Public International Law Exam Guide Public International Law Exam Guide

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Public international law exam guide
Public International Law (University of Technology Sydney)
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PUBLIC INTERNATIONAL LAW

INDIVIDUAL RESPONSIBILITY
A. What is the crime being prosecuted?

B. Basis for jurisdiction
C. Immunity from jurisdiction
D. International liability of individuals
STATE BASED RESPONSIBILITY – CUSTOMARY INTERNATIONAL LAW
A. Does the ICJ have jurisdiction?

B. What is the relevant international law?
C. Is the state bound by this international law?
D. Has there been a breach of the customary international law?
E. Has there been a use of force?
F. Has there been a mistreatment of foreign nationals?
G. Is the State responsible for the breach? (attribution)
H. Are there circumstances precluding wrongfulness? (defences)
I. Are there any consequences of the state’s responsibility? (remedies)
STATE BASED RESPONSIBILITY – TREATY LAW
A. Does the ICJ have jurisdiction?

B. What is the relevant international law?
C. Does the state have capacity to enter into the treaty? (recognition)
D. Is the state bound by the treaty?
E. Application of treaties.
F. Is consent to the treaty invalid?
G. Has there been a breach of the treaty?
H. Are there grounds for terminating the treaty?
I. Has there been a use of force?
J. Is the State responsible for the breach? (attribution)
K. Are there circumstances precluding wrongfulness? (defences)
L. Are there any consequences of the state’s responsibility? (remedies)
PEACEFUL SETTLEMENT OF INTERNATIONAL DISPUTES
Note: all legislation refers to the following:

• International Law Commission’s Articles on State Responsibility (ILC)
• Vienna Convention on the Law of Treaties 1969 (VCLT)
• Vienna Convention on Diplomatic Relations 1961 (VCDR)
• Vienna Convention on Consular Relations 1963 (VCCR)
• UN Charter
• Rome Statute

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INDIVIDUAL RESPONSIBILITY
A. WHAT IS THE CRIME BEING PROSECUTED?
• On the facts, consider the act that may be in contravention with the state’s domestic laws.
B. BASIS FOR JURISDICTION
• States may have jurisdiction to make and enforce domestic laws over certain individuals,
places and events.
- Prescriptive jurisdiction: power to make law
- Enforcement jurisdiction: power to enforce domestic law
• The UN is not authorised to intervene in matters within the domestic jurisdiction of any State
(Article 2(7) UN Charter).
• For domestic courts, there must be a specific jurisdictional head upon which the court is
acting in order for it to validly exercise jurisdiction in international law
Heads of jurisdiction
Territorial Principle
• Where a crime takes place in territory
• A state may assert/exercise criminal jurisdiction when an element (i.e. part of the process of
commissioning an offence) of a criminal offence takes place within its territory (Lotus Case)
• Subjective territoriality: exists where events take place within the State’s territory, even
though they might have effects elsewhere (Lotus Case)
• Objective territoriality: applies to events which take place in the territory of another State but
which have an impact on the territory of the State claiming jurisdiction (Lotus Case)
Nationality Principle
• Where a national commits crime overseas
• A state may enforce its laws against one of its nationals, even though the national committed
the offence in another state (Lotus Case).
- For example, Australians committed child sex offences overseas. Australia was able to
assert jurisdiction over the offenders by way of the nationality principle (XYZ V
Commonwealth)
Protective (security) Principle

• Where State’s security interests are threatened. For example, physical attacks on state organs
(Eichmann), forgery of official documents, counterfeiting of currency, and espionage.
• Allows states to exercise criminal jurisdiction over non-nationals who have committed an act
abroad prejudicial to the security of the state exercising jurisdiction (Eichmann).
• The offence must threaten or cause detriment to the vital interests of the asserting state.
Passive Personality Principle

• Where a national is a victim of the crime
• Allows the national state of the victim of an offence to assert jurisdiction over the offender
who is a national of another state (Lotus Case)
• Only crimes that are subject to widespread/universal international condemnation should be
subject to the passive personality principle (US v Yanis (No. 2))

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Universal Jurisdiction
• Where a crime is a threat to all international community.
• A state may be able to exercise jurisdiction over crimes no matter where they occur, if the
state can establish that the conduct is so serious that it represents a threat to the entire
international community (Eichmann).
• There is no nexus needed between the offender and the prosecuting state.
• Crimes giving rise to universal jurisdiction include piracy, war crimes against humanity
(Eichmann), torture (Ex parte Pinochet Ugarte) and genocide (Eichmann).
C. IMMUNITY FROM JURISDICTION
• The principle of immunity prohibits a State from exercising its domestic jurisdiction against
another State (Germany v Italy: Greece Intervening).
Functional immunity (ratione materiae)
• It will apply to all acts undertaken, which are ‘governmental’ in nature, and it attaches to the
individual who committed the action.
• A person is entitled to immunity for official conduct during their time in office, even though
they are no longer in office.
• That is, immunity to protect a person because he/she has performed a state duty in an official
capacity, and not a private capacity (Arrest Warrant Case).
• It is irrelevant that the person is no longer in office (Arrest Warrant case) as the sovereign
immunity extends beyond a person’s term in office (Ex parte Pinochet Ugarte (No 3)).
• Once a person leaves office, they are only protected from acts committed that were official in
nature (Ex parte Pinochet Ugarte (No 3)).
Personal immunities (ratione personae)
• Immunity conferred by virtue of a person’s status or office.

• Personal immunity is only reserved for certain position holders and only operates whilst they
hold that position.
• Former head of state has absolute immunity for acts done whilst they were in office (Ex Parte
Pinochet)
• It is irrelevant that the person’s conduct was in the course of his/her private life, as they still
remain in office/hold a government position (Arrest Warrant Case).
Diplomatic Immunity
• A diplomat of a sending State shall enjoy immunity from the criminal jurisdiction of the
receiving State, (Article 31 VCDR).
• Diplomats are considered inviolable and not subject to arrest (Article 29 VCDR).
• Diplomats are immune from civil proceedings except in relation to private activities that are
outside their official functions (Article 31 VCDR)
• Generally, a Diplomat’s family will also enjoy the same immunities, provided they are not a
citizen of the receiving/host State.
• The purpose of this immunity is to maximise efficiency in the conduct of international
relations and diplomacy (US v Iran).
• The immunity belongs to the State, not the diplomat. Therefore, the immunity from
jurisdiction of a diplomat may be waived by the sending State (Article 32(1) VCDR).

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Consular immunity
• Consular officials are not immune from either criminal or civil jurisdiction of receiving/host
State, unless action arises out of the performance of their official duties (Article 43 VCCR).
• Consular officials may not be arrested or detained, unless it is in relation to a ‘grave crime’.
Head of State Immunity

• Heads of States (i.e. the Prime Minister or Queen) are immune from civil and criminal action
by other States.
• Immunity of a former Head of State only extends to official functions undertaken whilst
holding the position (Pinochet’s Case).
Foreign Ministers
• Foreign ministers enjoy absolute immunity while in office, covering acts performed in both
their public and private capacity (Arrest Warrant Case).
• It is necessary to ensure the proper and efficient conduct of a State’s international relations
and diplomacy, as foreign ministers have functions that make them representatives of the
State.
D. INTERNATIONAL LIABILITY OF INDIVIDUALS
• If a State has jurisdiction to prosecute an offending individual, and the individual is not
protected by an immunity, then that State may prosecute the offending individual in the
State’s domestic Court.
OR
• Where a State does not have jurisdiction to prosecute an individual, the International Criminal
Court may have jurisdiction over the individual (Article 25(1) Rome Statute).
• The individual may be held criminally responsible and liable for punishment of the crime
within the ICC’s jurisdiction (Article 25(3) Rome Statute).
• The ICC has jurisdiction to prosecute an individual for crimes of genocide, crimes against
humanity, war crimes and the crime of aggression (Article 5 Rome Statute).

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STATE BASED RESPONSIBILITY – CUSTOMARY INTERNATIONAL LAW

A. DOES THE ICJ HAVE JURISDICTION?
• On the facts, the State Parties have made declarations under Article 36(2) of the Statute of
the ICJ accepting the ICJ’s compulsory jurisdiction.
• If the facts do not make it clear whether the ICJ has jurisdiction, we can assume the States
have made the Article 36(2) declaration.
• This declaration has the effect of giving general consent for the ICJ to determine disputes
involving customary international law.
• In determining the dispute, the ICJ will apply international custom, as evidence of a general
practice accepted as law (Article 38(1)(b)).
Are there any reservations to ICJ’s jurisdiction?

• States may choose to give acceptance either unconditionally or to qualify their declarations
under Article 36(2) with conditions or reservations (Fisheries Jurisdiction (Spain v Canada)).
• Time conditions: States may place conditions on temporal jurisdiction of the ICJ i.e. when
disputes arise and the length of time in which the ICJ may exercise jurisdiction (Nicaragua
Case).
• Subject matter: States may make reservations to the ICJ’s jurisdiction over certain subject
matters (Norwegian Loans Case).
Effect of reservations
• When both parties have made declarations under Article 36(2), then either party may rely on
the reservations of the other as if they were their own in order to claim that the ICJ does not
have jurisdiction over the dispute (Norwegian Loans Case).
• When the reservations made by two parties to a dispute differ in scope, the reservation
which is narrower prevails in that it constitutes the common will of the parties (Norwegian
Loans Case).
For extra marks

• As per Article 59 of the Statute of the ICJ, the Court’s decision will only bind the parties to this
particular case.
• As per Article 2(3) of the UN Charter, there is an obligation on parties to settle international
disputes peacefully.
B. WHAT IS THE RELEVANT INTERNATIONAL LAW?
• On the facts, the relevant source of international law is customary international law because
the state practice/custom is in ‘constant and uniform usage, and accepted as law’ (Asylum
Case (Colombia v Peru)).
- For example, a state practice/custom may be where Country A has permitted Country B’s
people to cross Country A’s borders in search for water. This practice has continued for
centuries.
Constant and uniform usage

• This is evidenced by reference to state practice to see whether the principle has been widely
accepted enough to constitute a customary law.
• For a principle to be regarded as being in constant and uniform usage it should conform to
these requirements:

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- The state practice should potentially form basis of a generally applicable universal law
(North Sea Continental Shelf Cases)
- The principle needs to be accepted by many states (North Sea Continental Shelf Cases)
- State practice should indicate that the rule has been thoroughly and reasonably
consistently adopted; it is extensive and uniform (North Sea Continental Shelf Cases)
- State practice needs to have been generally adopted by those states who are particularly
affected by it (North Sea Continental Shelf Cases)
- State practice need not encompass all states, but there needs to be a degree of
participation from the states who are most likely to be affected by the establishment of
the rule (North Sea Continental Shelf Cases)
- Treaty and customary law may co-exist – when a treaty and a customary law are identical,
one does not supervene the other. They may both apply simultaneously and bind states
simultaneously (Nicaragua Case)
• Evidence of constant and uniform usage: (North Sea Continental Shelf Cases)
- Diplomatic relations between states can be used to indicate disposition of state towards
customary law
- Just because a state does not ratify a treaty, it does not mean that it does not accept the
custom underlying the treaty.
- State practice of certain states may be regarded as more persuasive if they have a greater
interest/influence in the subject.
Accepted as law (opinio juris)

• States must also hold a subjective conviction/belief that observance of the rule is necessary
or required as a matter of legal obligation, not just convenience (North Sea Continental Shelf
Cases)
• There needs to be proof that a state follows/applies a custom because it feels that it has a
legal obligation to do so.
• Presumption of opinion juris may be inferred where a large number of states conform to a
given practice.
• If it is impossible to determine the reasons for state action in obeying a rule, then the court
should rule against the existence of customary law.
• Evidence of opinio juris includes: (North Sea Continental Shelf Cases)
- Municipal legislation and judicial decisions
- Statements of government policy
- Voting support for resolutions in UN
- Diplomatic correspondence
- Military reports and manuals
C. IS THE STATE BOUND BY THE CUSTOMARY LAW?
• States will be bound by customary international law if they have not consistently objected to
the rule.
• States that have consistently objected to the rule may be exempt from an otherwise
universally applicable rule of customary international law if: (Norwegian Fisheries Case)
- They raised the objection to the rule immediately
- They act and continue to act in objection to the rule over time

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D. HAS THERE BEEN A BREACH OF THE CUSTOMARY INTERNATIONAL LAW?
• There is a breach of an international obligation by a State when an act of that State is not in
conformity with what is required of it by that obligation, regardless of its origin or character
(Article 12 ILC).
• An act of a State does not constitute a breach of an international obligation unless the State is
bound by the obligation in question at the time the act occurs (Article 13 ILC).
• Consider whether or not the acts in question amount to a breach of customary international
law. Apply the facts to the custom.
E. HAS THERE BEEN A USE OF FORCE?
General prohibition on the use of force

• The prohibition on the use of force also exists in customary international law as a peremptory
norm (jus cogens) binding on all states (Nicaragua Case (Merits)).
• UN Charter provisions (below) correlate with the prohibition on the use of force under
customary international law.
• All Members shall refrain in their international relations from the threat or use of force
against the territorial integrity or political independence of any state, or in any other manner
inconsistent with the Purposes of the United Nations (Article 2(4) UN Charter).
Indirect force
• An indirect use of force can amount to a breach of Article 2(4) UN Charter.
• Indirect force is the organisation of irregular forces for incursion into territory of another
state or participation in civil strife of another state.
• Nicaragua Case (Merits)
- ICJ made various determinations on whether certain actions by the US amounted to an
indirect illegal use of force.
- Breaches: laying of mines, attacks on ports, provision of weapons and training to Contras
were all breaches of use of force by US.
- Non-Breaches: military manoeuvres close to the border and mere provision of funds was
not considered a breach of prohibition of use of force, but did amount to breach of non-
intervention principle. Humanitarian assistance is generally not illegal so long as it is
provided equally to rebels and community in need.
Threat of force
• A threat of the use of force may be a breach of Article 2(4) UN Charter.
• Examples of a 'threat of force':
- Nicaragua Case (Merits): US military manoeuvres near Nicaragua border did not amount
to a threat of use of force.
- Guyana v Suriname: orders of a Suriname patrol boat to a Canadian oil rig in Guyana to
leave in 12 hours or 'consequences would be theirs' held to be a threat.
Principle of non-intervention
• States cannot intervene in matters within the domestic jurisdiction of another State (Article
2(7) UN Charter; Nicaragua).
• Intervening in the domestic matters of another State amounts to a breach of international
Law.

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Exceptions to the use of force
Self-Defence
• States are permitted to use force in act of self-defence if an armed attack occurs against them
(Article 51 UN Charter).
• If the State uses force in an act of self-defence, it must report this use of force immediately to
the Security Council (Article 51 UN Charter).
• The State must not affect the authority and responsibility of the Security Council to take
action in order to maintain or restore international peace and security (Article 51 UN
Charter).
• Armed-attack:
- Self-defence is only available when there has been an armed attack made by another
state on the state that is invoking self-defence (Nicaragua Case (Merits)).
- It is not an armed attack if the state merely gives assistance to rebels by providing
weapons and logistical support (Nicaragua Case (Merits)).
• Grave use of force:
- To constitute an armed attack, it must be of such magnitude and duration that that it is a
grave violation of prohibition on use of force (Armed Activities Case).
- Relatively minor uses of force against assets of a state, such as a flagged ship on the high
seas, may not constitute an armed attack if they are not sufficiently serious or grave (Oil
Platforms Case).
• Necessary and proportionate:
- Any use of force in self-defence must be both a necessary and proportionate response to
the original armed attack on the state (Nicaragua Case (Merits)).
- Necessity: act of self-defence must be a response to an instant and overwhelming
threat/attack; must be of utmost necessity in the moment (Caroline Case).
- Proportionate: defending state can only do what is reasonably necessary in order to
negate a threat of attack (Caroline Case).
- Armed Activities Case: even if Uganda could claim self-defence, its actions in engaging in
long term occupation of a huge portion of Congo was hugely disproportionate to the
relatively minor cross-border raids by armed rebels from Congo.
Security Council Authorisation

• The Security Council shall determine the existence of any threat to the peace, breach of the
peace, or act of aggression and shall make recommendations, or decide what measures shall
be taken in accordance with Articles 41 and 42, to maintain or restore international peace
and security (Article 39 UN Charter).
• The Security Council may decide what measures (other than the use of force) are to be used
to give effect to its decisions. These may include complete or partial interruption of economic
relations and of rail, sea, air, postal, telegraphic, radio, and other means of communication,
and the severance of diplomatic relations (Article 41 UN Charter).
• Where such measures are deemed to be inadequate, the Security Council may turn to the use
of force if it is necessary to maintain or restore international peace and security. These may
include demonstrations, blockade, and other operations by air, sea, or land forces of
Members of the United Nations (Article 42 UN Charter).
Humanitarian intervention
• The right of states to take unilateral action by intervening in foreign states to prevent the
further commission of grave human rights abuses by that foreign state against its own people
• NOTE: this is not an affirmative rule of customary international law due to inconsistency of
application and lack of international consensus

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• For example, the use of force to prevent further acts of war crimes and genocide.
• Criteria for intervention:
- There must be convincing and objective evidence generally accepted by international
community of extreme humanitarian distress.
- There must be no objectively clear or practicable alternative to use of force to save lives.
- Any use of force must be both necessary and proportionate in the achievement of
humanitarian goals.
F. HAS THERE BEEN A MISTREATMENT OF FOREIGN NATIONALS?
Where a State has treated a foreign citizen in a way which breaches international law, that individual’s
State of nationality may be entitled to bring an action on his/her behalf through the doctrine of
diplomatic protection. A State has a right to assert diplomatic protection over its nationals, whether
they are individuals or corporations, where local remedies have been exhausted (Nottebohm Case;
Case concerning Barcelona Traction light and Power Co Ltd)
G. IS THE STATE RESPONSIBLE FOR THE BREACH? (ATTRIBUTION)
• States will be held responsible for breaches of international obligations perpetrated by organs
and agents of the State, which are attributable to the State (Rainbow Warrior Case).
• A State is responsible for its internationally wrongful acts (Article 1 ILC).
• An international wrongful act is an act or omission that is attributable to a State, and
constitutes a breach of an international obligation of the State (Article 2 ILC).
• The characterisation of an act of a State as international wrongful is governed by international
law (i.e. treaty or customary law) (Article 3 ILC).
Conduct of organs of a State – Article 4 ILC

1. The conduct of any State organ shall be considered an act of that State, whether the organ
exercises legislative, executive, judicial or any other functions, whatever position it holds in
the organisation of the State, and whatever its character as an organ of the central
Government or of a territorial unit of the State.
2. An organ includes any person or entity which has that status in accordance with the internal
law of the State.
• Applies to any act of an organ at any level of state bureaucracy acting in its public capacity
that is the (Special Rapporteur Case).
Conduct of persons or entities exercising elements of governmental authority – Article 5 ILC

• The conduct of a person or entity which is not an organ of the State under article 4 but which
is empowered by the law of that State to exercise elements of the governmental authority
shall be considered an act of the State, provided the person or entity is acting in that capacity
in the particular instance.
Conduct of organs placed at the disposal of a State by another State – Article 6 ILC
• The conduct of an organ placed at the disposal of a State by another State shall be considered
an act of the former State if the organ is acting in the exercise of elements of the
governmental authority of the State at whose disposal it is placed.
Excess of authority or contravention of instructions (acts ultra vires) – Article 7 ILC

• The conduct of an organ of a State or of a person or entity empowered to exercise elements
of the governmental authority shall be considered an act of the State if the organ, person or
entity acts in that capacity, even if it exceeds its authority or contravenes instructions.

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- Caire Claim (France v Mexico): Mexico liable even though officers were acting outside
their authority because their acts were enabled by their official status and access to
means due to their position.
Conduct directed or controlled by a State – Article 8 ILC

• The conduct of a person or group of persons shall be considered an act of a State if the
person or group of persons is in fact acting on the instructions of, or under the direction or
control of, that State in carrying out the conduct.
• The State will have ‘directed or enforced the perpetration of the acts contrary to’
international law where the State exercised ‘effective control’ over said conduct (Genocide
Convention case).
• Tests for the degree of control that needs to be exercised by the state over the person/group
for liability to arise:
- Effective Control (dominant test): a state needs to do more than support or have a
dependent relationship; they need to have direct and active control over person/group's
actions (Nicaragua Merits Case)
- Overall Control: lower burden of control for state responsibility; state does not need
complete control over the direction and operations of person/group, but needs
significant degree of control over the financing, resourcing, planning and general strategy
(Prosecutor v Tadic)
Conduct carried out in the absence or default of the official authorities – Article 9 ILC
• The State is liable for a person/group who exercises elements of governmental authority in
absence of actual governmental authority and where circumstances demand the exercise of
those elements of authority.
• Applies where there has been a break down in law and order and the state is not able to
assert its authority in a certain way or area, and people have stepped in to provide authority
and government functions (Yeager v Iran).
Conduct of an insurrectional or other movement – Article 10 ILC

• The conduct of an insurrectionist movement which becomes the new government of a state
is an act of the state. The new government is therefore responsible for the acts/omissions it
committed while in process of revolution/insurrection.
Conduct acknowledged and adopted by a State as its own – Article 11 ILC

• Conduct which is not attributable to a State under the preceding articles shall nevertheless be
considered an act of that State if and to the extent that the State acknowledges and adopts
the conduct in question as its own.
- US Diplomatic & Consular Staff in Tehran: Iran held responsible for occupation of US
embassy by private militants as approval of the conduct was given by the Ayatollah, as
well as support being given to them and the decision made to perpetuate the occupation
taken by the Iranian state.
Use of territory to cause harm

• States have an obligation of due diligence not to allow its territory to be used to cause harm
to another State (Corfu Channel).
Responsibility of a State in connection with the act of another State
Aid or assistance – Article 16 ILC
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• A State which aids or assists another State in the commission of an internationally wrongful
act is internationally responsible for doing so if:
(a) That State does so with knowledge of the circumstances of the internationally wrongful
act; and
(b) The act would be internationally wrongful if committed by that State.
Direction and control exercised – Article 17 ILC

• A State which directs and controls another State in the commission of an internationally
wrongful act is internationally responsible for that act if:
act; and
Coercion of another State – Article 18 ILC

• A State which coerces another State to commit an act is internationally responsible for that
act if:
(a) The act would, but for the coercion, be an internationally wrongful act of the coerced
State; and
(b) The coercing State does so with knowledge of the circumstances of the act.
H. ARE THERE CIRCUMSTANCES PRECLUDING WRONGFULNESS? (DEFENCES)
• A state is not liable for an act/omission that constitutes a breach of international legal
obligation if it can prove the existence/application of one of the following defences:
Consent – Article 20 ILC

• The wrongfulness of a State’s act will be excused where a State has consented to an act
performed by another State, which would otherwise constitute a breach of an obligation.
- For example: Solomon Islands consented and supported deployment of Australian troops.
The presence of the troops would have otherwise been illegal without the consent.
Self-defence – Article 21 ILC

• The wrongfulness of a State’s act will be excused where the State has acted in self-defence, in
conformity with Article 51 of the UN Charter.
Charter).
Countermeasures – Article 22 ILC

• The wrongfulness of a State’s act will be excused where the act constitutes a countermeasure
taken against a State in accordance with Articles 49-54 of ILC.
• Countermeasures consist of the non-performance by one State of its international obligations
in order to induce another State to comply with its own obligations (Articles 49(1) and 49(2)
ILC)
• A State proposing to take countermeasures must first call on the other State to comply with
its obligations and then notify that State of the decision to take countermeasures and offer to
negotiate with that State (Article 52 ILC)
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• Countermeasures must:
- Not constitute a threat or use of force (Article 50(1)(a) ILC)
- Not derogate from fundamental human rights (Article 50(1)(b) ILC) or peremptory norms
(Articles 26 and 50(1)(d) ILC)
- Be proportionate with the injury suffered, taking into account the gravity of the
internationally wrongful act and the rights in question (Article 51 ILC; Air Services
Agreement case)
- As far as possible, be taken in a way which allows for the resumption of the performance
of obligations in the future (Article 49(3) ILC)
- Be terminated once the responsible State has complied with its obligations (Article 53 ILC)
- Cease if the dispute is taken to a Court or Tribunal (Article 52(3)(b) ILC)
Force majeure – Article 23 ILC

1. The wrongfulness of a State’s act will be excused if it is due to force majeure, that is the
occurrence of an irresistible force or of an unforeseen event, beyond the control of the State,
making it materially impossible in the circumstances to perform the obligation (Rainbow
Warrior Case).
2. Force majeure cannot be relied upon where:
(a) The State’s own conduct has caused the situation;
(b) The State has assumed the risk of that situation occurring.
Distress – Article 24 ILC

1. The wrongfulness of an act of a State will be excused if the author of the act in question has
no other reasonable way, in a situation of distress, of saving the author’s life or the lives of
other persons entrusted to the author’s care (Rainbow Warrior Case).
2. Distress cannot be relied upon where:
(a) The State has created the situation of distress;
(b) The act in question is likely to create a comparable or greater peril.
Necessity – Article 25 ILC

1. The wrongfulness of an act of a State will be excused if it was necessary to take the action.
The act must comply with the following:
(a) Is the only way for the State to safeguard an essential interest against a grave and
imminent peril; and
(b) Does not seriously impair an essential interest of the State or States towards which the
obligation exists, or of the international community as a whole.
2. Necessity cannot be relied upon if:
(a) The international obligation in question excludes the possibility of invoking necessity; or
(b) The State has contributed to the situation of necessity.
Compliance with peremptory norms – Article 26 ILC

• The wrongfulness of an act of a State will NOT be excused if it breaches an obligation arising
under a peremptory norm of general international law.
I. ARE THERE ANY CONSEQUENCES OF THE STATE’S RESPONSIBILITY? (REMEDIES)
• There are legal consequences for a State’s international wrongful act (Article 28 ILC).
• A State is to continue the performance of its obligation it has breached (Article 29 ILC;
Gacikovo-Nagymoros).
• The State responsible for the internationally wrongful act is under an obligation (Article 30
ILC):
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(a) To cease that act, if it is continuing;

(b) To offer appropriate assurances and guarantees of non-repetition, if circumstances so
require.
Remedies
Reparation – Article 31 ILC

1. The responsible State is under an obligation to make full reparation for the injury caused by
the internationally wrongful act.
2. Injury includes any damage, whether material or moral, caused by the internationally
wrongful act of a State.
Forms of reparation – Article 34 ILC

• Full reparation for the injury caused by the internationally wrongful act shall take the form of
restitution, compensation and satisfaction, either singly or in combination, in accordance with
the provisions of this chapter (set out below).
Restitution – Article 35 ILC

• A State responsible for an internationally wrongful act is under an obligation to make
restitution, that is, to re-establish the situation which existed before the wrongful act was
committed, provided and to the extent that restitution:
(a) Is not materially impossible;
(b) Does not involve a burden out of all proportion to the benefit deriving from restitution
instead of compensation.
Compensation – Article 36 ILC

1. The State responsible for an internationally wrongful act is under an obligation to
compensate for the damage caused thereby, insofar as such damage is not made good by
restitution.
2. The compensation shall cover any financially assessable damage including loss of profits
insofar as it is established.
Satisfaction – Article 37 ILC

1. The State responsible for an internationally wrongful act is under an obligation to give
satisfaction for the injury caused by that act insofar as it cannot be made good by restitution
or compensation.
2. Satisfaction may consist in an acknowledgement of the breach, an expression of regret, a
formal apology or another appropriate modality.
3. Satisfaction shall not be out of proportion to the injury and may not take a form humiliating
to the responsible State.
Interest – Article 38 ILC

1. Interest on any principal sum due under this chapter shall be payable when necessary in
order to ensure full reparation. The interest rate and mode of calculation shall be set so as to
achieve that result.
2. Interest runs from the date when the principal sum should have been paid until the date the
obligation to pay is fulfilled.
Declaration of the Court

• The Court may make an indisputable declaration with respect to the injured State’s rights
(Northern Cameroon Case).
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STATE BASED RESPONSIBILITY – TREATY LAW

A. DOES THE ICJ HAVE JURISDICTION?
• On the facts, the State Parties have made declarations under Article 36(2) of the Statute of
the ICJ accepting the ICJ’s compulsory jurisdiction.
• If the facts do not make it clear whether the ICJ has jurisdiction, we can assume the States
have made the Article 36(2) declaration.
• This declaration has the effect of giving general consent for the ICJ to determine disputes
involving treaties.
• In determining the dispute, the ICJ will apply international conventions establishing rules
expressly recognised by the contesting states (Article 38(1)(a)).
Are there any reservations to ICJ’s jurisdiction?

• States may choose to give acceptance either unconditionally or to qualify their declarations
under Article 36(2) with conditions or reservations (Fisheries Jurisdiction (Spain v Canada)).
• Time conditions: States may place conditions on temporal jurisdiction of the ICJ i.e. when
disputes arise and the length of time in which the ICJ may exercise jurisdiction (Nicaragua
Case).
• Subject matter: States may make reservations to the ICJ’s jurisdiction over certain subject
matters (Norwegian Loans Case).
Effect of reservations
• When both parties have made declarations under Article 36(2), then either party may rely on
the reservations of the other as if they were their own in order to claim that the ICJ does not
have jurisdiction over the dispute (Norwegian Loans Case).
• When the reservations made by two parties to a dispute differ in scope, the reservation
which is narrower prevails in that it constitutes the common will of the parties (Norwegian
Loans Case).
For extra marks

• As per Article 59 of the Statute of the ICJ, the Court’s decision will only bind the parties to this
particular case.
• As per Article 2(3) of the UN Charter, there is an obligation on parties to settle international
disputes peacefully.
B. WHAT IS THE RELEVANT INTERNATIONAL LAW?
• On the facts, the treaty in question is the source of the relevant international law, which
binds the parties.
• Treaties are agreements concluded between states and international organisations that give
rise to obligations and rights between the parties. They may codify or generate customary law
(Article 1 VCLT).
• Written treaties between states are regulated by the Vienna Convention on the Law of
Treaties 1969 (VCLT).
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C. DOES THE STATE HAVE CAPACITY TO ENTER INTO THE TREATY? (RECOGNITION)
• A State does not have capacity to enter into a treaty unless it is deemed a recognised state,
that is, a ‘state as a person of international law’, pursuant to Article 1 of the Montevideo
Convention on the Rights and Duties of States.
• States must possess the following qualifications (Article 1 Montevideo Convention):
(a) A permanent population;
(b) A defined territory;
(c) Government; and
(d) Capacity to enter into relations with other states.
• The political existence of the state is independent of recognition by other states (Article 3
Montevideo Convention).
Estrada Doctrine
• Refer to this doctrine if new government comes into power through a coup d’état or
usurpation.
• Estrada Doctrine states that recognition of a government should be based on its de facto
existence, rather than on its legitimacy.
• So pursuant to the Estrada Doctrine, a group that overthrows the legitimate government can
be recognised as a government nonetheless.
D. IS THE STATE BOUND BY THE TREATY?
Consent to be bound
• A State’s consent to be bound by a treaty may be expressed by a signature, exchange of
instruments constituting a treaty, ratification, acceptance, approval or accession or by any
other means if so agreed (Article 11 VCLT).
• The consent of a state to be bound by a treaty is expressed by ratification (Article 14 VCLT).
• When a party accedes to a treaty, they are consenting to be bound by the treaty (Article 15
VCLT).
Person consenting to be bound on behalf of the State

• A person may represent a State for the purpose of adopting a treaty if that person has full
powers or it appears from the practice of the States concerned that its intention is to
consider that person as representing the State for such purposes (Article 7(1) VCLT).
Signing vs ratifying a treaty

• Where one state is a signatory to the treaty, and the other is merely a party to the treaty
(that is, it has signed but not yet ratified), then apply the VCLT as customary law and not
treaty law.
• Although a state may not be bound by a treaty because they have only signed and not yet
ratified, they are under an obligation not to defeat the object and purpose of the treaty prior
to its entry into force (i.e. its ratification) (Article 18 VCLT).
Reservations
• A state may make a reservation (a unilateral statement) purporting to exclude/modify the
effect of certain provisions of the treaty (Article 2 VCLT).
• A reservation modifies for the reserving State in its relations with that other party the
provisions of the treaty to which the reservation relates to the extent of the reservation
(Article 21 VCLT).
• A state may make a reservation to a treaty unless: (Article 19 VCLT)
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- The reservation is prohibited by the treaty

- The reservation is not amongst accepted reservations specified in the treaty
- The reservation is incompatible with the object and purpose of the treaty
• A party to the treaty may accept or object to reservations: (Article 20 VCLT)
- No acceptance is needed for reservations that are expressly allowed pursuant to the
treaty (Article 20(1) VCLT)
- Acceptance of a reservation by a state brings the treaty into force (Article 20(4)(a) VCLT)
- An objection by a state party to a reservation does not preclude the treaty being entered
into between the objecting and reserving states (Article 20(4)(b) VCLT)
- As soon a state accepts the reservation, the treaty containing the reservation becomes
effective (Article 20(4)(c) VCLT)
- Objections to reservations must be made within 12 months of the reservation, and if no
objections are made within 12 months, then the reservation is taken to be accepted
(Article 20(5) VCLT)
• A state which makes a reservation that has been objected to by other states is still a party to
the rest of the treaty so long as the reservation is compatible with the object and purpose of
the convention (Genocide Case).
• If the objecting state believes that the reservation is incompatible with the object and
purpose of the treaty, then it may regard the treaty as not in effect between itself and the
reserving state (Genocide Case).
• A party may withdraw a reservation or objection at any time in writing (Article 22 VCLT).
E. APPLICATION & INTERPRETATION OF TREATIES
Application
Entry into force of treaty – Article 24 VCLT

• A treaty enters into force as soon as the parties consent to be bound.
Provisional application – Article 25 VCLT

• A treaty is applied provisionally pending its entry into force if the treaty provides for this
(Article 25(1)(a) VCLT), or the parties agree to this (Article 25(1)(b) VCLT).
Good faith – Article 26 VCLT

• Every treaty in force is binding upon the parties and must be performed by them in good
faith.
Internal law and observance of treaties – Article 27 VCLT

• A party may not invoke the provisions of its internal law as justification for its failure to
perform a treaty.
Non-retroactivity of treaties – Article 28 VCLT

• Unless a different intention appears from the treaty, its provisions do not bind a party in
relation to any act or fact which took place or any situation which ceased to exist before the
date of the entry into force of the treaty.
Territorial scope of treaties – Article 29 VCLT

• Unless a different intention appears from the treaty or is otherwise established, a treaty is
binding upon each party in respect of its entire territory.
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Interpretation
General rule of interpretation – Article 31 VCLT

• Treaty must be interpreted in good faith in accordance with the ordinary meaning of its terms
in their context and in the light of its object and purpose (Article 31(1) VCLT).
- Give the words of the treaty their textual/plain meaning (Admissions Case and Aegean
Sea Continental Shelf Case)
• ‘Context’ includes (Article 31(2) VCLT):
- Any agreement between the parties relating to the treaty
- Any instrument which was made by one or more parties in connexion with the conclusion
of the treaty and accepted by the other parties as an instrument related to the treaty.
• Other factors to consider (Article 31(3) VCLT):
- Any subsequent agreement between the parties regarding the interpretation of the
treaty or the application of its provisions
- Any subsequent practice in the application of the treaty which establishes the agreement
of the parties regarding its interpretation
- Any relevant rules of international law applicable in the relations between the parties
Supplementary means of interpretation – Article 32 VCLT

• If there are still elements of ambiguity or obscurity, the treaty may be interpreted with having
regard to the preparatory work of the treaty and circumstances of its conclusion.
F. IS CONSENT TO THE TREATY INVALID?
Non-compliance with domestic law

• A treaty will be invalid where consent to the treaty involves a manifest violation of the state’s
domestic law (Article 46 VCLT).
Restrictions on authority to express consent

• If the authority of a representative to express the consent of a state to be bound by a
particular treaty is subject to a particular restriction, his failure to comply with this restriction
will not make the treaty invalid unless he notified the other state parties of the restriction
prior to his expressing of such consent (Article 47 VCLT).
Error
• A State may invoke an error in a treaty as invalidating its consent to be bound by the treaty if
the error relates to a fact or situation which was assumed by that State to exist at the time
when the treaty was concluded and formed an essential basis of the consent of that State to
be bound by the treaty (Article 48(1) VCLT).
• EXCEPTION: the treaty will not be invalid where the State contributed by its own conduct to
the error or if the circumstances were such as to put that State on notice of a possible error
(Article 48(2) VCLT).
• An error relating only to the wording of the text of a treaty does not affect its validity; article
80 then applies (Article 48(3) VCLT).
Fraud
• A State induced to conclude a treaty by the fraudulent conduct of another negotiating State
may invoke the fraud as invalidating its consent to be bound by the treaty (Article 49 VCLT).
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Corruption of a representative of a State

• If the expression of a State's consent to be bound by a treaty has been procured through the
corruption of its representative directly or indirectly by another negotiating State, the State
may invoke such corruption as invalidating its consent to be bound by the treaty (Article 50
VCLT).
Coercion of a representative of a State

• The expression of a State's consent to be bound by a treaty which has been procured by the
coercion of its representative through acts or threats directed against him shall be without
any legal effect (Article 51 VCLT).
Coercion of a State by the threat or use of force
• A treaty is void if its conclusion has been procured by the threat or use of force in violation of
the principles of international law (Article 52 VCLT).
Treaties conflicting with a peremptory norm of general international law (jus cogens)
• A treaty is void if, at the time of its conclusion, it conflicts with a peremptory norm of general
international law, that is, jus cogens (Article 53 VCLT).
• Jus cogens: a norm accepted and recognised by the international community of States as a
whole as a norm from which no derogation is permitted. For example, genocide and human
trafficking.
Consequences of invalidity:
• If a treaty is invalid it is void, meaning it has no legal force (Article 69(1) VCLT).
• Any acts carried out under the treaty need to be undone, to the extent of returning the
parties to the situation they were in before the treaty if this is possible (Article 69(2)(a) VCLT).
G. HAS THERE BEEN A BREACH OF THE TREATY?
• There is a breach of an international obligation by a State when an act of that State is not in
conformity with what is required of it by that obligation, regardless of its origin or character
(Article 12 ILC).
• An act of a State does not constitute a breach of an international obligation unless the State is
bound by the obligation in question at the time the act occurs (Article 13 ILC).
• Consider whether or not the potential breach goes to the object and purpose of the treaty
(Article 60(3)(b) VCLT).
• Look to the facts in question, and using the rules on treaty interpretation (Articles 31 and 32
VCLT, see above), apply the facts to determine whether there has been a breach.
H. ARE THERE GROUNDS FOR TERMINATING THE TREATY?
Termination of or withdrawal from a treaty – Article 54 VCLT

• The termination of a treaty or the withdrawal of a party may take place in conformity with the
provisions of the treaty; or at any time by consent of all the parties after consultation with the
other contracting States.
Reduction of number of parties to a multilateral treaty – Article 55 VCLT

• Unless the treaty otherwise provides, a multilateral treaty does not terminate by reason only
of the fact that the number of the parties falls below the number necessary for its entry into
force.
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No provision regarding termination, denunciation or withdrawal – Article 56 VCLT

1. A treaty which contains no provision regarding its termination and which does not provide for
denunciation or withdrawal is not subject to denunciation or withdrawal unless:
(a) it is established that the parties intended to admit the possibility of denunciation or
withdrawal; or
(b) a right of denunciation or withdrawal may be implied by the nature of the treaty.
Suspension of the operation of a treaty – Article 57 VCLT

• The operation of a treaty in regard to all the parties or to a particular party may be
suspended:
(a) in conformity with the provisions of the treaty; or
(b) at any time by consent of all the parties after consultation with the other contracting
States.
Suspension of the operation of a multilateral treaty – Article 58 VCLT

1. Two or more parties to a multilateral treaty may conclude an agreement to suspend the
operation of provisions of the treaty, temporarily and as between themselves alone, if:
(a) the possibility of such a suspension is provided for by the treaty; or
(b) the suspension in question is not prohibited by the treaty and:
(i) does not affect the enjoyment by the other parties of their rights under the treaty or
the performance of their obligations;
(ii) is not incompatible with the object and purpose of the treaty.
Termination or suspension implied by conclusion of a later treaty – Article 59 VCLT

1. A treaty shall be considered as terminated if all the parties to it conclude a later treaty
relating to the same subject-matter and:
(a) it appears from the later treaty or is otherwise established that the parties intended that
the matter should be governed by that treaty; or
(b) the provisions of the later treaty are so far incompatible with those of the earlier one that
the two treaties are not capable of being applied at the same time.
2. The earlier treaty shall be considered as only suspended in operation if it appears from the
later treaty or is otherwise established that such was the intention of the parties.
Termination or suspension as a consequence of its breach – Article 60 VCLT

1. A material breach of bilateral treaty by one of the parties entitles the other to invoke the
breach as a ground for terminating the treaty or suspending its operation in whole or in part.
2. A material breach of a multilateral treaty by one of the parties entitles:
(a) the other parties by unanimous agreement to suspend the operation of the treaty in
whole or in part or to terminate it either:
(i) in the relations between themselves and the defaulting State, or
(ii) as between all the parties;
(b) a party specially affected by the breach to invoke it as a ground for suspending the
operation of the treaty in whole or in part in the relations between itself and the
defaulting State;
(c) any party other than the defaulting State to invoke the breach as a ground for suspending
the operation of the treaty in whole or in part with respect to itself if the treaty is of such
a character that a material breach of its provisions by one party radically changes the
position of every party with respect to the further performance of its obligations under
the treaty.
3. A material breach of a treaty, for the purposes of this article, consists in:
(a) a repudiation of the treaty not sanctioned by the present Convention; or
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(b) the violation of a provision essential to the accomplishment of the object or purpose of
the treaty.
Impossibility of performance – Article 61 VCLT

1. A party may invoke the impossibility of performing a treaty as a ground for terminating or
withdrawing from it if the impossibility results from the permanent disappearance or
destruction of an object indispensable for the execution of the treaty. If the impossibility is
temporary, it may be invoked only as a ground for suspending the operation of the treaty.
2. Impossibility of performance may not be invoked by a party as a ground for terminating,
withdrawing from or suspending the operation of a treaty if the impossibility is the result of a
breach by that party either of an obligation under the treaty or of any other international
obligation owed to any other party to the treaty.
Fundamental change of circumstances – Article 62 VCLT

1. A fundamental change of circumstances which has occurred with regard to those existing at
the time of the conclusion of a treaty, and which was not foreseen by the parties, may not be
invoked as a ground for terminating or withdrawing from the treaty unless:
(a) the existence of those circumstances constituted an essential basis of the consent of the
parties to be bound by the treaty; and
(b) the effect of the change is radically to transform the extent of obligations still to be
performed under the treaty.
2. A fundamental change of circumstances may not be invoked as a ground for terminating or
withdrawing from a treaty:
(a) if the treaty establishes a boundary; or
(b) if the fundamental change is the result of a breach by the party invoking it either of an
obligation under the treaty or of any other international obligation owed to any other
party to the treaty.
3. If, under the foregoing paragraphs, a party may invoke a fundamental change of
circumstances as a ground for terminating or withdrawing from a treaty it may also invoke
the change as a ground for suspending the operation of the treaty.
Severance of diplomatic or consular relations – Article 63 VCLT

• The severance of diplomatic or consular relations between parties to a treaty does not affect
the legal relations established between them by the treaty except in so far as the existence of
diplomatic or consular relations is indispensable for the application of the treaty
Emergence of a new peremptory norm of general international law (jus cogens) – Article 64 VCLT
• If a new peremptory norm of general international law emerges, any existing treaty which is
in conflict with that norm becomes void and terminates.
Consequences of termination:
• Termination, unless otherwise agreed, releases the parties from obligations to further
perform the treaty, but does not affect any rights/obligations created through the execution
of the treaty prior to its termination (Article 70(1) VCLT).
Consequences of suspension:
• Parties are released from their obligations to perform the treaty for the period of the
suspension (Article 72(1)(a) VCLT).
• Suspension does not otherwise affect the legal relations between the parties established by
the treaty (Article 72(1)(b) VCLT).
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• During the period of the suspension the parties shall refrain from acts tending to obstruct the
resumption of the operation of the treaty (Article 72(2) VCLT).
I. HAS THERE BEEN A USE OF FORCE?
General prohibition on the use of force

• All Members shall refrain in their international relations from the threat or use of force
against the territorial integrity or political independence of any state, or in any other manner
inconsistent with the Purposes of the United Nations (Article 2(4) UN Charter).
Indirect force
• An indirect use of force can amount to a breach of Article 2(4) UN Charter.
• Indirect force is the organisation of irregular forces for incursion into territory of another
state or participation in civil strife of another state.
• Nicaragua Case (Merits)
- ICJ made various determinations on whether certain actions by the US amounted to an
indirect illegal use of force.
- Breaches: laying of mines, attacks on ports, provision of weapons and training to Contras
were all breaches of use of force by US.
- Non-Breaches: military manoeuvres close to the border and mere provision of funds was
not considered a breach of prohibition of use of force, but did amount to breach of non-
intervention principle. Humanitarian assistance is generally not illegal so long as it is
provided equally to rebels and community in need.
Threat of force
• A threat of the use of force may be a breach of Article 2(4) UN Charter.
• Examples of a 'threat of force':
- Nicaragua Case (Merits): US military manoeuvres near Nicaragua border did not amount
to a threat of use of force.
- Guyana v Suriname: orders of a Suriname patrol boat to a Canadian oil rig in Guyana to
leave in 12 hours or 'consequences would be theirs' held to be a threat.
Principle of non-intervention
• States cannot intervene in matters within the domestic jurisdiction of another State (Article
2(7) UN Charter; Nicaragua).
• Intervening in the domestic matters of another State amounts to a breach of international
Law.
Exceptions to the use of force
Self-Defence
Charter).
• Armed-attack:
- Self-defence is only available when there has been an armed attack made by another
state on the state that is invoking self-defence (Nicaragua Case (Merits)).
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- It is not an armed attack if the state merely gives assistance to rebels by providing
weapons and logistical support (Nicaragua Case (Merits)).
• Grave use of force:
- To constitute an armed attack, it must be of such magnitude and duration that that it is a
grave violation of prohibition on use of force (Armed Activities Case).
- Relatively minor uses of force against assets of a state, such as a flagged ship on the high
seas, may not constitute an armed attack if they are not sufficiently serious or grave (Oil
Platforms Case).
• Necessary and proportionate:
- Any use of force in self-defence must be both a necessary and proportionate response to
the original armed attack on the state (Nicaragua Case (Merits)).
- Necessity: act of self-defence must be a response to an instant and overwhelming
threat/attack; must be of utmost necessity in the moment (Caroline Case).
- Proportionate: defending state can only do what is reasonably necessary in order to
negate a threat of attack (Caroline Case).
- Armed Activities Case: even if Uganda could claim self-defence, its actions in engaging in
long term occupation of a huge portion of Congo was hugely disproportionate to the
relatively minor cross-border raids by armed rebels from Congo.
Security Council Authorisation

• The Security Council shall determine the existence of any threat to the peace, breach of the
peace, or act of aggression and shall make recommendations, or decide what measures shall
be taken in accordance with Articles 41 and 42, to maintain or restore international peace
and security (Article 39 UN Charter).
• The Security Council may decide what measures (other than the use of force) are to be used
to give effect to its decisions. These may include complete or partial interruption of economic
relations and of rail, sea, air, postal, telegraphic, radio, and other means of communication,
and the severance of diplomatic relations (Article 41 UN Charter).
• Where such measures are deemed to be inadequate, the Security Council may turn to the use
of force if it is necessary to maintain or restore international peace and security. These may
include demonstrations, blockade, and other operations by air, sea, or land forces of
Members of the United Nations (Article 42 UN Charter).
Humanitarian intervention
• The right of states to take unilateral action by intervening in foreign states to prevent the
further commission of grave human rights abuses by that foreign state against its own people
• NOTE: this is not an affirmative rule of customary international law due to inconsistency of
application and lack of international consensus
• For example, the use of force to prevent further acts of war crimes and genocide.
• Criteria for intervention:
- There must be convincing and objective evidence generally accepted by international
community of extreme humanitarian distress.
- There must be no objectively clear or practicable alternative to use of force to save lives.
- Any use of force must be both necessary and proportionate in the achievement of
humanitarian goals.
J. IS THE STATE RESPONSIBLE FOR THE BREACH? (ATTRIBUTION)
• States will be held responsible for breaches of international obligations perpetrated by organs
and agents of the State, which are attributable to the State (Rainbow Warrior Case).
• A State is responsible for its internationally wrongful acts (Article 1 ILC).
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• An international wrongful act is an act or omission that is attributable to a State, and

constitutes a breach of an international obligation of the State (Article 2 ICL).
• The characterisation of an act of a State as international wrongful is governed by international
law (i.e. treaty or customary law) (Article 3 ILC).
Conduct of organs of a State – Article 4 ILC

1. The conduct of any State organ shall be considered an act of that State, whether the organ
exercises legislative, executive, judicial or any other functions, whatever position it holds in
the organisation of the State, and whatever its character as an organ of the central
Government or of a territorial unit of the State.
2. An organ includes any person or entity which has that status in accordance with the internal
law of the State.
• Applies to any act of an organ at any level of state bureaucracy acting in its public capacity
that is the (Special Rapporteur Case).
Conduct of persons or entities exercising elements of governmental authority – Article 5 ILC

• The conduct of a person or entity which is not an organ of the State under article 4 but which
is empowered by the law of that State to exercise elements of the governmental authority
shall be considered an act of the State, provided the person or entity is acting in that capacity
in the particular instance.
Conduct of organs placed at the disposal of a State by another State – Article 6 ILC
• The conduct of an organ placed at the disposal of a State by another State shall be considered
an act of the former State if the organ is acting in the exercise of elements of the
governmental authority of the State at whose disposal it is placed.
Excess of authority or contravention of instructions – Article 7 ILC

• The conduct of an organ of a State or of a person or entity empowered to exercise elements
of the governmental authority shall be considered an act of the State if the organ, person or
entity acts in that capacity, even if it exceeds its authority or contravenes instructions.
- Caire Claim (France v Mexico): Mexico liable even though officers were acting outside
their authority because their acts were enabled by their official status and access to
means due to their position.
Conduct directed or controlled by a State – Article 8 ILC

• The conduct of a person or group of persons shall be considered an act of a State if the
person or group of persons is in fact acting on the instructions of, or under the direction or
control of, that State in carrying out the conduct.
• The State will have ‘directed or enforced the perpetration of the acts contrary to’
international law where the State exercised ‘effective control’ over said conduct (Genocide
Convention case).
• Tests for the degree of control that needs to be exercised by the state over the person/group
for liability to arise:
- Effective Control (dominant test): a state needs to do more than support or have a
dependent relationship; they need to have direct and active control over person/group's
actions (Nicaragua Merits Case)
- Overall Control: lower burden of control for state responsibility; state does not need
complete control over the direction and operations of person/group, but needs
significant degree of control over the financing, resourcing, planning and general strategy
(Prosecutor v Tadic)
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Conduct carried out in the absence or default of the official authorities – Article 9 ILC
• The State is liable for a person/group who exercises elements of governmental authority in
absence of actual governmental authority and where circumstances demand the exercise of
those elements of authority.
• Applies where there has been a break down in law and order and the state is not able to
assert its authority in a certain way or area, and people have stepped in to provide authority
and government functions (Yeager v Iran).
Conduct of an insurrectional or other movement – Article 10 ILC

• The conduct of an insurrectionist movement which becomes the new government of a state
is an act of the state. The new government is therefore responsible for the acts/omissions it
committed while in process of revolution/insurrection.
Conduct acknowledged and adopted by a State as its own – Article 11 ILC

• Conduct which is not attributable to a State under the preceding articles shall nevertheless be
considered an act of that State if and to the extent that the State acknowledges and adopts
the conduct in question as its own.
- US Diplomatic & Consular Staff in Tehran: Iran held responsible for occupation of US
embassy by private militants as approval of the conduct was given by the Ayatollah, as
well as support being given to them and the decision made to perpetuate the occupation
taken by the Iranian state.
Use of territory to cause harm

• States have an obligation of due diligence not to allow its territory to be used to cause harm
to another State (Corfu Channel).
Responsibility of a State in connection with the act of another State
Aid or assistance – Article 16 ILC

• A State which aids or assists another State in the commission of an internationally wrongful
act is internationally responsible for doing so if:
act; and
Direction and control exercised – Article 17 ILC

• A State which directs and controls another State in the commission of an internationally
wrongful act is internationally responsible for that act if:
act; and
Coercion of another State – Article 18 ILC

• A State which coerces another State to commit an act is internationally responsible for that
act if:
(a) The act would, but for the coercion, be an internationally wrongful act of the coerced
State; and
(b) The coercing State does so with knowledge of the circumstances of the act.
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K. ARE THERE CIRCUMSTANCES PRECLUDING WRONGFULNESS? (DEFENCES)
• A state is not liable for an act/omission that constitutes a breach of international legal
obligation if it can prove the existence/application of one of the following defences:
Consent – Article 20 ILC

• The wrongfulness of a State’s act will be excused where a State has consented to an act
performed by another State, which would otherwise constitute a breach of an obligation.
- For example: Solomon Islands consented and supported deployment of Australian troops.
The presence of the troops would have otherwise been illegal without the consent.
Self-defence – Article 21 ILC

• The wrongfulness of a State’s act will be excused where the State has acted in self-defence, in
conformity with Article 51 of the UN Charter.
Charter).
Countermeasures – Article 22 ILC

• The wrongfulness of a State’s act will be excused where the act constitutes a countermeasure
taken against a State in accordance with Articles 49-54 of ILC.
• Countermeasures consist of the non-performance by one State of its international obligations
in order to induce another State to comply with its own obligations (Articles 49(1) and 49(2)
ILC)
• A State proposing to take countermeasures must first call on the other State to comply with
its obligations and then notify that State of the decision to take countermeasures and offer to
negotiate with that State (Article 52 ILC)
• Countermeasures must:
- Not constitute a threat or use of force (Article 50(1)(a) ILC)
- Not derogate from fundamental human rights (Article 50(1)(b) ILC) or peremptory norms
(Articles 26 and 50(1)(d) ILC)
- Be proportionate with the injury suffered, taking into account the gravity of the
internationally wrongful act and the rights in question (Article 51 ILC; Air Services
Agreement case)
- As far as possible, be taken in a way which allows for the resumption of the performance
of obligations in the future (Article 49(3) ILC)
- Be terminated once the responsible State has complied with its obligations (Article 53 ILC)
- Cease if the dispute is taken to a Court or Tribunal (Article 52(3)(b) ILC)
Force majeure – Article 23 ILC

1. The wrongfulness of a State’s act will be excused if it is due to force majeure, that is the
occurrence of an irresistible force or of an unforeseen event, beyond the control of the State,
making it materially impossible in the circumstances to perform the obligation (Rainbow
Warrior Case).
2. Force majeure cannot be relied upon where:
(a) The State’s own conduct has caused the situation;
(b) The State has assumed the risk of that situation occurring.
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Distress – Article 24 ILC

1. The wrongfulness of an act of a State will be excused if the author of the act in question has
no other reasonable way, in a situation of distress, of saving the author’s life or the lives of
other persons entrusted to the author’s care (Rainbow Warrior Case).
2. Distress cannot be relied upon where:
(a) The State has created the situation of distress;
(b) The act in question is likely to create a comparable or greater peril.
Necessity – Article 25 ILC

1. The wrongfulness of an act of a State will be excused if it was necessary to take the action.
The act must comply with the following:
(a) Is the only way for the State to safeguard an essential interest against a grave and
imminent peril; and
(b) Does not seriously impair an essential interest of the State or States towards which the
obligation exists, or of the international community as a whole.
2. Necessity cannot be relied upon if:
(a) The international obligation in question excludes the possibility of invoking necessity; or
(b) The State has contributed to the situation of necessity.
Compliance with peremptory norms – Article 26 ILC

• The wrongfulness of an act of a State will NOT be excused if it breaches an obligation arising
under a peremptory norm of general international law.
L. ARE THERE ANY CONSEQUENCES OF THE STATE’S RESPONSIBILITY? (REMEDIES)
• There are legal consequences for a State’s international wrongful act (Article 28 ILC).
• A State is to continue the performance of its obligation it has breached (Article 29 ILC;
Gacikovo-Nagymoros).
• The State responsible for the internationally wrongful act is under an obligation (Article 30
ILC):
(a) To cease that act, if it is continuing;
(b) To offer appropriate assurances and guarantees of non-repetition, if circumstances so
require.
Remedies
Reparation – Article 31 ILC

1. The responsible State is under an obligation to make full reparation for the injury caused by
the internationally wrongful act.
2. Injury includes any damage, whether material or moral, caused by the internationally
wrongful act of a State.
Forms of reparation – Article 34 ILC

• Full reparation for the injury caused by the internationally wrongful act shall take the form of
restitution, compensation and satisfaction, either singly or in combination, in accordance with
the provisions of this chapter (set out below).
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Restitution – Article 35 ILC

• A State responsible for an internationally wrongful act is under an obligation to make
restitution, that is, to re-establish the situation which existed before the wrongful act was
committed, provided and to the extent that restitution:
(a) Is not materially impossible;
(b) Does not involve a burden out of all proportion to the benefit deriving from restitution
instead of compensation.
Compensation – Article 36 ILC

1. The State responsible for an internationally wrongful act is under an obligation to
compensate for the damage caused thereby, insofar as such damage is not made good by
restitution.
2. The compensation shall cover any financially assessable damage including loss of profits
insofar as it is established.
Satisfaction – Article 37 ILC

1. The State responsible for an internationally wrongful act is under an obligation to give
satisfaction for the injury caused by that act insofar as it cannot be made good by restitution
or compensation.
2. Satisfaction may consist in an acknowledgement of the breach, an expression of regret, a
formal apology or another appropriate modality.
3. Satisfaction shall not be out of proportion to the injury and may not take a form humiliating
to the responsible State.
Interest – Article 38 ILC

1. Interest on any principal sum due under this chapter shall be payable when necessary in
order to ensure full reparation. The interest rate and mode of calculation shall be set so as to
achieve that result.
2. Interest runs from the date when the principal sum should have been paid until the date the
obligation to pay is fulfilled.
Declaration of the Court

• The Court may make an indisputable declaration with respect to the injured State’s rights
(Northern Cameroon Case).
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PEACEFUL SETTLEMENT OF INTERNATIONAL DISPUTES

• A state may resolve a dispute through:
1. Diplomatic procedures: attempt to resolve differences either by the contending parties
themselves or with the aid of other entities in discussion and fact-finding
2. Adjudication: involves the determination by a disinterested third party of the legal and
factual issues involved, either by arbitration or the decision of judicial organs
• Settlement of international disputes is governed by ICJ Statute 1945
• States are obliged to settle international disputes by peaceful means so as to not endanger
international peace and security (Article 2 UN Charter)
Methods of international dispute resolution
• Parties shall first seek a solution by negotiation, enquiry, mediation, conciliation, arbitration,
judicial settlement, resort to regional agencies or arrangements, or other peaceful means in a
dispute endangering international peace and security (Article 33(1) UN Charter)
• States have a free choice to determine which methods to use to resolve disputes. The
methods are often contained within the treaty.
Negotiation
• Interest based, rather than position based
• Involves discussion between disputing parties with the view to reconcile divergent opinions
• Does not involve a third party
• A negotiation will not necessarily reach an agreement, but it shows the intentions of the
parties to reconcile their dispute (German External Debts)
• States are obliged to partake in negotiations in good faith (Use of Nuclear Weapons)
Mediation
• Involves the use of an impartial third party to encourage parties to settle the dispute
• The mediator will help identify the issues in dispute and help the parties to reach a solution to
resolve the dispute
• A useful dispute resolution mechanism where there is an inequality of power between
disputing parties
• The mediator’s findings are not legally binding, however parties may choose to make them
legally binding
Conciliation
• Involves a third party investigation of the dispute where they will hear submissions from
parties and then create a report with suggestions for a settlement
• Reports are only proposals and are not binding
Inquiry
• Involves the commission of an inquiry by reputable observers to ascertain the precise facts in
contention
• Usually pursued where there is non-legal technical detail that needs to be clarified
• Very rarely used, and usually pursued for airline/maritime disasters where specific expertise is
needed
Arbitration
• Involves the settlement of disputes between states through a binding award (decision)
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• A quasi-judicial process, where the parties submit to the jurisdiction of the Arbitration
Commission
• The decision is binding on both parties
• When compared to ICJ proceedings, parties have more autonomy over proceedings and the
structure of the Arbitral Tribunal and identity of individual Arbitrators
• Less expensive and less formal process when compared to ICJ proceedings
Judicial Settlement – International Court of Justice (ICJ)

• ICJ is a principal judicial organ of the UN functioning in accordance with its statute (Article 92
UN Charter)
• ICJ will decide disputes submitted before it in accordance with international law (Article 38(1)
ICJ Statute)
• The ICJ is composed of 15 permanent members elected by General Assembly and Security
Council. Members are elected for nine years and can be re-elected.
• The ICJ’s function is to ‘state the law’ (Northern Cameroons)
• There is no restriction to the subject matter of legal issues in which the ICJ may have
jurisdiction to hear and jurisdiction is founded on the consent of the parties (Nicaragua)
• Remedy: the ICJ may make a declaratory judgement that international law has been breached
• Each UN member must comply with an ICJ decision to which it is a party (Article 94(1) UN
Charter)
• ICJ decision has no binding force except between the parties and in respect of that particular
case (Article 59 ICJ Statute; LaGrand Case)
29

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Public international law exam guide

Public International Law (University of Technology Sydney)

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PUBLIC INTERNATIONAL LAW

A. What is the crime being prosecuted?

STATE BASED RESPONSIBILITY – CUSTOMARY INTERNATIONAL LAW

A. Does the ICJ have jurisdiction?

STATE BASED RESPONSIBILITY – TREATY LAW

A. Does the ICJ have jurisdiction?

PEACEFUL SETTLEMENT OF INTERNATIONAL DISPUTES

Note: all legislation refers to the following:

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B. BASIS FOR JURISDICTION

Protective (security) Principle

Passive Personality Principle

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C. IMMUNITY FROM JURISDICTION

Functional immunity (ratione materiae)

Personal immunities (ratione personae)

• Immunity conferred by virtue of a person’s status or office.

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Head of State Immunity

D. INTERNATIONAL LIABILITY OF INDIVIDUALS

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STATE BASED RESPONSIBILITY – CUSTOMARY INTERNATIONAL LAW

Are there any reservations to ICJ’s jurisdiction?

For extra marks

B. WHAT IS THE RELEVANT INTERNATIONAL LAW?

Constant and uniform usage

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Accepted as law (opinio juris)

C. IS THE STATE BOUND BY THE CUSTOMARY LAW?

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D. HAS THERE BEEN A BREACH OF THE CUSTOMARY INTERNATIONAL LAW?

E. HAS THERE BEEN A USE OF FORCE?

General prohibition on the use of force

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Exceptions to the use of force

Security Council Authorisation

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F. HAS THERE BEEN A MISTREATMENT OF FOREIGN NATIONALS?

G. IS THE STATE RESPONSIBLE FOR THE BREACH? (ATTRIBUTION)

Conduct of organs of a State – Article 4 ILC

Conduct of persons or entities exercising elements of governmental authority – Article 5 ILC

Excess of authority or contravention of instructions (acts ultra vires) – Article 7 ILC

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Conduct directed or controlled by a State – Article 8 ILC

Conduct of an insurrectional or other movement – Article 10 ILC

Conduct acknowledged and adopted by a State as its own – Article 11 ILC

Use of territory to cause harm

Responsibility of a State in connection with the act of another State

Aid or assistance – Article 16 ILC

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Direction and control exercised – Article 17 ILC

Coercion of another State – Article 18 ILC

H. ARE THERE CIRCUMSTANCES PRECLUDING WRONGFULNESS? (DEFENCES)

Consent – Article 20 ILC