling gaps where
legal obligations. custom or treaties don't apply.
 Example: Riparian States and Pollution Prevention: If a treaty obliges riparian states  Unilateral acts of states or international organizations bind only their authors (for
to prevent river pollution using "best available technologies," non-binding "industry states) or the organization and its members (for organizations), under specified conditions.
standards" for these technologies would be crucial for determining whether the legal Some organizational acts can also bind individuals or corporations (e.g., EU secondary
obligation has been met. While these standards are not "legally binding as such," they are legislation, UN Security Council Resolutions).
essential for interpreting and applying the binding treaty obligation.
 Treaties: The core principle is pacta sunt servanda (agreements must be kept), meaning
treaties bind their parties in good faith from entry into force. Provisional application is possible. States
cannot use internal law as an excuse for non-performance, except in cases of a manifest breach of
Reading: ICJ Pulp Mills on the River Uruguay Case (2010) domestic law regarding treaty-making competence.

This case provides a concrete illustration of how "soft law" can be indirectly relevant in legal disputes.  Temporal scope: Treaties are generally non-retroactive, applying to future acts unless
explicitly stated otherwise.
 Background: Argentina alleged that Uruguay failed to prevent pollution by its pulp mill,  Spatial scope: Treaties typically bind parties across their entire territory, though
specifically by not requiring the mill to employ "best available techniques" (BAT), as required exceptions can be specified.
by Article 41(a) of the 1975 Uruguay River Statute (which incorporated provisions from the  Personal scope: Treaties generally only create rights and obligations for their parties
POPs Convention by a "referral clause"). (relative effect or privity of contracts). However, a treaty can confer a right on a non-party
(presumed consent) or impose an obligation (requires express written consent). Treaty
 provisions can also reflect existing customary international law, binding non-parties as  Strict Conditions: The application of rebus sic stantibus is highly restrictive. It only applies
custom. if:
1. The changed circumstances were unforeseen by the parties.
 Most-Favoured-Nation (MFN) principle: This principle, central to international trade 2. The existence of those circumstances was an essential basis of the parties'
agreements (like WTO agreements), ensures that any trade advantage granted to one country is consent to be bound by the treaty.
automatically extended to all other countries with MFN status. It's a tool for non-discrimination and is 3. The effect of the change radically transforms the extent of remaining
rooted in the treaty between the MFN parties, not the third-party agreement. obligations.
 Exceptions: It cannot be invoked if the treaty establishes a boundary or if the change is a
 Termination, Withdrawal, and Suspension of Treaties: These actions release parties from result of a breach by the party invoking it.
treaty obligations.  Gabčíkovo-Nagymaros Project case (Hungary/Slovakia): The International Court of
Justice (ICJ) addressed this principle in the context of a dispute over a dam project on the
Danube. Hungary argued for termination based on profound political changes, diminishing
 Suspension is temporary, allowing parties to temporarily cease performance while the treaty
economic viability, and new environmental concerns.
remains in force. Parties must avoid obstructing the treaty's resumption.
o The ICJ, while recognizing Article 62 as largely codifying customary law, rejected
 Grounds for termination or suspension are limited by the Vienna Convention. Two key Hungary's claim. It found that the political and economic changes were not so
grounds are highlighted: closely linked to the treaty's object and purpose as to be an "essential basis of
o Material breach (inadimplenti non est adimplendum): A party's serious consent," nor did they "radically alter" the obligations. Furthermore, it stated that new
breach of a treaty can entitle other parties to terminate or suspend it. This principle, environmental knowledge was not "completely unforeseen" given clauses in the treaty
codified in Article 60 of the Vienna Convention, is common in contract law and designed to accommodate change.
is based on reciprocity. A "material breach" involves repudiation of the treaty or o The ICJ emphasized that the plea of fundamental change of circumstances should be
violation of an essential provision. Different rules apply to bilateral and multilateral applied only in exceptional cases to maintain the stability of treaty relations.
treaties, with specific provisions for "specially affected" parties and "interdependent"
obligations (e.g., disarmament treaties). Importantly, this right to terminate or
suspend does not apply to provisions in humanitarian treaties protecting This text focuses on the crucial aspect of interpreting international law, particularly treaties,
individuals, preventing reprisals. highlighting that interpretation is an inherent and essential part of applying legal rules.
o Fundamental change of circumstances (rebus sic stantibus): This less-used
ground, addressed in Article 62 of the Vienna Convention, considers whether General Principles of Interpretation:
radically changed circumstances can justify non-performance if performing the treaty
becomes much more onerous or no longer makes sense as originally intended.  Law is words: Interpretation is about assigning meaning to legal texts.
 Contextual and Fact-Dependent: Interpretation is not abstract; it always involves
EU Conditionality: applying a rule to specific facts. The goal is to determine if given facts fall within the rule's
scope.
The Cotonou Agreement (2000) between the European Community/EU and the African, Caribbean  Subjectivity and Justification: Interpretation isn't a natural science; multiple credible
and Pacific (ACP) States serves as a prime example of "conditionality." This voluminous treaty aimed interpretations are often possible. The choice between them, influenced by preferences outside
at poverty reduction and integrating ACP states into the global economy, with a significant political the strict legal text, must be reasoned and justified using established interpretive rules.
dimension.  Social Practice: Interpretation is a professional practice shaped by legal training and
collective judgment, with "convincing" interpretations being those widely shared and
 "Essential Elements": A key feature of the Cotonou Agreement is the designation of considered sensible within the legal community.
"respect for human rights, democratic principles and the rule of law" as "essential elements."  "Constructive Ambiguities" in Treaties: Treaties, being products of compromise, often
Good governance, specifically addressing serious cases of corruption, is termed a contain deliberate ambiguities to facilitate agreement, making interpretation especially vital in
"fundamental element." international law.
 Non-compliance Measures: The Agreement outlines a procedure for non-compliance with  Historical vs. Teleological Approach: A fundamental tension exists in interpretation:
these essential elements. This involves preliminary consultations to find a solution. If no should it focus on the original intent of the drafters (backward-looking/historical) or on the
acceptable solution is found, "appropriate measures" (proportionate and in accordance with rule's purpose and what it aims to achieve today (forward-looking/teleological)? While judges
international law) can be taken unilaterally, with suspension of the Agreement as a last are often seen as applying existing law, practical application requires adapting rules to
resort. "Cases of special urgency" (particularly serious and flagrant violations) allow for unforeseen circumstances.
immediate measures.
 Legal Basis: While the EU has framed this mechanism as an application of the customary Rules on Treaty Interpretation (Vienna Convention on the Law of Treaties - VCLT):
principle inadimplenti non est adimplendum (a party's breach allows the other to not
perform), the text argues that such a specific, treaty-based mechanism supersedes the need to The primary rules for treaty interpretation are found in Articles 31 and 32 of the VCLT.
rely on the general customary principle (codified in Article 60 of the Vienna Convention). The
"essential elements" clause itself makes non-compliance a violation under the treaty, despite  Balance of Approaches: Articles 31 and 32 strike a balance between the historical and
the Agreement not being a human rights treaty in its direct obligations. The legality of this teleological approaches.
conditionality is affirmed by pacta sunt servanda (agreements must be kept).
 Influence beyond Treaties: Though specifically for treaties, these articles influence the
interpretation of other international law sources due to their unique existence.
Rebus Sic Stantibus (Fundamental Change of Circumstances):  Customary International Law: It is undisputed that Articles 31 and 32 reflect customary
international law, meaning they apply even to treaties concluded before the VCLT's entry
This principle, codified in Article 62 of the Vienna Convention on the Law of Treaties, allows into force or to states not party to the VCLT (as affirmed by the ICJ in the Kasikili/Sedudu
for the termination or withdrawal from a treaty (or its suspension) if a fundamental, unforeseen Island case).
change in circumstances radically transforms the extent of obligations to be performed.
Article 31 - General Rule of Interpretation: Nicaragua) (2009). The core of the dispute revolved around the meaning of the Spanish phrase "con
objetos de comercio" in an 1858 treaty, which defined Costa Rica's navigation rights on the San Juan
This is the paramount rule, emphasizing an "objective" reading of the treaty. River.

 Good Faith, Ordinary Meaning, Context, Object & Purpose (Paragraph 1): Treaties
must be interpreted "in good faith in accordance with the ordinary meaning to be given to the
terms of the treaty in their context and in the light of its object and purpose." Key Interpretive Challenges and the ICJ's Approach
o "Ordinary Meaning": Contrasts with "special meaning" (para. 4), which must be
proven. 1. Ambiguity of "con objetos de comercio":
o "Context" and "Object and Purpose": Terms must be interpreted within their o Nicaragua's view: "with articles of trade" (concrete, material objects), limiting
place in the treaty, reflecting their intended utility. This is linked to the principle of navigation to goods for commercial sale.
"effectiveness" or "effet utile" (giving full effect to treaty terms), a fundamental o Costa Rica's view: "for the purposes of commerce" (abstract, ends/purposes),
principle affirmed by the ICJ. encompassing broader commercial activities including passenger and tourist
 Elements of Context (Paragraph 2): Includes the treaty's text (preamble, annexes), and transport.
any related agreements or instruments made by all parties or accepted by others in connection 2. Preliminary Observations by the ICJ:
with the treaty's conclusion (e.g., declarations in a Final Act). o Applicability of VCLT Articles 31 & 32: The Court reaffirmed that these articles,
 Subsequent Elements (Paragraph 3): reflecting customary international law, are applicable even though Nicaragua was
o (a) Subsequent Agreement: Any later agreement between parties regarding not a party to the VCLT and the treaty predated it.
interpretation or application. o Rejection of Restrictive Interpretation: Nicaragua argued for a narrow
o (b) Subsequent Practice: Consistent practice in applying the treaty that establishes interpretation because Costa Rica's right limited Nicaragua's sovereignty. The ICJ
the parties' agreement on its interpretation. A famous example is the UN Security explicitly rejected this, stating that limitations on sovereignty should not be
Council's practice of interpreting Article 27(3) of the UN Charter, where abstentions presumed, but treaty provisions, even those limiting sovereignty, must be
by permanent members do not prevent resolution adoption, despite the literal text interpreted like any other: according to the intentions of their authors as
requiring "concurring votes" (ICJ, Namibia Advisory Opinion). This demonstrates reflected in the text and other relevant factors. The Court found no hierarchy
that subsequent practice can establish the correct interpretation even if it seemingly intended between Nicaragua's sovereignty and Costa Rica's "perpetual" right.
contradicts the "black-letter" text. o Previous Decisions Not Conclusive: The Court found prior arbitral awards
o (c) Relevant Rules of International Law (Systemic Integration): (Cleveland Award, Central American Court of Justice) unconvincing for either party's
Interpretation must also consider "any relevant rules of international law applicable in specific arguments.
the relations between the parties." This promotes "systemic integration," ensuring 3. Interpreting "con objetos":
coherence and avoiding conflicts between international obligations. It allows for o The Spanish word "objetos" can have both concrete ("articles") and abstract
updating treaty commitments by integrating them into the broader legal system. ("purposes") meanings. The Court turned to contextual analysis.
o Coherence of the sentence: The Court found that only Costa Rica's abstract
Article 32 - Supplementary Means of Interpretation: interpretation ("for the purposes of") made the entire sentence "ya sea con Nicaragua
ó al interior de Costa Rica" (whether with Nicaragua or with the interior of Costa Rica)
coherent and comprehensible. Nicaragua's concrete interpretation rendered the
 Purpose: Allows recourse to supplementary means (e.g., travaux préparatoires -
subsequent clause meaningless. This demonstrated a strong reliance on the principle
preparatory work, circumstances of conclusion) to confirm the meaning derived from Article
of effectiveness (effet utile).
31, or to determine the meaning when Article 31 leaves it "ambiguous or obscure" or leads
o Supporting Arguments:
to "manifestly absurd or unreasonable" results.
 Use of "objetos" elsewhere in the treaty (Article VIII): In Article VIII,
"objetos" clearly had an abstract meaning ("purposes" or "subjects"),
Article 33 - Interpretation of Treaties Authenticated in Two or More Languages: suggesting the parties were familiar with this usage in their treaty practice.
 Comparison with a preceding unratified treaty (Cañas-Martinez
 Equal Authority: When a treaty exists in multiple authentic languages, all texts are equally Peace Treaty, 1857): This earlier draft used "artículos de comercio"
authoritative unless specified otherwise. (articles/goods of commerce), indicating that when the parties wanted to refer
 Presumption of Same Meaning: Terms are presumed to have the same meaning across all to physical goods, they used an unambiguous term. The switch to "objetos de
authentic texts. comercio" in the 1858 treaty implied a different, broader intent.
 Reconciling Differences: If Articles 31 and 32 don't resolve differences in meaning  Subsequent Practice (1887 English translations): Both parties,
between authentic texts, the interpretation that "best reconciles the texts, having regard to the independently, submitted translations to President Cleveland that rendered
object and purpose of the treaty," is adopted. "con objetos de comercio" as "for the purposes of commerce." Although not
conclusive alone, this "concurrence" relatively soon after the treaty's
Rejection of Restrictive Interpretation: conclusion was a "significant indication" of their original understanding.
4. Interpreting "commerce" (Generic Terms and Evolving Meaning):
o Nicaragua's view: Limited to trade in physical goods, reflecting the meaning of
The VCLT does not advocate for a restrictive interpretation of treaties, despite some historical judicial "commerce" in 1858, and excluding services like passenger transport. Argued for a
tendencies (e.g., PCIJ in Wimbledon case) to interpret treaties narrowly as restrictions on state historical interpretation based on original intent.
sovereignty. Modern international law, as evidenced by the ICJ's stance, does not uphold a general o Costa Rica's view: Broad concept including any commercial activity, even
principle of restrictive interpretation. potentially non-profit, encompassing passenger and tourist transport, and public
officials providing essential services.
This text presents a detailed case study of treaty interpretation by the International Court of
Justice (ICJ) in the Dispute regarding Navigational and Related Rights (Costa Rica v.
 o ICJ's Rejection of Extremes: The Court rejected Costa Rica's overly broad  Evolution of Use: While initially underutilized, Article 31(3)(c) gained prominence, notably
interpretation (which would make the "for the purposes of commerce" clause in the European Court of Human Rights and, significantly, through the International Court of
redundant) and Nicaragua's excessively narrow one. Justice (ICJ).
o Evolving Meaning of Generic Terms: The Court acknowledged that while  Updating Treaties: This principle also allows for the "updating" of treaty commitments by
original intent is crucial, it doesn't always mean a fixed, historical meaning. It interpreting them in light of current international law.
introduced the concept of evolving meaning for generic terms in treaties of
"continuing duration": Case Studies Illustrating Systemic Integration:
 Subsequent practice (Article 31(3)(b) VCLT) can lead to a tacit agreement
on an evolved meaning.
 Parties might intend for terms to evolve over time, allowing for 1. Oil Platforms case (Iran v. USA, ICJ, 2003):
developments in international law, especially in treaties designed to be of o Dispute: Iran sued the US for destroying its offshore oil platforms, alleging a breach
"continuing duration" (e.g., peace treaties, territorial regimes). of the 1955 Treaty of Amity, Economic Relations and Consular Rights, specifically
 The Court cited its Aegean Sea Continental Shelf judgment, where it held that Article X(1) protecting "freedom of commerce and navigation."
"territorial status," as a generic term in a broad, continuing convention, was o US Defense: The US invoked Article XX(1)(d) of the Treaty, which allowed measures
intended to follow the evolution of the law. "necessary to protect its essential security interests," claiming its actions were justified
o Application to "comercio": self-defense. The US argued that the Court's jurisdiction was limited to the Treaty and
 "Comercio" is a generic term referring to a class of activity. did not extend to general international law on the use of force.
 The 1858 Treaty was of unlimited duration, intended to create a o ICJ's Ruling:
permanent legal regime (a "perpetual" right of navigation closely linked to the  The Court's task was to interpret Article XX(1)(d) of the Treaty. It held that
territorial settlement). when this article is invoked to justify actions involving armed force (allegedly
 Therefore, the terms, including "comercio," must be understood to have the in self-defense), the interpretation "will necessarily entail an
meaning they bear at the time the treaty is applied, not necessarily their assessment of the conditions of legitimate self-defence under
original meaning. international law."
o Conclusion: The right of free navigation applies to the transport of persons as well as  The Court emphasized that Article I of the Treaty (declaring "firm and
goods, provided the activity is commercial in nature (e.g., payment to a carrier, enduring peace and sincere friendship") was inconsistent with interpreting
including tourist transport). Navigation for governmental activities or non- Article XX(1)(d) to permit an unlawful use of force.
commercial public services is excluded.  Crucially, applying Article 31(3)(c) VCLT, the ICJ stated it "cannot accept that
Article XX, paragraph 1 (d), of the 1955 Treaty was intended to operate wholly
independently of the relevant rules of international law on the use of force."
 Thus, the Court's jurisdiction under the Treaty extended to determining if the
US actions constituted an unlawful use of force by reference to the UN
Summary of ICJ's Interpretive Methodology: Charter and customary international law on self-defense. This
demonstrates how a specific treaty provision is interpreted in light of broader,
The ICJ's judgment demonstrates a nuanced application of treaty interpretation principles, primarily fundamental rules of international law.
rooted in Article 31 of the VCLT. It prioritizes: 2. Iron Rhine Arbitration (Belgium v. Netherlands, PCA, 2005):
o Dispute: Belgium sought to reactivate a railway line (Iron Rhine Railway) through
Dutch territory, established by 19th-century treaties. The dispute arose over who
 Ordinary meaning in context: Examining how words fit into the overall sentence and
should bear costs associated with environmental protection laws that had developed
treaty.
since the treaties were concluded.
 Principle of effectiveness (effet utile): Giving meaning to all treaty provisions. o Tribunal's Ruling: The arbitral tribunal explicitly referred to Article 31(3)(c) VCLT.
 Subsequent practice: Considering how parties have understood and applied the treaty over It ruled that "international environmental law has relevance to the relations between
time. the Parties" and must be "taken into account in interpreting" the older treaties.
 Systemic integration: Interpreting the treaty within the broader framework of o "Updating" Treaties: This decision illustrates how systemic integration can
international law. "update" older treaty obligations by interpreting them in light of subsequently
 Evolving meaning for generic terms: Recognizing that for long-term treaties with generic developed general international law, such as environmental law, ensuring their
terms, the parties may have intended the meaning to adapt to contemporary understanding. continued relevance and coherence within the contemporary international legal
system.
While acknowledging the historical context, the Court ultimately favored an interpretation that allows
the treaty to remain relevant and effective in changing circumstances, particularly for generic terms in In essence, systemic integration, through Article 31(3)(c) of the VCLT, serves as a vital tool for
perpetual instruments. ensuring consistency and contemporaneity in the interpretation and application of international legal
obligations, preventing treaties from being interpreted in isolation from the evolving body of
This text elaborates on the principle of "systemic integration" in treaty interpretation, which is international law.
derived from Article 31(3)(c) of the Vienna Convention on the Law of Treaties (VCLT). This
article mandates that "any relevant rules of international law applicable in the relations between the This text addresses the complex issue of conflicting obligations in international law, particularly
parties" shall be considered when interpreting treaty provisions. when harmonious interpretation is not possible. It distinguishes between "fake" and "true" conflicts
and outlines rules for resolving genuine conflicts, especially between treaty obligations.
Key Points on Systemic Integration:
1. Avoiding "Fake" Conflicts:
 Purpose: Systemic integration aims to bring coherence and order to international law by
ensuring that treaty interpretations avoid conflicts with other international obligations. It The text first clarifies situations that are not considered true conflicts of obligations:
presumes that states act rationally and coherently.
  Treaty derogating from Customary Law: A treaty can override (derogate from) a general o Article 30(3) VCLT applies: "Lex posterior derogat priori" (the later law repeals the
customary international law rule between its parties. The customary rule still applies in earlier one).
relations with non-parties. Often, systemic integration helps accommodate both. o The later treaty prevails, and the earlier treaty applies only to the extent
 Void Treaty (due to jus cogens): If a treaty conflicts with a peremptory norm of general compatible with the later one.
international law (jus cogens), the treaty is void. Since no obligations exist under a void treaty, o This is a sensible solution, assuming states are aware of prior obligations when
there's no conflict of obligations. (The conflict is between the sources themselves). concluding new ones and intend to replace conflicting older ones. No risk of
 Successive Treaties with Identical Parties (completely incompatible): If all parties circumvention as all parties are bound.
to an earlier treaty also conclude a later treaty on the same subject, and the later treaty's  Successive Treaties NOT Binding on All the Same Parties (Complex Scenario):
provisions are entirely incompatible, the earlier treaty is terminated and replaced by the new o Article 30(4) VCLT provides a differentiated solution to protect the rights of states
one (Article 59 VCLT). No conflict exists because the old obligations are no longer owed. not party to the later treaty.
o Between parties bound by both treaties (e.g., A, B, C from an earlier treaty
2. True Conflicts of Obligations: with A, B, C, D, who then conclude a later treaty among themselves): The
later treaty prevails (Lex posterior) among A, B, and C.
o Between a state party to both treaties and a state party to only one (e.g., A
A true conflict arises when: vs. D from the example): The treaty to which both states are parties
governs their mutual rights and obligations. So, A and D are governed by the
 Several valid obligations are simultaneously owed by the same subject (State/IO). earlier treaty. D can demand A, B, or C perform the earlier treaty, even if it means A,
 These obligations cannot be performed at the same time (performing one entails B, or C breach the later treaty among themselves.
breaching another). o Unavoidable Responsibility: In this scenario, one or more states will inevitably
 These conflicts are less frequent but arise due to the decentralized nature of breach one of their treaty obligations. The VCLT (Article 30(5)) acknowledges this.
international law production. o Political Choice: The choice of which obligation to prefer becomes a political one
for the state, not dictated by pre-existing legal rules (e.g., based on the nature of the
3. Resolving True Conflicts (Hierarchical and Specific Rules): treaty like human rights vs. trade, or general vs. special character). The state will
weigh the consequences and costs (responsibility under international law) of
breaching one treaty versus another.
When harmonious interpretation is impossible and a true conflict exists, one obligation may prevail:
This text delves into the practical aspects of performing international obligations, distinguishing
 Hierarchical Supremacy (UN Charter): it from merely understanding their creation or interpretation. It acknowledges the difficulty of a
o Article 103 of the UN Charter explicitly states that obligations under the Charter general answer, emphasizing a case-by-case approach often highlighted during allegations of breach.
prevail over obligations under any other international agreement for UN Member
States.
o This grants the Charter (and obligations flowing from it, like Security Council 1. General Nature of Performance:
resolutions) hierarchical supremacy.
o No other treaty enjoys similar automatic supremacy, as it would undermine the very  Comparison to Prescribed Conduct: Performance is assessed by comparing a state's
concept. actual conduct with the conduct legally required by the international obligation.
o Article 30(1) VCLT acknowledges Article 103 of the UN Charter.  Diverse Forms of Conduct: International obligations can require acts or omissions,
 Treaty-Specified Preference Clauses (Subordination/Non-Impediment Clauses): legislative action, specific administrative measures, or even the provision of facilities or
o Article 30(2) VCLT allows a treaty to specify that it is "subject to, or that it is not to precautions.
be considered as incompatible with, an earlier or a later treaty."  No Universal Typology: The text stresses that there's no clear, authorized typology of
o Example: EU Treaties (Article 351 TFEU): Treaties concluded by EU Member international obligations with a specific regime attached to each, and treaty drafters retain
States with third states before joining the EU are generally unaffected by EU law. This freedom to define obligations.
means an EU Member State can prioritize a pre-accession treaty, even if it means
disobeying EU obligations. However, the Member State is also obligated to "take all 2. Key Distinctions in Obligations:
appropriate steps to eliminate the incompatibilities," which the European Court of
Justice has interpreted as requiring the termination of the pre-accession treaty if
Despite the lack of a universal typology, the text highlights two recurring distinctions:
legally possible.
o Example: Cotonou Agreement (Article 91): Declares that no other agreement
"may impede the implementation of this Agreement."  Obligations of Result:
o Example: NATO Treaty (Article 8): Member States undertake "not to enter into o Require a specific outcome to be achieved, either through action or abstention.
any international engagement in conflict with this Treaty," effectively serving as a o Action Example: Two states agreeing to build a dam on a common watercourse, or
conflict rule. dismantling specific weapons. The thing must be done.
o In these cases, the prevailing obligation is explicitly determined by the treaty itself. o Abstention Example: Prohibition on the use of force, or the prohibition of torture.
The state must not perform the prohibited act.
4. Resolving Conflicts without Specific Rules (Lex Posterior and Parties Involved):  Obligations of Conduct (or Due Diligence):
o Require a certain behavior or effort, rather than a guaranteed result.
o Example: Obligation to take "all necessary measures" to prevent pollution abroad.
When no explicit conflict rule exists in the treaties, the crucial distinction is whether the successive The state must act with "due diligence," meaning it exerts its best efforts. Pollution
conflicting treaties are binding on all the same parties or not. occurring does not automatically mean a breach if due diligence was exercised.
o Example: States' obligation to exercise administrative controls over fishing vessels
 Successive Treaties Binding on All the Same Parties: flying their flag to prevent illegal, unreported, and unregulated (IUU) fishing. The
 International Tribunal for the Law of the Sea (ITLOS) confirmed this as an obligation o Responsibility is incurred if the State "manifestly failed to take all
of due diligence. measures to prevent genocide which were within its power, and which
o Obligations to prevent (e.g., pollution, genocide): These are obligations of might have contributed to preventing the genocide." This requires an in
conduct. A breach occurs only if the outcome to be prevented occurs and the state concreto (case-by-case) assessment of "due diligence."
failed to meet the standard of due diligence. o Parameters for assessing due diligence:
o ICJ in Bosnia-Herzegovina v. Serbia (Genocide case): Responsibility for  Capacity to influence: This varies based on geographical distance, political,
breaching the obligation to prevent genocide arises "if the State manifestly failed to military, and financial links, and legal position vis-à-vis those committing or
take all measures to prevent genocide which were within its power, and which might likely to commit genocide.
have contributed to preventing the genocide." The standard is an in concreto (case-by-  Irrelevance of certainty of prevention: A State cannot argue it would
case) assessment of due diligence. have failed even if it had acted with due diligence. The combined efforts of
multiple States, each fulfilling their obligation, might have prevented the
3. Human Rights Obligations (Respect, Protect, Fulfill): genocide.
3. Breach Occurs Only if Genocide is Committed:
o A State can only be held responsible for breaching the obligation to prevent if
The text briefly introduces the common categorization of human rights obligations for states parties to
genocide was actually committed. The breach occurs when the prohibited act
human rights treaties:
begins and continues as long as the act continues.
o However, the duty to act (to prevent) arises earlier: "at the instant that the State learns
 Obligation to Respect: States must refrain from interfering with or curtailing human of, or should normally have learned of, the existence of a serious risk that genocide
rights enjoyment (often an obligation of result, requiring negative action/abstention). will be committed." If no genocide occurs, no responsibility arises a posteriori for
 Obligation to Protect: States must protect individuals and groups against human failing to act.
rights abuses (requiring positive action with due diligence). 4. Distinction from Complicity in Genocide:
 Obligation to Fulfill: States must take positive action to facilitate the enjoyment of o Violation of Prevention (Omission): Results from a mere failure to adopt and
basic human rights (requiring positive action with due diligence). implement suitable measures. It is a positive obligation to do one's best to
prevent.
4. Role of Domestic Law: o Complicity in Genocide (Commission): Requires a positive action to aid or
assist perpetrators, with full knowledge that genocide was about to be committed or
was underway.
 States often need to enact domestic legislation to comply with their international
o For prevention, mere awareness of a serious danger is sufficient for
obligations.
responsibility if the State fails to act. For complicity, certainty or specific knowledge of
 Sometimes, specific domestic legislation is a required result of the international obligation the ongoing or imminent genocide is required.
itself (e.g., criminalizing terrorism financing).
5. Application to Serbia's Conduct:
 More generally, enacting domestic law is a necessary step to ensure the fulfillment and due o The Court found that the FRY had undeniable influence over Bosnian Serb militias
performance of the international obligation. (due to strong political, military, and financial links), unlike other states.
o The FRY was also bound by the ICJ's 1993 provisional measures orders, which
The text sets the stage for a deeper dive into the relationship between international and domestic law required it to ensure its controlled or influenced units did not commit genocide.
in the next section. o Despite not having certain knowledge of the Srebrenica genocide's imminence (thus
no complicity), the FRY authorities "could hardly have been unaware of the serious
The question of what is required to perform international obligations is complex and context- risk of it once the VRS forces had decided to occupy the Srebrenica enclave."
dependent. The International Court of Justice (ICJ) judgment in the 2007 Bosnia and Evidence included warnings from EU negotiators and General Wesley Clark's
Herzegovina v. Serbia and Montenegro (Genocide Convention) case provides a robust testimony about Milošević's awareness of the dangers.
example of how the Court interprets and applies the performance requirements of international o The Court concluded that the FRY leadership "should... have made the best efforts
obligations, specifically focusing on the obligations to prevent genocide and to punish genocide within their power to try and prevent the tragic events" and "did nothing to prevent
under the 1948 Genocide Convention. the Srebrenica massacres." This failure engaged its international responsibility.

The Obligation to Prevent Genocide (Article I) The Obligation to Punish Genocide (Article I and VI)

The ICJ found Serbia (then the Federal Republic of Yugoslavia, FRY) responsible for violating its The ICJ also found Serbia responsible for violating its obligation to punish genocide.
obligation to prevent genocide. Here's a breakdown of the Court's reasoning regarding the nature and
requirements of this obligation: 1. Territorial Jurisdiction (Article VI):
o Article VI obliges Contracting Parties to try persons charged with genocide "by a
1. Distinct and Compelling Obligation: competent tribunal of the State in the territory of which the act was committed."
o The Court clarified that the obligation to prevent genocide has a "separate legal o Since the Srebrenica genocide occurred outside FRY territory, Serbia was not
existence of its own" and is not merely absorbed by the duty to punish or limited to obligated to try the perpetrators in its own domestic courts under Article VI, even if
calling upon UN organs (Article VIII). It is "both normative and compelling." its law permitted it. Article VI primarily imposes territorial criminal jurisdiction.
2. Obligation of Conduct, Not Result (Due Diligence): 2. Cooperation with an International Penal Tribunal (Article VI):
o The obligation to prevent is one of conduct, meaning a State is not obligated to o Article VI also provides for trial "by such international penal tribunal as may have
succeed in preventing genocide at all costs. Instead, it must "employ all means jurisdiction with respect to those Contracting Parties which shall have accepted its
reasonably available to them, so as to prevent genocide so far as possible." jurisdiction."
 o ICTY as an "International Penal Tribunal": The Court affirmatively ruled that
the ICTY (International Criminal Tribunal for the former Yugoslavia), despite being
created by a Security Council resolution rather than a treaty, qualified as an 2. Relationship from the Perspective of Domestic Law
"international penal tribunal" under Article VI. A restrictive interpretation would
contradict the Convention's object.
o "Accepted its jurisdiction": Serbia was obliged to cooperate with the ICTY  International Law as "Law": From a State's domestic perspective, international law is law,
primarily based on the Dayton Agreement (1995), which explicitly mandated full because States actively participate in its creation.
cooperation with the ICTY. Its later admission to the UN (2000) further confirmed  Monism vs. Dualism: Two primary theoretical approaches describe how international law
this obligation. integrates into domestic legal orders:
o Failure to Cooperate: The Court found that Serbia failed to fully cooperate o Monism: Views international and domestic law as forming a single, unified legal
with the ICTY, particularly by not arresting and handing over individuals order. International law is automatically part of domestic law and (typically) prevails
accused of genocide (like General Mladic) who were on its territory. Evidence, in case of conflict.
including statements from Serbian officials, indicated awareness of Mladic's presence o Dualism: Views international law and domestic law as distinct and separate legal
and a failure to act. orders. International law only "penetrates" domestic law (and interacts with it)
o This failure constituted a violation of Serbia's obligations under the Dayton according to conditions laid out in domestic law itself (e.g., requiring an implementing
Agreement, as a UN Member State, and consequently, a violation of its act).
obligations under Article VI of the Genocide Convention.  Reality is Mixed: Pure monist or dualist states are rare. Most states exhibit elements of
both:
o Example (Belgium - generally monist): Treaties need parliamentary approval to
have domestic legal effect, an element of dualism. Without approval, a ratified treaty is
internationally binding but not domestically applicable.
In summary, the ICJ's judgment in the Genocide case meticulously dissected what it means for a State o Example (United Kingdom - traditionally dualist): Customary international
to perform its international obligations. It underscored that the obligation to prevent is one of due law is generally considered "part of the law of the land," an element of monism.
diligence requiring reasonable efforts, and that the obligation to punish, especially in the context of an  State Sovereignty: International law does not compel States to adopt either a monist or
international tribunal, necessitates active cooperation, including the arrest and transfer of accused dualist approach. States are entirely free to choose their constitutional arrangements for
individuals. These findings highlight the robust and multifaceted nature of international obligations integrating international law.
and the rigorous standards applied by international courts in assessing their performance.  Consequences of Choice:
o A more monist approach (especially with international law primacy) statistically
This comprehensive text explores the intricate relationship between international law and domestic reduces the likelihood of a State being found in breach of international law.
law, differentiating between how this relationship is viewed from the international perspective versus o A dualist approach, while permissible under international law, means a State might
the domestic perspective. It then delves into the crucial concept of direct effect (self-executing more often be found responsible internationally for breaches, as its domestic law
treaties). might not automatically align with its international obligations. A State's preference
for its constitution or laws to prevail over international commitments is acceptable
from a domestic standpoint, but internationally, it offers no excuse for non-
performance.
1. Relationship from the Perspective of International Law

 Domestic Law as a "Fact": From the standpoint of international law, municipal (domestic)
law is regarded as a fact. This means: 3. Direct Effect of Treaties (Self-Executing Treaties)
o A State cannot invoke its domestic law (including its constitution) as a
justification for its failure to perform its international obligations (Article 27 VCLT).  Constitutional Requirements: Each State has domestic (often constitutional) rules
The only exception is a fundamental defect of consent under Article 46 VCLT. governing treaty-making, ratification, and entry into the domestic legal order. International
o International law does not deny the legal nature of domestic law, but its only concern law does not govern these internal processes.
is whether domestic law conforms to a State's international obligations.  Implementation vs. Self-Execution: Once a treaty is duly ratified and constitutional
o If domestic law conflicts with international obligations, the State is in breach of its requirements are met, the State must implement it. This may or may not require enacting
international obligations, but the domestic law itself remains valid within the domestic legislation.
domestic legal order.  Self-Executing / Direct Effect / Directly Applicable: These terms are used
o It's a "misnomer" to say international law "prevails" over domestic law from this synonymously to describe treaties or treaty provisions that, once properly incorporated into
perspective, because domestic law has no normative status in international law (it's domestic law, can be directly applied by domestic courts and relied upon by individuals
not a source of international law, except when a general principle of law is derived without the need for further implementing legislation.
from comparative domestic legal systems, but then it becomes an international rule).  PCIJ in Jurisdiction of the Courts of Danzig (1928 Advisory Opinion): This seminal
 PCIJ in German Interests in Polish Upper Silesia (1926): Famously stated that case established the concept of direct effect:
"municipal laws are merely facts which express the will and constitute the activities of States." o Issue: Danzig railway officials claimed rights against Polish railways based on an
The Court's role is not to interpret domestic law as such, but to determine if a State's agreement between the Free City of Danzig and Poland. Poland argued the agreement
application of its domestic law conforms to its international obligations. only created rights between states, and individual rights required implementing Polish
 References to Domestic Law by International Courts: While domestic law is a "fact," legislation.
international courts sometimes need to refer to it as a preliminary question to resolve issues of o Court's Reasoning:
international law (e.g., determining nationality for an investment treaty claim, or verifying the  While treaties generally create rights/obligations between contracting
official status of an agent for State responsibility). parties, parties "may very well establish definite rules creating individual
rights and obligations."
  The key is the "intention of the contracting Parties," discerned from the 2. Possibility of Counter-measures: In a decentralized legal order, the injured State
"terms of the agreement" and its "object." can take certain measures (counter-measures) to protect itself and pressure the
 The Court found that the provisions of the Beamtenabkommen were "directly responsible State. This is akin to the "sanctioning" or "criminal" side, though the
applicable as between the [Danzig] officials and the [Polish railways] analogy is not perfect.
Administration."
o Criteria for Direct Effect (from this case):

1. Object of the Treaty: Does it concern individuals? 2. The Internationally Wrongful Act (ARSIWA Articles 1, 2, 3)
2. Intention of Parties: Was it their intention to create direct
rights/obligations for individuals without further implementation?
3. Terms of the Treaty: Are the terms "sufficiently clear, precise and  Article 1: Core Principle: "Every internationally wrongful act of a State entails the
unconditional"? If so, the provision is considered "self-sufficient" or "self- international responsibility of that State."
executing." o Responsibility is triggered only by an internationally wrongful act.
o Example: "The death penalty is abolished" (self-executing) vs. "The High Contracting o No need for injury: Responsibility exists even if the wrongful act does not result in
parties will take the necessary measures to abolish the death penalty..." (requires a tangible injury.
implementation). o Objective Responsibility: It results from conduct objectively contrary to an
international obligation, "irrespective of any fault being committed."
 Direct Effect vs. Internal Effectiveness:
o Direct Effect is a matter of international law (interpretation of the treaty and  Article 2: Elements of an Internationally Wrongful Act: An internationally wrongful
parties' intent). act consists of two elements:
o Internal Effectiveness (or domestic applicability) is a matter of domestic law
(whether the treaty has properly entered the domestic legal order via constitutional 1. Objective Element (Breach): Conduct (action or omission) is "not in conformity
procedures). with" an international obligation.
o A treaty can have direct effect only if it has been duly incorporated into the domestic 2. Subjective Element (Attribution): The conduct "is attributable to the State under
legal order. international law." (Attribution is critical because States act through human beings).
 Importance: Direct effect is crucial, particularly in human rights and EU law. In some legal  Article 3: Irrelevance of Domestic Law:
systems, the primacy of international law over domestic law is conditioned upon o "The characterization of an act of a State as internationally wrongful is governed by
the direct effect of the treaty provision. international law."
o "Such characterization is not affected by the characterization of the same act as lawful
The text concludes by highlighting that while the decision on direct effect is an international law issue, by internal law."
its practical application within a State depends on that State's constitutional framework for o This reaffirms the axiomatic principle that a State cannot rely on its internal law to
incorporating international law. escape international obligations. The ICJ in the US v. Italy case (ELSI) stated:
"Compliance with municipal law and compliance with the provisions of a treaty are
different questions."
This text introduces the crucial concept of international responsibility, focusing on the
consequences of breaching international obligations. It explains the theoretical foundations,
the key elements of an internationally wrongful act, and the temporal aspects of a breach, primarily
drawing from the International Law Commission's (ILC) Articles on State Responsibility for
Internationally Wrongful Acts (ARSIWA). 3. The Objective Element: Breach of an International Obligation (ARSIWA Articles 12-
15)

This section details what constitutes a breach of an international obligation, focusing on its temporal
1. The Notion of Responsibility in International Law aspects.

 Definition: Responsibility arises when a legal subject's conduct does not conform to what is  Article 12: General Rule of Breach: "There is a breach of an international obligation by a
required by law. It ensures that breaches of obligations are not left without legal consequences, State when an act of that State is not in conformity with what is required of it by that
protecting the integrity of the legal order and the victim. obligation, regardless of its origin or character."
o "Regardless of its origin": The source of the obligation (treaty, custom, general
 "Secondary Rules": Rules on international responsibility are "secondary rules." They are
principle, unilateral act) does not matter.
triggered when "primary rules" (substantive obligations derived from sources of international
o "Regardless of its character": The type of obligation (of result, of conduct, to
law like treaties or customary law) are breached.
prevent) does not matter for determining if there's a breach. The performance
 Codification (ARSIWA): The ARSIWA (2001), prepared by the ILC, largely reflect
requirements, however, vary (as discussed in the previous section on performing
customary international law on State responsibility. They were adopted by the UN General
international obligations).
Assembly without opposition and are widely considered authoritative.
 Article 13: Obligation Must Be in Force (Contemporaneity Principle): "An act of a
 Conceptual Foundation (Roberto Ago): The ARSIWA are largely built upon Roberto
State does not constitute a breach of an international obligation unless the State is bound by
Ago's concept of a unified regime of responsibility. This means:
the obligation in question at the time the act occurs."
o Responsibility automatically stems from any internationally wrongful act.
o This is the "contemporaneity principle" (from the Island of Palmas case): a
o All legal consequences form part of these secondary rules.
juridical fact is assessed by the law contemporary with it.
 Types of Legal Consequences (as per Ago): o International responsibility is not retroactive. If an act was not wrongful when
committed, it cannot become so later (e.g., slavery before its universal outlawing).
1. Substantive Obligation to Make Good the Injury: This is the "civil" or o Conversely, if an act was wrongful when committed, responsibility remains even if the
"tortious" side, requiring reparation for the harm caused. obligation later terminates ("incurred rights").
  Article 14: Extension in Time of a Breach: o (To be studied later in the course on the use of force).
o Instantaneous Breaches (Para. 1): Occur "at the moment when the act is 3. Countermeasures (Article 22):
performed, even if its effects continue." Examples: assassination, torture, destruction o Definition: An act not in conformity with an international obligation is precluded if
of property. it constitutes a countermeasure taken against another State that has already
o Continuing Breaches (Para. 2): "Extends over the entire period during which the committed an internationally wrongful act.
act continues and remains not in conformity with the international obligation." o Nature: A countermeasure is inherently a breach, but its wrongfulness is excused
Examples: continued occupation of territory, wrongful detention, failure to conduct a because it's a response to a prior breach and meets specific conditions.
judicial inquiry. o (To be studied later in the current week).
o Breach of Obligation to Prevent (Para. 3): "Occurs when the event occurs and 4. Force Majeure (Article 23):
extends over the entire period during which the event continues and remains not in o Definition: An act is precluded if it's due to an "irresistible force or of an unforeseen
conformity with that obligation." (As seen in the Genocide case, the duty to act arises event, beyond the control of the State, making it materially impossible in the
when there's a serious risk, but the breach itself is tied to the occurrence and circumstances to perform the obligation." (Nobody is expected to do the impossible).
continuation of the preventable event.) o Limitations (Para. 2): Cannot be invoked if:
 Article 15: Composite Acts:  The situation was caused (even partly) by the invoking State's conduct.
o Definition: A breach by a "series of actions or omissions defined in aggregate as  The State assumed the risk of the situation occurring.
wrongful." The breach occurs when the action/omission sufficient to constitute the o Example: An air force jet being involuntarily blown off course into foreign territory
wrongful act occurs. by unforeseen, irresistible winds. This differs from impossibility of performance as a
o Extension: The breach extends over the entire period of the series, as long as the ground for terminating a treaty (Article 61 VCLT); force majeure only excuses the act,
actions/omissions are repeated and remain non-conforming. not the obligation.
o Examples: Genocide, apartheid, crimes against humanity, systematic racial 5. Distress (Article 24):
discrimination, systematic discriminatory trade policies. The accumulation of o Definition: An act is precluded if the author of the act has "no other reasonable way,
individual acts forms the essence of the composite wrongful act. in a situation of distress, of saving the author’s life or the lives of other persons
entrusted to the author’s care."
This text focuses on circumstances precluding wrongfulness in international law, which act as o Key difference from Force Majeure: Compliance is materially possible, but it
defenses against claims of international responsibility, even when a State's conduct is objectively would be inhuman to require it (e.g., sacrificing lives).
contrary to an international obligation. It then briefly discusses related concepts like strict liability, o Limitations (Para. 2): Cannot be invoked if:
accountability, and collective responsibility.  The situation was caused (even partly) by the invoking State's conduct.
 The act is likely to create a comparable or greater peril.
o Example: An aircraft making an unauthorized landing on a foreign airstrip due to
engine failure, where crashing at sea was the only alternative for survival.
6. Necessity (Article 25):
Circumstances Precluding Wrongfulness (ARSIWA Articles 20-25) o Definition (Strict Conditions): This is the most controversial and strictly limited
circumstance. It can only be invoked if the act:
These six circumstances act as a "shield" for a State, meaning that while their conduct might otherwise  Is the only way for the State to safeguard an essential interest against a
be a breach, it does not give rise to international responsibility. They excuse the non-performance of grave and imminent peril.
an obligation; they do not terminate or annul the obligation itself.  Does not seriously impair an essential interest of the State(s) to whom the
obligation is owed, or of the international community as a whole.
General Conditions and Limitations (Article 27 & 26): o Exclusions (Para. 2): Cannot be invoked if:
 The international obligation excludes the possibility of invoking necessity.
 The State has contributed to the situation of necessity.
 Temporary: The excuse exists only as long as the circumstance subsists (Article 27(a)). o Characteristics (ILC Commentary): Exceptional, not dependent on prior conduct
Compliance is still owed when the circumstance ends. of injured State, not involuntary/coerced (unlike force majeure), relates to grave
 No Jus Cogens Violation: None of these circumstances preclude the wrongfulness of an act danger to State/international community's essential interests (unlike distress which is
that violates a peremptory norm of general international law (jus cogens) (Article about lives of individuals).
26). Jus cogens obligations are absolute and must be performed in all circumstances. o ICJ in Gabčíkovo-Nagymaros Project (1997): Confirmed these strict
 Compensation for Material Loss (Article 27(b)): The State invoking a precluding conditions reflect customary international law but found they were not met in that
circumstance may still agree to pay compensation for any material loss caused by its excused specific case.
act, even though it is not legally obligated to do so (payment would be ex gratia). o Example: The British government bombing the stranded Torrey Canyon oil tanker
outside its territorial waters to prevent massive environmental disaster on its
The Six Circumstances: coastline.

1. Consent (Article 20):

o Definition: Valid consent given by a State to another State for the commission of a
specific act precludes the wrongfulness of that act in relation to the consenting State, Other Related Concepts
provided the act stays within the limits of the consent.
o Requirements: Consent must be valid (not defective), expressed by an authorized
 Responsibility without Breach ("Strict Liability" / "Absolute Liability"):
person, and freely given. The act must not exceed the scope of the consent.
o Customary international law generally requires an internationally wrongful act for
o Example: A State consenting to foreign troops on its territory for a specific purpose.
responsibility.
2. Self-Defence (Article 21):
o However, treaties can create regimes where a State is obligated to make good damage
o Definition: The wrongfulness of an act is precluded if it constitutes a lawful measure
from certain lawful but dangerous activities.
of self-defence taken in conformity with the UN Charter.
 o Requires proof of damage, not malconduct. 4. Ultra Vires Acts (Article 7):
o Example: The 1972 Convention on International Liability for Damage Caused by o Rule: The conduct of a State organ or a person/entity exercising governmental
Space Objects, where the launching State is strictly liable for damage caused by space authority is considered an act of the State, even if it exceeds its authority (ultra
objects. vires) or contravenes instructions.
 Accountability: o Rationale: A State cannot escape responsibility by claiming its agents acted
o A moral and political concept, distinct from legal responsibility. improperly or against orders. This upholds the principle that domestic law cannot
o Refers to the need to hold public authorities (including international organizations) excuse international breaches (Article 3).
answerable for decisions/actions. o Key Condition: The organ/person must still be acting in an "official capacity" with
o Emphasizes transparency, public debate, and external scrutiny. Can be legally apparent authority, not a purely private one.
regulated, but the underlying concept is political/moral. o Example: A police officer torturing an inmate despite instructions not to.
 Collective Responsibility: 5. Exception for Armed Forces in International Armed Conflict (Not in ARSIWA,
o International law treats the State as a single, abstract entity bearing responsibility. but Customary Law):
o This simplifies the legal framework but hides the complex moral question of collective o In situations of international armed conflict, a State is responsible for wrongful
responsibility for wrongs committed on behalf of a nation. conduct of its armed forces members even when they act in a purely private
o International law generally avoids delving into internal distribution of burdens for capacity (e.g., off-duty soldiers committing a crime).
reparations. o This rule, found in the 1907 Hague Rules (Article 3) and 1977 First Protocol Additional
to Geneva Conventions (Article 91), aims to ensure discipline and protect foreign
This text delves into the subjective element of an internationally wrongful act: attribution. citizens during wartime.
It explains how the actions of human beings are legally linked to an abstract entity like a State, making
the State internationally responsible. It primarily focuses on the rules of attribution outlined in the
International Law Commission's (ILC) Articles on State Responsibility for Internationally
Wrongful Acts (ARSIWA), highlighting key articles and notable case law. Attribution of Private Acts (Articles 9, 10, 11 ARSIWA)

As a rule, private individuals' actions are not attributable to the State. However, their actions might
reveal a State's omission (e.g., failure to protect an embassy from a crowd). There are specific
The Subjective Element: Attribution exceptions where private acts can be attributed:

 Definition: Attribution is the legal operation by which the behavior of human beings is 1. Conduct Carried Out in the Absence or Default of Official Authorities (Article 9):
legally deemed the conduct of a subject of international law (a State or international o Rule: The conduct of a person or group is attributable to the State if they are in fact
organization). States are abstract entities and act through human agents. exercising elements of governmental authority because official authorities are absent
 Omissions: When an internationally wrongful act is an omission (failure to act), attribution or in default, and the circumstances call for such exercise.
is often implied and automatic, focusing on the subject under the obligation and its failure to o Example: Individuals or groups taking over public services or exercising law
perform. enforcement in a territory recently freed from occupation, where the State
 Customary Rules: The rules on attribution are customary international law, codified in the administration has not yet re-established control.
ARSIWA. They help to understand the nature of States as unified legal entities in international 2. Conduct of an Insurrectional Movement (Article 10):
law. o Rule:
 If an insurrectional movement fails to become the new government, its acts
are not attributable to the existing State. (The State is responsible for the
conduct of its own organs in fighting the movement).
 If an insurrectional movement succeeds in becoming the new government,
Basic Rules on Attribution of State Organs (Articles 4, 5, 6, 7 ARSIWA) the State is responsible for the acts of the former government, the new
government itself, AND the acts of the insurrectional movement at
1. Conduct of State Organs (Article 4): the time it was not yet the government (retrospective attribution).
o Rule: A State is responsible for the conduct of any of its organs, regardless of their  Similarly, if a separatist movement succeeds in forming a new State, the new
function (legislative, executive, judicial) or their position (high-ranking official, low- State is responsible for the acts of the movement during its fight for
ranking civil servant, central government, decentralized entity, municipality). independence.
o Example: The ICJ finding Italy responsible for judgments of its Corte di Cassazione. 3. Conduct Acknowledged and Adopted by a State (Article 11):
o Condition: The organ must have acted in its capacity as an organ in the particular o Rule: An act not otherwise attributable to a State becomes so if the State
instance, not in a purely private capacity. A civil servant off-duty is not acting as an "acknowledges and adopts the conduct in question as its own."
organ. o Example: Tehran Hostages case (ICJ, 1980):
2. Conduct of Persons or Entities Exercising Governmental Authority (Article 5):  Initially, the Iranian students' storming of the US embassy was not attributed
o Rule: A State is responsible for the conduct of persons or entities not formally State to Iran directly, but their actions revealed Iran's wrongful omission to protect
organs but "empowered under domestic law to exercise elements of governmental the embassy.
authority," provided they act in that capacity.  However, once the new Iranian authorities, including Ayatollah Khomeini,
o Purpose: Covers parastatal entities or private companies (e.g., private security firms praised and effectively endorsed the students' actions, and decided to
acting as prison guards or immigration officials) entrusted with public tasks. perpetuate the hostage-taking, the ICJ ruled that Iran had "acknowledged and
3. Conduct of Organs Placed at the Disposal of Another State (Article 6): adopted" the conduct as its own. From that moment, the militants became
o Rule: If one State lends its organs to another State, the conduct of those foreign agents of the Iranian State, and their acts were attributable to Iran.
organs is attributed to the receiving State if they effectively acted in the exercise of
that State's governmental authority.
Attribution of Private Acts (Article 8): "Conduct Directed or Controlled by a State"  Core Question: When are acts committed by individuals or groups not officially part of a
state (i.e., not its "organs") attributable to that state?
This is a highly controversial area, dealing with a State's responsibility for groups it sponsors or helps  ICJ's Stance (Genocide Case, reaffirming Nicaragua v. USA): The International
abroad (e.g., armed groups, terrorists). Court of Justice (ICJ) upholds the "effective control" test. This demanding standard
requires proving that the state exercised control or gave instructions for each specific
 General Principle: Merely helping or funding groups abroad might constitute a separate operation during which the internationally wrongful act (e.g., genocide) occurred.
wrongful act (e.g., interference in domestic affairs), but the core question is whether the o It is not sufficient to show:
group's own wrongful acts are attributable to the sponsoring State.  "Complete dependence" on the state (which would equate them to de facto
state organs).
 "Real Link": Attribution depends on "the existence of a real link between the person or
 "Overall control" over the general activities of the group.
group performing the act and the State machinery."
 Rejection of "Overall Control" (ICTY's Tadić case): The ICJ explicitly rejected the
"overall control" test applied by the ICTY Appeals Chamber in the Tadić case for the purpose
1. Acting on Instructions / Direction / Control (Article 8): of attributing state responsibility.
o Rule: "The conduct of a person or group of persons shall be considered an act of a o Reasons: The ICTY's jurisdiction is criminal (persons, not states), and its
State under international law if the person or group of persons is in fact acting on the pronouncements on general international law outside its specific purview are not
instructions of, or under the direction or control of, that State in carrying out the binding on the ICJ. More importantly, the "overall control" test was deemed to
conduct." broaden state responsibility excessively, diluting the fundamental principle that a
o "Instructions": If specific instructions are proven, attribution is clear. This is often state is primarily responsible for its own conduct. The ICJ emphasized that the test for
hard to prove due to secrecy. characterizing an armed conflict (where "overall control" might apply) is different
o "Direction or Control": The crucial and controversial aspect. What degree of from the test for attributing specific wrongful acts to a state.
control is needed?
 Basis: This "effective control" standard is rooted in customary international law, as reflected
2. The "Effective Control" vs. "Overall Control" Debate:
in Article 8 of the ILC Articles on State Responsibility.
o Nicaragua v. United States (ICJ, 1986):
1. ICJ's "Effective Control" Test: The Court rejected attributing all
Contra actions to the US. It held that merely funding and training was II. Responsibility in Connection with the Act of Another State (ARSIWA Articles 16-19)
insufficient. For attribution, the US needed to have "effective control
of the military or paramilitary operations in the course of which the This section addresses scenarios where a state incurs responsibility not because the other state's
alleged violations were committed," meaning it directed or enforced conduct is attributed to it, but because of its own involvement in, or influence over, the wrongful act of
the specific wrongful acts. This is a very high bar to meet. another state.
o Tadić case (ICTY Appeals Chamber, 1999):
 ICTY's "Overall Control" Test: In a different context (determining if a  Article 16: Aid or Assistance (Complicity):
conflict was international), the ICTY criticized the ICJ's "effective control" o A state is responsible for its own act of aiding or assisting another state in committing
test. It held that "overall control" by Serbia over Bosnian Serbs (including an internationally wrongful act.
financing, equipping, and some participation in planning/supervision of o Conditions: Knowledge of the circumstances of the wrongful act, and the act would
operations) was sufficient for attribution. It did not require proof that Serbia have been wrongful if committed by the aiding state itself.
directed the specific crimes. o This is a primary rule of conduct (aiding itself is wrongful), not a secondary rule of
o Bosnia and Herzegovina v. Serbia (ICJ, 2007): attribution of the other state's conduct.
 ICJ Reaffirms "Effective Control": The ICJ explicitly rejected the ICTY's  Article 17: Direction and Control:
"overall control" test, re-affirming its Nicaragua "effective control" test for o A state is responsible "for that act" (the internationally wrongful act committed by the
attribution under State responsibility. The Court found Serbia not directly other state) if it directs and controls the other state in its commission.
responsible for the Srebrenica genocide because the Bosnian Serb acts could o Conditions: Knowledge of the circumstances, and the act would have been wrongful if
not be attributed to Serbia under the effective control test. (Though Serbia committed by the directing state.
was found responsible for failing to prevent genocide and failing to punish it, o This is a secondary rule of attribution of responsibility, meaning the directing
as discussed previously). state becomes responsible for the other state's act.
 Article 18: Coercion:
 ILC's Approach (Article 8): The ILC, in drafting Article 8, deliberately used broad o A state is responsible "for that act" (the internationally wrongful act of the coerced
language ("direction or control") without specifying the degree, implicitly acknowledging the state) if it coerces another state to commit it.
debate but leaning towards the more stringent requirement. The ICJ's 2007 judgment in the o Conditions: The act would have been wrongful for the coerced state but for the
Genocide case effectively settled the matter, upholding the "effective control" standard for coercion, and the coercing state knows the circumstances.
attribution of acts of non-State actors to a State. o Similar to Article 17, this is a secondary rule of attribution of responsibility.
 Article 19: Effect of the Chapter: Clarifies that the responsibility incurred under Articles
The provided text details the nuances of State responsibility in international law, particularly 17 and 18 does not preclude the responsibility of the state that actually committed the act (the
focusing on how acts of non-state actors or other states can be attributed to a state, leading to its directed/controlled or coerced state). Thus, two states could be responsible for the same
international responsibility. internationally wrongful act.

Here's a summary of the key concepts and distinctions: In essence, the ICJ maintains a strict approach to attributing the conduct of non-state actors to a state,
requiring "effective control" over specific operations. Separately, international law provides for state
I. Attribution of Conduct: The "Effective Control" Test (ICJ) responsibility when a state directly facilitates, directs, controls, or coerces another state into
committing an internationally wrongful act.
This text explores the complex issue of attribution of internationally wrongful acts to  Cessation (Article 30(a)):
international organizations (IOs), particularly focusing on situations where member states put o This is the most immediate and crucial obligation when an internationally wrongful
their organs (like troops) at the disposal of an IO, such as in UN peacekeeping operations. act is continuing or ongoing.
o It requires the responsible state to stop the wrongful act.
Here's a summary of the key points: o While seemingly similar to simply resuming the primary obligation, cessation is
recognized as a distinct secondary obligation that specifically addresses the wrongful
1. International Organizations and Responsibility: * IOs, when endowed with international act as it happens.
legal personality, can incur responsibility for their own wrongful acts, similar to states. * The rules on o Example: In the Wall Advisory Opinion, the ICJ ruled that Israel was obligated not
IO responsibility are codified by the International Law Commission (ILC) in the Articles on the only to cease construction of the Wall but also to dismantle already built sections, as
Responsibility of International Organizations (ARIO), endorsed by the UN General Assembly in 2011. * the mere presence of the Wall constituted a continuing violation of the Palestinian
Generally, IOs are responsible for the conduct of their organs or agents acting in that capacity. people's right to self-determination. There is no exception to the duty to cease ongoing
violations.
 Assurances and Guarantees of Non-Repetition (Article 30(b)):
2. The Challenge of State Organs Placed at an IO's Disposal: * Many IOs (like the UN with its
o The responsible state may also be obligated to offer "appropriate assurances and
peacekeeping operations) rely on member states contributing their personnel or organs (e.g., troops)
guarantees of non-repetition, if circumstances so require."
because they lack their own standing forces. * This raises a critical question: Who is responsible for the
o This obligation can exist even after the violation has ceased.
wrongful conduct of these "loaned" personnel – the IO, the contributing member state, or both? *
o It is not automatically owed and depends on a concrete assessment of the
Practical Implications: Attribution directly impacts the possibility of bringing claims. For example,
circumstances.
if the UN is responsible, its immunities (under the 1946 Convention on UN privileges and immunities)
o In practice, such assurances are frequently claimed but rarely awarded by
might prevent claims in domestic courts, whereas if the contributing state is responsible, national
international courts and tribunals, as states are generally presumed to act in good
courts might have jurisdiction. * Examples: Srebrenica genocide (Dutch battalion), unexploded
faith and comply with future obligations.
ordnance in Kosovo (KFOR), cholera outbreak in Haiti (Nepalese troops).
II. Reparation (ARSIWA Article 31 onwards)
3. Distinction: "Fully Seconded" vs. "Put at Disposal": * Fully Seconded: If state organs are
"fully seconded" to an IO, they are considered organs of the IO only, and their conduct is attributed
solely to the IO. This is rare for peacekeeping troops. * Put at Disposal (Common for  Core Obligation (Article 31, paragraph 1): The responsible state has the "obligation to
Peacekeepers): Peacekeeping soldiers typically remain members of their national armed forces. make full reparation for the injury caused by the internationally wrongful act." This is a
Their contributing state retains disciplinary powers and criminal jurisdiction, even while they serve fundamental and well-established principle of international law.
under UN command for a specific mission. They are not "fully seconded."  Notion of Injury (Article 31, paragraph 2):
o Injury includes "any damage, whether material or moral," caused by the wrongful act.
4. The "Effective Control" Test for IO Attribution (ARIO Article 7): * ARIO Article 7 o Legal Construct: Injury is a legal construct for two main reasons:
(reflecting current international law) addresses the attribution of wrongful conduct of state organs put 1. Protected Interest: The injury must concern an interest of the state that is
at an IO's disposal. * Two Cumulative Conditions for Attribution to the IO: 1. The state organ protected under international law. States primarily have legally protected
must be put at the disposal of the organization (i.e., helping the IO fulfill its functions). 2. The interests concerning their:
organization must exercise effective control over that specific conduct. * "Effective Control" vs.  Sovereignty
"Ultimate Control": The text emphasizes that "effective control" refers to actual operational control  Property
and should be preferred over the "ultimate control" test used by the European Court of Human Rights  Rights of their own nationals (leading to "diplomatic protection").
in cases like Behrami and Saramati. * Default Attribution: If the IO does not exercise effective 2. Causal Link: The damage must be caused by the internationally wrongful
control over the specific conduct, that conduct is presumed to remain attributable to the contributing act, meaning there must be a causal link.
state, as the organ is still fundamentally an organ of that state. It is only when effective control by the  Legal vs. Material Causality: Legal causality differs from material
IO is established that attribution shifts to the IO. causality. It involves a "human assessment" based on reasonableness,
foreseeability, and proximate cause, rather than a purely scientific
link.
5. The Question of Double Attribution: * The text raises a critical, still controversial, and  Example (Gulf War Compensation): The UN Compensation
developing question: Must attribution be absolute (either to the state by default or to the IO if it has Commission held Iraq responsible for damages materially caused by
effective control)? * It questions whether a situation of double attribution (where both the allied forces in liberating Kuwait. The legal causality was established
contributing state and the IO are held responsible) is possible, especially if the IO's "effective control" because, without Iraq's illegal invasion, there would have been no
does not entirely displace the national chain of command. * Dutch Courts' Position (Srebrenica allied military reaction, and such a reaction was foreseeable.
case): Dutch courts have indeed allowed for double attribution in the Srebrenica case, suggesting this
 Meaning of Reparation (Chorzów Factory case dictum):
is a possibility, though it remains a debated area. * Contextual Factors: The attribution reasoning
o Reparation aims "to wipe out all the consequences of the illegal act and re-establish
and ultimate conclusion will heavily depend on the specific facts of each case, any agreements between
the situation which would, in all probability, have existed if that act had not been
lending states and the UN, and the nature of the breached obligation.
committed."
o Crucially, reparation is not about re-establishing the status quo ante (the situation
The provided text outlines the "new obligations" that arise from a state's international responsibility just before the violation). Instead, it aims to establish the situation that would have
for committing an internationally wrongful act, as detailed in Part Two of the Articles on the existed now if the wrongful act had never occurred.
Responsibility of States for Internationally Wrongful Acts (ARSIWA). These obligations are distinct  Forms of Reparation (ARSIWA Article 34):
from the primary obligation that was breached. o Full reparation can take three forms, singly or in combination, depending on the
nature and extent of the injury:
Here's a summary of these new obligations:
1. Restitution
I. Cessation and Non-Repetition (ARSIWA Article 30) 2. Compensation
 3. Satisfaction o Aim: To address "non-material injury" or "offence caused to State sovereignty" that
cannot be made good by restitution or compensation. It is specific to international law
The text concludes by indicating that the next section will delve into each of these forms of reparation. and reflects its inter-state nature.
o Modalities: May consist of:
 Acknowledgement of the breach (often by an international court's finding).
The provided text delves into the different forms of reparation owed by a state responsible for an
 Expression of regret.
internationally wrongful act, as well as the unique implications of serious breaches of jus cogens
 Formal apology.
norms.
 Another appropriate modality.
o Limitations: Satisfaction "shall not be out of proportion to the injury and may not
Here's a breakdown: take a form humiliating to the responsible State."
o Examples: A court's finding of a breach often constitutes satisfaction. Official
I. The Forms of Reparation (ARSIWA Articles 35-37) apologies are common. Historical examples like a military salute (now considered
humiliating) are no longer used.
The fundamental goal of reparation is to "wipe out all the consequences of the illegal act and re- o Repealing Domestic Acts: In some cases, reparation (even if not strictly cessation)
establish the situation which would, in all probability, have existed if that act had not been can entail the obligation for the responsible state to repeal or cancel domestic acts that
committed." This is not simply returning to the status quo ante (the situation before the breach), but were the basis of the wrongful conduct (e.g., Belgium's arrest warrant in the Arrest
rather creating the hypothetical situation that would exist now without the wrongful act. Warrant case).

There are three main forms of reparation: II. The Right of Individuals to Reparation

 1. Restitution (Article 35):  Traditional View: Historically, international responsibility was seen as purely inter-state,
o Aim: To re-establish the situation that existed before the wrongful act was committed with individuals' injuries being claimed by their national state through diplomatic protection.
(i.e., the status quo ante).  Evolution: International law has likely evolved. ARSIWA Article 33, paragraph 2,
o Preference: It is considered the most natural form of reparation and is generally acknowledges that the Articles are "without prejudice to any right, arising from the
preferred. international responsibility of a State, which may accrue directly to any person or entity other
o Limitations (when restitution is not owed): than a State."
 (a) Materially Impossible: If it's physically impossible (e.g., a destroyed  ICJ's Wall Advisory Opinion: The ICJ affirmed that Israel had an obligation to make
object). reparation directly to "all natural or legal persons concerned" for damages caused by the Wall,
 (b) Disproportionate Burden: If the burden on the responsible state including restitution of seized property or compensation if restitution was impossible. This
would be "out of all proportion to the benefit deriving from restitution instead signals a direct right for individuals.
of compensation." This aims to prevent restitution from being overly punitive  UN General Assembly Resolution (2005): The "Basic Principles and Guidelines on the
or impractical. Right to a Remedy and Reparation for Victims of Gross Violations..." further supports the
o Example: Returning a stolen painting. However, if the painting was damaged or led concept of individual redress, though it is not fully customary international law and primarily
to lost profits, restitution alone might be insufficient for "full reparation." encourages states to offer mechanisms.
 2. Compensation (Article 36):
o Aim: To financially cover any damage (material or moral) that is not made good by III. Serious Breaches of Obligations under Jus Cogens Norms (ARSIWA Articles 40-41)
restitution.
o Scope: Covers any "financially assessable damage," including loss of profits (which
 Definition: A serious breach involves a "gross or systematic failure by the responsible State
demonstrates that reparation goes beyond status quo ante).
to fulfil the obligation" under a peremptory norm of general international law (jus cogens).
o Practicality: It is the most frequently used form of reparation in international
This replaces the earlier "crimes" vs. "delicts" distinction by the ILC.
practice due to the difficulties in achieving full restitution.
o Challenges in Assessment:  No Different Cessation/Reparation for Responsible State: Counterintuitively, the
 Often difficult and controversial to assess the exact amount of damage. obligations of cessation and full reparation for the responsible state are not different or more
 "Contribution to the injury by wilful or negligent action or omission of the extensive simply because the breach is serious or involves jus cogens. Cessation means
injured State" (Article 39) must be considered. stopping the act; reparation means full reparation.
 Equitable Considerations: For some damages, especially non-material  "Particular Consequences" for Other States (Article 41): The unique implications of
ones, or when evidence is poor, international courts (like the ICJ in the Diallo jus cogens breaches fall upon all other states, imposing primary obligations on them:
and DRC v. Uganda cases) may resort to assessing compensation based on o Cooperate to End Breach (Article 41, paragraph 1): States "shall cooperate to
equitable considerations or awarding a global sum. bring to an end through lawful means any serious breach" of a jus cogens obligation.
o Key Points: This is an "obligation of conduct" (best efforts).
 No Punitive Damages: The concept of punitive damages, common in some o Non-Recognition and Non-Assistance (Article 41, paragraph 2): "No State
domestic legal systems, is "alien to international law." shall recognize as lawful a situation created by a serious breach [...], nor render aid or
 Currency: No specific international rule on currency; USD is common due to assistance in maintaining that situation." These are "obligations of result"
accessibility and convertibility, but other currencies can be agreed upon. (prohibitions).
Stability and convertibility are key.  Purpose: These obligations on other states highlight the fundamental importance of jus
 Interest: Interest may be added to the principal sum to ensure full cogens norms, ensuring their survival and upholding common core values even when
compensation (Article 38). breached.
 3. Satisfaction (Article 37):
The provided text, focusing on Part Three of the ARSIWA, details the process and rules concerning the by another state. The underlying legal fiction is that an injury to a
invocation of State responsibility, particularly distinguishing between invocation by an "injured national is an injury to the state itself.
State" and other states. It also covers procedural requirements and situations involving multiple states.  Condition: The injured individual must be a national of the invoking
state.
Here's a summary of the key aspects:  (b) Exhaustion of local remedies rule not met: This also applies to
diplomatic protection.
 Condition: The injured individual must have exhausted all available
I. Invocation of Responsibility: Who Can Claim?
and effective remedies within the legal system of the responsible state
before their national state can exercise diplomatic protection.
The ARSIWA introduces a primary distinction: o These are customary requirements ensuring the proper exercise of diplomatic
protection, preventing premature international claims. The rise of human rights and
 1. Invocation by an "Injured State" (Article 42): This is the State that has the legitimate investment treaties has reduced the exclusive reliance on diplomatic protection for
interest to trigger the rules on international responsibility and officially demand cessation, individuals.
reparation, and guarantees of non-repetition.  Article 45: Loss of the Right to Invoke Responsibility:
o Definition of "Injured State": A State is "injured" if the obligation breached is o A state loses the right to invoke responsibility if:
owed to:  (a) Valid Waiver: The injured state has clearly and unequivocally waived its
 (a) That State individually: This is the clearest case, where the obligation claim (consent must be free and from a competent authority; waiver cannot be
is owed directly to a single state. Examples include obligations under bilateral presumed).
treaties, or specific obligations under multilateral treaties (e.g., protecting a  (b) Acquiescence: The injured state's conduct implies it has validly
diplomatic mission under the Vienna Convention on Diplomatic Relations) or acquiesced in the lapse of the claim. While mere delay is not sufficient, it can
customary international law (e.g., State immunities). be a factor considered with other circumstances (e.g., serious disadvantage to
 (b) A group of States (including that State) or the international the respondent state).
community as a whole (erga omnes obligations), AND the breach:  Article 46: Plurality of Injured States:
 (i) "Specially affects that State": Even if an obligation is o If multiple states are injured by the same wrongful act (e.g., an invasion affecting two
collective (owed to a group or erga omnes), a particular state is neighbors), each injured state can separately invoke responsibility and seek
considered "injured" if the breach affects it in a way that distinguishes full reparation. There is no requirement for joint action, though it is not prohibited.
it from other states. Examples: A state party to the Convention  Article 47: Plurality of Responsible States:
Against Torture torturing a national of another state party; pollution o If several states are responsible for the same wrongful act (e.g., in cases of
from a collective obligation reaching a specific state's shores. direction/control, coercion, or actions by a common organ without separate legal
 (ii) "Is of such a character as radically to change the personality), the responsibility of each state can be invoked.
position of all the other States to which the obligation is o Limitations:
owed with respect to the further performance of the  (a) No Double Recovery: An injured state cannot recover more than the
obligation": This refers to "interdependent obligations," where the actual damage suffered, even if multiple states are responsible.
performance of each party is conditional on the performance of all  (b) Rights of Recourse: The responsible state that makes full reparation
others. Examples include disarmament treaties, nuclear-free zones, or has a right of recourse against the other responsible states for their respective
the Antarctic Treaty. A breach of such an obligation injures every shares (e.g., based on causal apportionment).
other state to which it is owed, as it destabilizes the entire regime. o Controversy (Co-Perpetration): There is debate whether multiple states
(These are also mentioned in Article 60 of the Vienna Convention on breaching the same obligation simultaneously (co-perpetration, e.g., joint aggression)
the Law of Treaties, concerning treaty termination/suspension). constitutes responsibility for "the same" act or for similar but distinct acts. The text
 2. Invocation by "Any State other than an injured State" (Article 48): This category, suggests the latter view is preferable, maintaining the principle that each state is
often related to erga omnes obligations (obligations owed to the international community as a responsible for its own conduct.
whole), will be discussed later but is distinct from the "injured State."
This text focuses on invocation of State responsibility by States other than the injured
II. Procedural and Substantive Rules for Invocation by Injured States (Articles 43-47) State, a crucial aspect of international law concerning collective interests. It delves into the concepts
of erga omnes and erga omnes partes obligations and their implications for accountability.
 Article 43: Notice of Claim:
o An injured State should give notice of its claim to the responsible State. Here's a summary:
o The notice should ideally specify the desired conduct for cessation (if ongoing) and the
form of reparation sought. I. Invocation by a State Other Than the Injured State (ARSIWA Article 48)
o This is a common-sense diplomatic practice, though its customary nature as a strict
requirement is debated.
o Such a notice initiates exchanges that may lead to a settlement or, failing that, a  While an "injured State" (as per Article 42) has specific rights to claim cessation, reparation,
formal dispute. and guarantees of non-repetition, responsibility can also be invoked by non-injured
States when a "collective interest" is at stake.
 Article 44: Admissibility of Claims:
o A State's responsibility cannot be invoked if:  Two Possibilities for Invocation by Non-Injured States (Article 48, paragraph 1):
 (a) Nationality of claims rule not met: This applies primarily to o (a) Obligation owed to a group of States for the protection of a collective
diplomatic protection. interest of that group (Obligations erga omnes partes):
 Diplomatic Protection: The right of a state to protect its nationals  These obligations typically arise from multilateral treaties (though they can be
when they are injured by acts contrary to international law committed customary).
 Example: The obligation under the 1984 Convention Against Torture to
prosecute or extradite alleged torturers (as confirmed by the ICJ in Belgium v.
 Senegal regarding Hissène Habré). All State parties have a common interest  Crucial Distinction: The right to invoke responsibility (i.e., to present a valid claim) is
in compliance with this obligation, even if they are not individually injured. distinct from the right to bring proceedings before an international court or
o (b) Obligation owed to the international community as a whole tribunal.
(Obligations erga omnes):  Consent to Jurisdiction: The jurisdiction of international courts (like the ICJ) is always
 These are customary international law obligations owed by all States to every based on the consent of the disputing States. Even if a claim concerns a breach of an erga
other State. omnes obligation, without the respondent State's consent to jurisdiction, the court cannot hear
 Introduced by the ICJ in the Barcelona Traction case (1970): The the case.
Court distinguished between obligations owed to particular States and those  ICJ's East Timor case: The ICJ clarified this, stating that the erga omnes character of a
owed "towards the international community as a whole," emphasizing that "all norm (like self-determination) does not automatically grant the Court jurisdiction over a State
States can be held to have a legal interest in their protection" due to the that has not consented to it, especially if ruling would require evaluating the conduct of a non-
importance of the rights involved. party State.
 Examples given by ICJ: Outlawing aggression, genocide, basic human  Example Belgium v. Senegal: Belgium did have standing to bring the case because both
rights (slavery, racial discrimination), and later, the right to self- Belgium and Senegal were parties to the Convention Against Torture, which contained a
determination of peoples (East Timor case, Wall Advisory Opinion). compromissory clause granting the ICJ jurisdiction over disputes concerning its interpretation
 Purpose of Invocation by Non-Injured States (Article 48, paragraph 2): or application.
o The invocation by non-injured States serves a collective purpose, not a selfish one.  The provided text describes The Rohingya Genocide case brought by The Gambia against
They can claim from the responsible State: Myanmar before the International Court of Justice (ICJ). The core of The Gambia's standing
 (a) Cessation of the wrongful act and (if applicable) assurances/guarantees in this case rests on the concept of erga omnes partes obligations.
of non-repetition. This aims for a return to legality in the interest of the  Here's a summary of the key points:
collective group or international community.
 Case Initiation: In 2019, The Gambia initiated proceedings against Myanmar, alleging that
 (b) Performance of the obligation of reparation (restitution,
Myanmar's "clearance operations" in 2016 and 2017 against the Rohingya (a Muslim minority
compensation, satisfaction) but in the interest of the injured State or
group) constituted genocide, in violation of the 1948 Genocide Convention.
the beneficiaries of the breached obligation (e.g., individuals), not in
the interest of the non-injured State invoking responsibility.
 Applicability of Procedural Rules (Article 48, paragraph 3):  The Gambia's Standing (Erga Omnes Partes):
o The same requirements for notice of claim (Article 43), admissibility of claims (Article o The Gambia's right to invoke Myanmar's responsibility is entirely based on the erga
44), and loss of the right to invoke responsibility (Article 45) that apply to injured omnes partes character of the obligations within the Genocide
States also apply to non-injured States. Convention. This means that the obligations in the Convention are owed by each
State Party to all other State Parties, due to the shared fundamental purpose of
preventing and punishing genocide.
II. Obligations Erga Omnes (Partes) and Jus Cogens
o The ICJ, in its 2020 Order on Provisional Measures and its 2022 Judgment on
Preliminary Objections, reaffirmed its earlier jurisprudence (from the Reservations to
 Distinction: the Genocide Convention Advisory Opinion and Belgium v. Senegal case on the
o Jus Cogens: Refers to the peremptory character of norms (e.g., prohibition of Torture Convention).
genocide). These are fundamental norms from which no derogation is permitted. o The Court stressed that the Genocide Convention is about "common interest" and
o Erga Omnes: Refers to the effect of obligations – they are owed to the "high purposes," not individual advantages or contractual balance between states.
international community as a whole or to a group of States. o Therefore, any State Party to the Genocide Convention, without needing to
o Relationship: Every jus cogens norm gives rise to erga omnes obligations. However, demonstrate a "specially affected" interest, may invoke the responsibility of
not all erga omnes obligations stem from jus cogens norms (some can be derogated another State Party for an alleged breach of these erga omnes partes obligations and
from, or exist under multilateral treaties as erga omnes partes obligations). bring a claim before the ICJ. The Court explicitly rejected Myanmar's argument that a
 Institute of International Law (IDI) Krakow Resolution (2005): "special interest" was required for standing.
o Article 1: Defines erga omnes broadly, encompassing obligations under general  Provisional Measures: Recognizing an "imminent risk of further harm to the Rohingya
international law (owed to the international community) and obligations under group," the ICJ ordered Myanmar to comply with certain provisional measures on January 23,
multilateral treaties (owed to all other State parties for collective interests). 2020, while the case is pending.
o Article 2: Confirms that all States to which an erga omnes obligation is owed (even if  Non-Applicability of Nationality of Claims Rule: The ICJ further confirmed in its 2022
not specially affected) are entitled to claim cessation and reparation in the interest of Judgment that the rule concerning the nationality of claims (Article 44 ARSIWA) is not
the specially affected party. applicable in the context of the Genocide Convention or in other cases where its application
o Article 3: Affirms that a State to which an erga omnes obligation is owed has would contradict the object and purpose of the treaty. This is significant because genocide
standing to bring a claim to the ICJ or other international judicial institution if a targets a group, not necessarily individuals with a specific nationality link to the claimant
jurisdictional link exists. This was notably demonstrated in Belgium v. Senegal. state, thus allowing any State Party to bring a claim regardless of the victims' nationality.
o Article 5: Outlines specific consequences for all States in case of a widely
acknowledged grave breach of an erga omnes obligation:
The provided text comprehensively explains the concept of countermeasures in international law,
 (a) Shall endeavor to bring the breach to an end through lawful means
distinguishing them from other forms of self-help and outlining their conditions, limitations, and the
(obligation of conduct).
controversial issue of "universal countermeasures" taken by non-injured states.
 (b) Shall not recognize as lawful a situation created by the breach.
 (c) Are entitled to take non-forcible countermeasures under
conditions similar to an injured State.
The Notion of Countermeasures
III. Invoking Responsibility vs. Consent to Jurisdiction
International law, being a decentralized legal order, allows states to assess if a wrongful act has
occurred and to invoke responsibility. However, the absence of compulsory international adjudication
means that a responsible state might simply reject a claim. To prevent international law from being  Necessity: Countermeasures must be necessary to induce the responsible state to comply.
ineffective in such scenarios, states can resort to various measures. This is largely translated into procedural obligations in Article 52.
 Proportionality (Article 51): Countermeasures "must be commensurate with the injury
 Retorsions: These are unfriendly but intrinsically legal measures (e.g., postponing a state suffered, taking into account the gravity of the internationally wrongful act and the rights in
visit, reducing diplomatic ties, suspending a treaty in accordance with treaty law). They are not question." Proportionality considers both quantitative (extent of injury) and qualitative factors
regulated by the law of state responsibility. (gravity of the breach, importance of the infringed rule, and effects on the responsible state
 Countermeasures: These are measures that are, as such, in breach of the injured and third states).
state's international obligations towards the responsible state, but their wrongfulness is
precluded because they are taken in response to a prior internationally wrongful act. They Procedural Conditions (Article 52)
are a form of self-redress or non-forcible reprisals, traditionally tolerated in
international law. Before taking countermeasures, an injured state must generally:

Characteristics of Countermeasures  (a) Call upon the responsible State to fulfill its obligations.
 (b) Notify the responsible State of any decision to take countermeasures and
 Response to a Wrongful Act: Countermeasures are always taken in response to a previous offer to negotiate.
internationally wrongful act committed by another state.  Urgent Countermeasures (Exception): Urgent countermeasures may be taken without
 Target: They must be directed only against the responsible state. prior notification if necessary to preserve the injured state's rights.
 Purpose: Countermeasures are enforcement measures intended solely "to induce [the  Suspension: Countermeasures must be suspended without undue delay if the wrongful act
responsible] State to comply with its obligations under part two" of the ARSIWA (cessation, has ceased and the dispute is before a binding court or tribunal, unless the responsible state
reparation, and assurances/guarantees of non-repetition). They are not punitive. fails to implement the dispute settlement procedures in good faith.
 Temporary Nature: Countermeasures are, by nature, temporary and must be terminated
as soon as the responsible state complies with its secondary obligations (Article 53). They
should also be taken in a way that allows for the resumption of the original obligations (Article
49, paras. 2-3). Countermeasures by Other States Than the Injured State ("Universal Countermeasures")
 Author: Only the injured State (as defined in Article 42 ARSIWA) can initially resort to
countermeasures. This is a highly controversial area of international law. While non-injured states can invoke
responsibility for breaches of collective interests (erga omnes or erga omnes partes obligations under
Article 48), the question of whether they can take countermeasures (measures that are otherwise
illegal) remains unresolved in codified law.
Limits to the Exercise of Countermeasures (ARSIWA Article 50-51)
 The Argument for: In situations involving serious breaches of jus cogens norms (e.g.,
While countermeasures are permitted, they are subject to strict limitations: genocide, aggression) where the UN Security Council might be paralyzed (e.g., by veto),
allowing non-injured states to take non-forcible countermeasures could provide a means to
Obligations Not Affected by Countermeasures (Article 50) exert pressure and uphold fundamental values.
 Historical Practice: The text points to several instances of non-injured states imposing
Countermeasures cannot impair certain fundamental obligations: sanctions or other measures in response to grave violations (e.g., US embargo against Uganda
in 1978, Western sanctions against Poland in 1981, trade sanctions against Argentina in 1982,
measures against South Africa in 1990, and actions against Iraq in 1990 before Security
 (a) Prohibition on the threat or use of force: Countermeasures cannot involve armed
Council sanctions). More recently, the US, EU, and others have imposed sanctions on Russia
force (e.g., armed reprisals are prohibited). This is a cornerstone of international law and
following its actions in Ukraine, some of which are considered countermeasures.
widely accepted.
 Concerns and Controversies:
 (b) Obligations for the protection of fundamental human rights: States cannot
o Certainty of Breach: How can it be definitively established that a serious jus cogens
violate human rights in the name of countermeasures.
breach has occurred and is continuing?
 (c) Obligations of a humanitarian character prohibiting reprisals: This refers to
o True Purpose: Are such measures genuinely aimed at cessation, or do they serve
norms of international humanitarian law, particularly those protecting specific categories of
other political objectives?
persons (e.g., civilians, prisoners of war) from reprisals.
o Power Imbalance: Such a right might disproportionately empower already
 (d) Other obligations under peremptory norms of general international law (jus powerful states, primarily Western states, allowing them to unilaterally "take the
cogens): Countermeasures cannot breach jus cogens norms. common interest in their own hands."
 (e) Obligations under applicable dispute settlement procedures: A state taking  ILC's Stance (Article 54 ARSIWA):
countermeasures is still bound by any existing dispute settlement mechanisms with the o The ILC initially proposed allowing all states to take countermeasures for "crimes" of
responsible state. states (serious jus cogens breaches) in 1996.
 (f) Obligations to respect the inviolability of diplomatic or consular agents, o Due to highly divisive reactions among UN member states (with Western powers
premises, archives, and documents: Diplomatic law is considered a "self-contained being largely isolated in their support), the ILC adopted a "without prejudice
regime." While other diplomatic privileges might be affected by countermeasures, the clause" in Article 54.
inviolability of diplomatic agents and missions is sacrosanct and cannot be breached in o Article 54: Titled "Measures taken by States other than an injured State," it states
response to a violation (as per the Tehran Hostages case). that such states have the right "to take lawful measures against that State."
o Interpretation: The ILC Commentary clarifies that "lawful measures" refers to
Customary Requirements for Exercise actions that are intrinsically lawful (i.e., retorsions), and Article 54 is a "saving
clause" that reserves the position on broader "universal countermeasures" for the
future development of international law, acknowledging that "the current state of
international law on countermeasures taken in the general or collective interest is
uncertain."