Public International Law MOOC Introduction

PUBLIC INTERNATIONAL LAW MOOC P.
D’ARGENT
PUBLIC INTERNATIONAL LAW
Week 1: Introducing international law

International law and humanity
Currently, there are more than twice as many human beings on the planet than there are seconds in a
life of one hundred years. In other words: would you live one hundred years, and would you spend
your entire long life of one hundred years, from birth to death, only paying one second attention to
every other fellow human being without eating, sleeping, playing, learning, working, and all the rest
– that would still not be enough; you would still only have met, for one second each, with less than
half of humanity.
So, to a large extent, humanity (understood as the collection of living human beings) remains an
abstraction. We live, we die, and what do we really know and experience about humanity? Only a
tiny fraction of it. However, we can all relate to each other, we all participate in humanity, and since
1948, the Universal Declaration of Human Rights (UDHR) proclaims that “all human beings are
born free and equal in dignity and rights”. However, we know that it is far from being a given in all
parts of the world, for each and every one of our fellow humans.
In this course, we are not going to speak much about humanity and about human rights. Rather, the
course will be mostly about abstract legal entities, like States or international organizations and
their relations under the law. International law may be mainly about relations between States, but,
beyond the mediation of States, international law is ultimately about us, human beings. It is about
us living separately in States, but it is about us living together on this planet.
As the planet shrinks and the world population expands, never before has it been so important to
educate in international law and to raise the public awareness about it.
International law around us

When one thinks about international law, various images and ideas may pop in your mind: you may
think at war and peace between nations, ongoing humanitarian crisis, or other global issues, like
global warming or the protection of the environment, the protection of basic human rights, or even
despicable international crimes. On a more peaceful note, you may just think at your latest long-
distance flight, getting a visa at the embassy of the country you visited, or at the fruits from exotic
places you bought yesterday at the supermarket.
Or just take your smartphone and look at it. Imagine, besides of course the incredible engineering
and technology that made it, imagine the amount of law that was indeed going into it: not only the
fact that you bought it and that you have also contracted with a phone company, which are largely
issue of domestic law, but also the oceans, the phone has travelled after having been manufactured,
the minerals that had to be extracted to make the components and that were exported, the patents
that protect the software in all jurisdictions, the agreements that have been contracted in order for
the data that you download to travel around the planet at the speed of light, etc.
As much as our daily lives are constantly influenced and shaped by rules of domestic law that go
most of the time unnoticed, they are also increasingly influenced and shaped by rules of
M. DUPONCHEEL -1- 2016-2017

PUBLIC INTERNATIONAL LAW MOOC P. D’ARGENT
international law. At a time of globalization, this does not come as a surprise: the more we interact
with each other, the more we need common rules to sustain that interaction and make it predictable.
Law mediates between us and offers us a common ground for action. And the complexity resulting
from interaction calls for more law.
International law also raises tons of questions: what is that law that transcends national settings?
How does it come to existence? How can it be upheld? What can be done when it is not respected?
And also: when you look around and see how much international law is at the same time
hypocritically invoked and constantly disregarded by governments, is it really law? Is it possible to
have international law as law, or are international relations actually governed by nothing else but
power and might? And where is justice in this world? Is not justice the purpose of any law? ...
Those are the kind of questions we are going to try to answer in this course.
International law and its various names

What does “public international law” mean?
We use the adjective “public” to describe international law in contrast to “private international
law”. Private international law is the law applicable to the relations between individuals and
corporations when those relations are international, i.e. when they are not entirely located in one
State (e.g. a French man marries an Argentinian lady in Moscow, they settle and buy a flat in South
Korea, have kids in Australia and finally divorce in South Africa). It is sometimes called “conflict
of laws” because it is about resolving the conflict between the various domestic laws and
jurisdictions that could potentially apply in a case, and choosing the right one. That choice is
usually to be made by application of domestic rules or by rules common to States and contained in
treaties that those States have contracted.
Private international law is a very important field of law today, but this course will not address
those transnational private law issues. Rather, the course will address the law applicable between
public entities that are engaged in international relations. It will be about the law of what the
newspapers call the “international community”.
Public international law (or, to make it short, international law) is sometimes called “the law of
nations”. Let’s get back in time. In Roman times, Roman law (“jus civile”) was applicable between
the citizens of Rome, while the law applicable between the Roman Empire and the tribes and
kingdoms of the rest of the world was called “jus gentium”. Jus gentium was common to both the
Romans and the rest of the world. It was said to be common to both because it was said to derive
from reason and was close to natural law. Jus gentium was human, whereas jus civile was specific
to a people, the Roman people. Today, international law is still referred to as “le droit des gens” in
French, or “Völkerrecht” in German or “Volkerrecht” in Dutch, which are all translations of the old
jus gentium.
Treaties between kingdoms, cities and empires may have existed for thousands of years. In fact, one
of the oldest recorded treaty is the peace treaty of Kadesh, which had been contracted around 1259
BC between the Hittites and the Egyptians. However, the intellectual and structural foundation of
international law as we know it today is more recent.

A foundational moment
It is usually considered that modern international law was born in 1648 out the peace treaties of
Osnabruck and Munster. By those two treaties, an end was put to the Thirty Years War that raged
within what was still considered in Europe as the Holy Roman Empire. They also put an end to the
Eighty Years War between catholic Spain and reformed Netherlands, with Spain finally recognizing
the independence of the Dutch Low Countries.
The reason for what is called the “peace of Westphalia” to be used as the starting point of modern
international law is that the paradigm underlying the peace treaties was the equal sovereignty of
States on their respective territories and without a higher authority above them.
European nations had fought against each other for over thirty years and none had really won the
war, which was largely fought along religious lines. States and nations were exhausted, new nations
had been born and the basic social model that was used to bring peace to Europe was very simple:
in order to live together in peace, States would live separately, each of them being sovereign on its
own territory and equal to one another. As a result, two higher authorities that had shaped European
history for centuries lost much of their influence:
- On the temporal side, the Emperor of the Holy Roman Empire;
- On the spiritual side, the Pope.
The legal bounds of hierarchy, allegiance and authority that existed between the Emperor and the
Pope on the one hand and the European princes and monarchs on the other were definitively
replaced by a new understanding of the relations between the kings and princes. That new
understanding is based on equal sovereignty. As a result, the legal order stemming from such
paradigm is repugnant to any higher law imposed from above on the various States. The model of
equal sovereignty is a model of a liberal legal order where each polity adopts for itself its own laws
and eventually contracts with other equal entities to create obligations between them. But none of
them has the authority to impose obligations on the other or to command that other entity. Such
legal order is characterized by its horizontality, as opposed to the verticality of an imperial legal
order based on the hierarchy between the various legal subjects. International law is horizontal and
decentralized.
This basic structure of international law has not much changed over the centuries. Article 2(1) of
the United Nations Charter proclaims that “The Organization is based on the principle of the
sovereign equality of all its Members”, while Article 2(7) protects what is called the “domestic
jurisdiction” of States from outside interference.
What is quite extraordinary is that, if the composition and the concerns of the international
community have of course radically changed over the centuries, nothing has so far fundamentally
replaced the Westphalian legal model based on equal sovereignty.
From Westphalia to Versailles

Born in Europe, the public law of Europe established by the peace of Westphalia spread around the
world to become the fundamental paradigm of international law. Indeed, equal sovereignty of States
as the basic social structure was adopted both by the thirteen American colonies in 1776 and, a few
decades later, by Spain and Portugal in the context of their Latin-American colonies.
In 1815, at the Congress of Vienna, the turmoil resulting from the French revolution and the
Napoleonic wars was put to rest by an exercise of restoration at the domestic level and by the re-
establishment of a balance of powers, whereby one State alone was not sufficiently powerful to put
in danger the peace on the continent.
In 1885, at the Congress of Berlin, European States shared and apportioned between them the
African continent, extending to their colonial domination the logic of balance of power between
them.
And then, in 1914, the balance of powers proved its limits, failing to keep peace. The Great War
raged for four long years only to leave the continent on its knees, both materially and
spiritually. Centuries of progress, science and industrial development were turned into a terrible war
machine. It was a total war, and the first international war in which citizens of all social classes (not
only professional soldiers) were called to fight and die.
The war ended because of the late involvement of the United States of America in the war, which
tilted the stand-off in favor of the Allied and Associated powers. Germany was finally defeated,
together with the Austrian-Hungarian Empire and the Ottoman Empire.
After the war, the peace was largely based on the famous Fourteen Points made public by the
United States President Wilson in January 1918. It resulted in the peace treaty of Versailles and
the other peace treaties concluded with the central powers in 1919.
Germany, which became a republic and had to pay war reparations, lost all of its colonies: Alsace-
Lorraine was restituted to France; the Austrian-Hungarian Empire and the Ottoman Empire were
dismantled.
On the ruins of the Austrian-Hungarian Empire, new States were created on the basis of the
principle of nationalities. Poland, which had disappeared as a State for 123 years, was re-
established.
Furthermore, and for the first time in human history, an international organization was set up for the
purpose of maintaining international peace and security. That organization was called the “League
of Nations” and its Covenant was the first part of the peace treaty of Versailles.
However, when you think of it, Versailles was a very ambivalent moment for international law:
- It was a peace treaty and it embodied the hope that international law, notably through the
establishment of the League of Nations, could bring peace to the world. And, as we know,
that promise of international law dramatically failed only 20 years later. After the rejection
of the peace treaty by the US Congress and the isolation in which Western powers had kept
the young Soviet Union since the revolution of 1917, the League of Nations was born as a
very weak organization and it proved incapable of reacting to the challenges posed by
fascist Italy, Imperial Japan and Nazi Germany in the 1930s.
- Furthermore, and despite presenting itself as an instrument of peace and justice between
nations and as the beginning of a new era, the Treaty of Versailles was also an instrument of
continued domination, therefore pointing to the deep ambivalence of international law. It
was of course an instrument of domination over Germany, but if you look around the table1,
you only see faces of white men (except for the representative of Japan and an Indian
Maharajah as obedient servant of the British empire).
1
“The Signing of Peace in the Hall of Mirrors, Versailles, 28th June 1919” (painting by William Orpen).

That was the world, and the world order, in 1919. Of course, today, the face and the concerns of the
international community have dramatically changed. But the ambivalence of international law, both
as a promise of peace and justice, and an instrument of domination, remains.
From Versailles onwards

From a legal point of view, the inter-war period was marked by another turning point, which added
to the League of Nations’ rules limiting the freedom of States to resort to the use of force to settle
their disputes. However, those rules did not completely outlaw war as an instrument of national
policy. What was called then “the outlawry of war” was achieved by the Treaty of Paris of 19282.
About ten years later, however, international law bitterly proved its limits again. Poland was
invaded by Nazi Germany on 1 September 1939 and Eastern Poland was invaded two weeks later
by the Soviet Union.
The Second World War began. It ended with the total victory over Germany, its occupation and
division, as well as the division of Europe. Detached from any peace treaty, the Charter of the
United Nations was signed in San Francisco on 26 June 1945 with – as the first sentence of the
preamble emphatically stresses – the determination and the very noble ambition “to save succeeding
generations from the scourge of war, which twice in our lifetime has brought untold sorrow to
mankind”.
War with Germany had ended on 8 May 1945, but war with Japan was still raging, only to end with
the atomic bombs dropped on the cities of Hiroshima and Nagasaki on 6 and 9 August 1945.
Quickly after the Second World War, the Cold War divided the great victorious powers and
paralyzed the United Nations to a large extent.
However, during the late 1950s and throughout the 1960s, one major achievement of the UN was to
foster the decolonization of Asia and Africa. A new principle of international law emerged, that
radically changed the face and the agenda of the international community: it is the right of peoples
to self-determination, understood as the right of European colonies to become independent. But
then again, and despite the revolutionary aspect of the right to self-determination, the basic structure
of international law did not change: colonies wanted to become what their former masters were,
they wanted to become States.
The fundamental paradigm of international law remained the equal sovereignty of States. In many
places around the world, the decolonization was a bloody and messy process. Not only because
some colonial powers were fiercely reluctant to relinquish their domination, but also because it
allowed for the East and the West to fight wars by proxy in order to try to attract within their
respective spheres of influence the newly born States.
And then came some years of detente during which Washington and Moscow tried to accommodate
their deep differences and eventually also to limit their respective arsenals.
With the liberation of Nelson Mandela in February 1990, with the reunification of Germany a few
months later and with the collapse of the Soviet Union in 1991, the Cold War gradually came to
an end and it opened an intensive era of cooperation between States. When Iraq invaded Kuwait
in August 1990, the UN Security Council stood together and acted jointly, proving a new resolve
and opening a new era for the revival of the UN and for the development of international law.
2
Also called the Briand-Kellogg Pact as it was a joint idea of the French and the American foreign affairs ministers.

But international law was not only a matter of peace and security in the narrow sense of the world.
Three fundamental issues – development, human rights and the protection of the environment –
created a new sense of interdependence between the nations of the world, gave new dimensions to
the notion of peace and security and directly challenged the paradigm of State sovereignty on which
international law had so far been built and which international law had protected. The last decade of
the 20th century saw the creation, for instance3, of the World Trade Organization, of the Yugoslav
and Rwandan International Criminal Tribunals, of the International Criminal Court, of the
Organization for the Prohibition of Chemical Weapons. It saw also the creation of the Kyoto
Protocol on climate change, the Rio Summit on sustainable development and the establishment of
many peace-keeping operations around the world. So, despite terrible failures like the genocide in
Srebrenica and in Rwanda, the end of the 20th century was marked by a deep sense of
multilateralism and common purpose.
The development of TV networks, of the Internet, telecommunications and social media, together
with a growing air transport industry and the expansion of international trade, all that provided for a
new era of globalization. True, the United States of America established itself as the only
superpower, but it was largely seen as a benevolent superpower, a power which was positively
engaged with the rest of the world and which strived with the rest of the world to improve it.
All that suddenly came to an end with the terror attacks of 9/11 and, even more, with the invasion
of Iraq in March 2003 by the US and UK forces. Multilateralism came to a halt and was replaced
by unilateralism, sometimes clothed in so-called coalitions of the willing.
But coalitions also proved to have limits and more problems arose. While coalitions come and go,
institutions are resilient and their international law instruments remain. It is of course too soon to
tell and nobody can read in the future, but, despite its pitfalls and its limits, international law
remains one (if not the only) viable tool that can provide legitimacy for action in the world and
foster coexistence and cooperation between States.
Coexistence and cooperation: that is what International law is fundamentally about. They may
sound very modest purposes compared to a prophetic agenda of peace and justice in the world, but
what a difference coexistence and cooperation make and how essential they are in the pursuit of
those higher ideals!
International law as a common language

One of the main reasons why international law is an instrument of coexistence and cooperation
between States is because it provides them with a common language. States speak the language of
international law.
States (and peoples within States) may have very different and diverging political discourses,
cultural references, economic priorities and spiritual understandings of life. However, one (if not
the only) normative language that brings them together is international law. States will always try to
justify their actions in light of international law. Maybe those justifications will not be correct and
their actions will be in breach of international law, either because the facts do not match the law
they invoke, or because their interpretation of the law is wrong. But no State ever says publicly: “I
3
Just to name a few of institutions and a few instruments that are based on the fundamental idea that coexistence and
cooperation between nations are best served and achieved through the development of international law, and at the same
time that sovereignty must be transcended in order to adequately address common challenges.

very well know that what I am doing is in contradiction with international law, but I could not care
less”.
Of course, any State would use a more diplomatic language to say that. However, States never say
things like that in substance and in public. They will always try to give reasons for their actions, and
reasons that make sense under international law. One thing is to say that you consider what you do
to be politically good and desirable (but that is obvious and the other States will respond they
simply are of a different view). Another thing is to say, additionally, that it is legitimate under
international law.
From that moment onwards, the other States will be able to react and respond to the legal argument
presented in support of the action they oppose (or agree with). International law will serve as a
mediating language, a professional language of justification, and political intentions and goals
will need to be phrased, using the language of international law. In that sense, (international) law
domesticates politics.
Read the following speeches by President Obama and President Putin and see how they both rely on
international legal arguments to enhance the legitimacy of their respective policy:
- Remarks by the US President in address to European youth, Palais des Beaux-Arts,
Brussels, Belgium, 26 March 2014;
- A Plea for Caution From Russia, What Putin Has to Say to Americans About Syria,
Vladimir Putin, 11 September 2013, New York Times.
Week 2: Setting the international law stage

Setting the stage
Following the peace of Westphalia, and for about three hundred years, States remained the only
actors of international relations and also the only subjects of international law. This enduring
reality is reflected in the adjective “international”, which is used to characterize the relations and
the law existing outside the internal and domestic context of every State.
States were the founders and the masters of international law. They created that legal order for
themselves: its norms and rules were created by them, and those norms and rules were applicable
among them, and among them only. And legal doctrine affirmed for a long time that, by essence,
international law was necessarily confined to the relations among States and was only applicable to
them. It was even said that it was impossible for international law to apply to any other entities than
States.
Reality proved that this dogmatic view was wrong:
- Indeed, as the need for more enduring cooperation among States grew, States began to
establish among themselves entities that were legally distinct from them and designed to
serve certain specific purposes (e.g. managing a river between two riparian States or
organizing the exchange of mail post over borders). States established international
organizations and it was soon (although not that easily) conceded that those organizations
could also have a legal personality under international law.
- Furthermore, after the terrible crimes and persecutions that took place during the Second
World War, it was felt necessary to limit through treaties the way States could exercise their
sovereign powers over individuals and groups by protecting fundamental rights and

freedoms. International human rights were born, making clear that individuals could also
be the bearers of rights under international law.
- And through the development of the Nuremberg and Tokyo tribunals, international
(criminal) law was also used to prosecute and convict individuals. This proved that not only
could international law confer rights to individuals, but that it could also impose obligations
on them. There is therefore no inherent impossibility to use instruments governed by
international law to create rights and obligations for other subjects than States.
In the last 30 or 40 years, corporations were afforded substantial and procedural rights under
bilateral investment treaties, proving again that international law was not inherently limited to the
realm of States.
And of course, in addition to all those developments, the respect for international law, its
development and improvement is a growing concern for what is called the “international civil
society”, which is made of hundreds of non-governmental organizations (NGOs) having all sorts of
concerns, from the protection of the environment to women’s rights.
So, it is clear that today, States are not anymore the only entities concerned with international law
and that international law is no longer “their” thing. However, it is important at this point to make a
few conceptual distinctions.
Personality under international law

Here are the distinctions to be made.
First, one must distinguish between the actors of international relations and the subjects of
international law.
- The actors of international relations are all the entities and persons that, in one way or
another, appear on the international stage4. They interact in international relations. Any
person, any group or entity having some impact on international relations could be said to be
an actor of such relations.
- Being a subject of international law means having a legal personality under international
law5. And here, we need to make another conceptual distinction between a broad or a
narrow understanding of what it means to have a legal personality:
o Under the broad definition, having legal personality means having rights and/or
obligations under the relevant legal order. In that sense, one could say that
individuals are now subjects of international law because they are conferred rights,
and also obligations, under international law: international human rights protect
individuals, while each of us is bound under international law not to commit certain
grave crimes like genocide or war crimes. In that sense, we, as individuals, are
subjects of international law. However, our legal personality is only passive: we do
not create by ourselves those rights and obligations that are bestowed upon us by
international legal instruments. We do not master those instruments.
4
E.g. States, international organizations like the UN, the WTO or NATO, big transnational corporations, large NGOs
like Amnesty International or Médecins Sans Frontières, individuals like a religious leader, a charismatic prisoner and
opponent or a wealthy businessman running an important charity of his own in developing countries, terrorist groups, a
rebellious movement fighting a civil war, the Nobel peace prize committee, migrants, etc.
5
In contrast, even if often in addition, to being a subject of domestic law.

o International legal instruments are mastered by other subjects, most notably by

States and international organizations, and because of this, those latter subjects can
be said to have an active personality under international law. This is the narrow
definition of legal personality: having rights and/or obligations under international
law is not sufficient, what matters is having the legal capacity to participate in the
creation of new rights and new obligations, at least for oneself, and to do that
through legal instruments that are instruments of international law.
The distinction between active and passive legal personality is not much different from the
distinction between being a subject of regulation and an object of regulation, i.e. between regulating
and being regulated. Of course, the distinction is dogmatic and sometimes things are a bit
blurred: for instance, it is difficult to decide if the capacity to vindicate bestowed rights is an
element of active or passive personality. E.g. individuals and corporations are not only conferred
rights under human right treaties or investment treaties, but they are increasingly given access to
redress mechanisms, including sometimes courts and tribunals that allow them to vindicate those
rights at the international level against the public authorities that failed to respect those protected
rights. Does that make individuals or corporations active subjects of international law? Maybe, but
it might be a bit confusing to say that since neither individuals nor corporations have yet the
capacity to make new rules of international law and they are unlikely to acquire such capacity soon.
The distinction between active and passive legal personality has primarily an educational purpose: it
is there to help us to classify and to categorize. Nearly all of the examples given above, from States
to members of terrorist groups, could be said to relate to actors of international relations having
some legal personality (and this is because even terrorists have criminal obligations imposed upon
them by international law).
But those examples make also clear that even within the two main categories of active and passive
legal personality, legal personality can vary to a great extent. For instance, the active legal
personality of an international organization is very different from the one of a State and, moreover,
one personality of one organization is not the same of the personality of another organization.
In other words, personality under international law comes in many forms and degrees once it is
defined broadly as having rights or obligations under international law. In an advisory opinion
about the legal personality of the United Nations and its capacity to claim reparation for the injury
resulting from the killing of one of its envoys, the International Court of Justice considered that:
“The subjects of law in any legal system are not necessarily identical in their nature or in the extent
of their rights, and their nature depends upon the needs of the community. Throughout its history,
the development of international law has been influenced by the requirements of international life.”
That was in 1949 about the personality of an international organization. But the same reasons based
on the “needs of the community” can explain the emergence of new categories of subjects of
international law. Subjectivity under the law stems from the social needs at a certain time and it is
not a unified category: the extent of the rights and the nature of the subject can vary considerably.
In this introductory course, we’ll concentrate on the two main subjects of international law having
an active legal personality, i.e. States and international organizations. As they remain to a large
extent the only makers of international law from a formal point of view, it is important to
understand what those abstract legal entities are from the point of view of international law and how
they come into existence.

Concentrating our attention on States and international organizations does not mean that they are
the only subjects of international law today! It is just that addressing the issue of individuals,
corporations or other non-state actors as subjects of international human rights law goes far beyond
the scope of this course, even if for instance human rights is an essential field of international law
today, while international investment law is a growing field today.
I. STATES
Historically, States were the first subjects of international law and they remain the most important
ones. International law has been invented by States, for States and it is largely made by them. It is
therefore important to start by inquiring into the establishment of statehood: what is a State within
the meaning of international law?
The elements of statehood

States are central to international law. As we’ve seen, international law was created by States, for
them and it was primarily designed to apply to them. And States are said to be active subjects of
international law.
But what is a State as a legal subject under international law? True, we all know intuitively what a
State is. But have you ever met with a State? And while we would all agree that, say, Uruguay is a
State, it is very likely that we would disagree on the statehood of some other entities, like Palestine,
or Kosovo or South Ossetia. And what about the so-called Islamic State today? How can we tell
that an entity is a State within the meaning of international law? It is usually considered that three
elements characterize a State:
1) A territory;
2) A population; and
3) An effective government.
Those three elements are notably recalled by the Montevideo Convention on the Rights and
Duties of States, a convention concluded during the Seventh International Conference of American
States in 1933. The Convention is said to codify the criteria for statehood and to codify also the
declarative theory of statehood.
The Montevideo Convention adds a fourth element, namely the “capacity to enter into relations
with the other States”. However, let us consider that this fourth element is somehow included in the
notion of effective government. It is indeed the external aspect of an effective government to be
able to entertain international relations.
A quick word on each of those elements:
1) A territory
There is no State without a territory, i.e. an area of land attached to the crust of this planet. This is
because we, human beings, live on the ground, not in the sea or in the air. And it must be a natural
territory, not an artificial platform above the waves.
However, there is no need to have a territory with clear and undisputed borders all around. What
matters is the control over a certain territory. The size of the territory does not matter (there are
huge States like Russia and micro-States like Monaco). If size of the territory does not matter, it
nevertheless remains that, as some have said, international law is “obsessed” with territory. And it
M. DUPONCHEEL - 10 - 2016-2017
is true that many disputes have existed and still exist today between States on issues of title to
territory and about border delimitations.
It is important to realize that the concept of State sovereignty is intrinsically linked to territory, so
much that territorial sovereignty is key to statehood. In 1928, in an arbitration between The
Netherlands and the United States of America about the sovereignty over the Island of Palmas
(in the Pacific Ocean, south of the Philippines and north of Indonesia), Max Huber, acting as sole
arbitrator in the case, famously wrote that: ”Sovereignty in relation to a portion of the surface of
the globe is the legal condition necessary for the inclusion of such portion in the territory of any
particular State. Sovereignty in relation to territory is called ‘territorial sovereignty’. Sovereignty in
the relations between States signifies independence. Independence in regard to a portion of the
globe is the right to exercise therein, to the exclusion of any other State, the functions of a State.”
2) A population
There is no State without a population, i.e. human beings living on the territory of the State.
Again, the size of the population does not matter, but it must not be an empty space, nor a space
with wild animals only. And the population should live on the territory on a permanent basis (it can
of course move around according to the seasons, but it must be there).
It does not matter if the population has the nationality of the State or nationalities of several other
States – that is another matter and it is possible, even if it has never occurred, that a State decides
not to grant its nationality to anyone.
3) An effective government
By this, what is required is that the population living on the territory be socially organized,
governed and represented by authorities that can effectively enforce the international obligations of
the State on the territory and the population. And those authorities must be independent, i.e. they
must not obey orders from outside and must act in an autonomous way.
Traditionally, States are free under international law to choose whatever form and nature of
government they prefer (e. g. a republic or a monarchy, a federal State or a very centralized State,
a military dictatorship or a liberal democracy). On that last point, international law is indeed
traditionally indifferent to the nature of the political regime of the State. Moreover, international
law prohibits outside interference in what are called the sacrosanct “domestic affairs” of a State.
This being said, more and more States agree in treaties to have a democratic form of government
and to respect some fundamental political freedoms. Those treaties are mostly concluded at the
regional rather than universal level. However, if such treaties have been concluded and are binding
on the State concerned, it is not free anymore, under international law, to have an undemocratic
government, while the way to govern its people is also curtailed by rules of international law.
The process by which those three elements meet at a certain moment in time and that a State comes
into existence is essentially a factual process. Indeed, States have historically established
themselves as States because they were able to do so, as a matter of fact. This may explain why
territory, population, effective and independent government are sometimes said to be
“constitutive” elements of States.
Caveat: this is a misconception if, by “constitutive”, one considers that the State ceases to exist as a
State if one of the three elements comes to be missing. In fact, this is not the case. The State
M. DUPONCHEEL - 11 - 2016-2017
survives and does not disappear if, notably, it lacks an effective government6. Therefore, instead of
considering those three elements as constitutive of States, it is a better view to see them as criteria
for the identification of States. They help to identify that what we have in front of us is indeed a
State, rather than something else like a tribe or an international organization.
The act by which existing States officially take notice of the existence of a new State, and admit it
as one of their peers, is called “State recognition”. It a very old institution of international law and it
is a decision of fundamental importance. And this is because, if becoming a State is essentially a
factual process, being a State on your own, without being admitted in the family of nations and
considered as a State by the other States, is rather meaningless.
State recognition
When a new entity claims to be a State because it meets the three criteria for statehood, other
existing States may decide to recognize it as a State.
State recognition can be used when a new State appears on the world stage. But if used, it can be
used only once in relation to the entity concerned. State recognition is a single-bullet gun.
State recognition is a discretionary act in the sense that there is no obligation or duty to recognize a
new State as a State. State recognition is discretionary also in the sense that it can be done whenever
the State recognizing sees fit.
The State recognizing the new State may also condition its recognition on certain political
concessions or commitments that the new State is called upon to do.
State recognition is a discretionary act that is most often explicit and made public by an official
declaration. Sometimes, the word “recognition” is not used and sometimes recognition tacitly
results from other acts. However, one has to be extremely careful in that regard. For instance,
contracting a treaty with a State does not necessarily mean nor imply that the two States recognize
each other. The only act which necessarily entails tacit and mutual recognition is the establishment
of diplomatic relations between those two States.
Finally, State recognition remains fundamentally a unilateral act from one State vis-à-vis another
State. Several States may of course decide to consult each other and proceed in a concerted way
before each of them recognizes the new State. But this does not make State recognition a collective
act and there is no collective body or organ entrusted with the power to recognize new States.
Notably, when a State is admitted as a member of the United Nations, it does not mean that all the
UN member States recognize that new member as a State. In other words, State recognition does
not result from being admitted to the UN.
Moreover, even voting in favor of the admission of a new Member State does not necessarily tacitly
mean recognizing it as a State. Thus, diplomacy sometimes leads to some rather surreal situations.
For instance, in November 2012, the United Nations General Assembly (UNGA) accorded what is
called the “non-Member Observer State status” to Palestine, a status by which one does not
become a member of the UN but which nevertheless requires that the entity be a State. When voting
in favor of such status, many States declared that their vote did not mean that they recognize
6
For instance, Germany was left without any central government after the fall of the Third Reich, but it did not
disappear as a State. Closer to us, Somalia did not stop being a State despite lacking an effective government for many
years.
M. DUPONCHEEL - 12 - 2016-2017
Palestine as a State, even if the status of non-member can only be afforded to entities considered to
be States.
Usually, State recognition is said to be declaratory: it simply declares that the entity being
recognized is a State, without having the effect of creating that State as a factual entity or
constituting its international legal personality. Put differently, State recognition has no specific legal
effect and is therefore a political, rather than a juridical, act. However, such act has a great
importance in international relations and it is never done lightly.
Moreover, the more one State is recognized, the more it will enjoy some international effectivity,
such effectivity enhancing the factual reality that the new State must be in order to be recognized.
In other words, there can be a sort of chicken and egg situation when the State being recognized is
somehow frail: of course, in order to be recognized, the entity should be a new and already existing
State, but being recognized will gradually reinforce, as a matter of fact, its status as a State.
Recognition will not make statehood, because the latter must precede it, but it will nevertheless
consolidate statehood. For that reason, it is difficult to escape the conclusion that recognition also
entails some constitutive effect. But, as we just said, recognition is not constitutive of the
recognized State as a State. However, recognition is nevertheless constitutive in the sense that it
establishes a relationship between the State recognizing the new entity and the recognized entity as
a State. A relation that exists between the two of them and that is proper to both of them.
If you see an entity being recognized as a State by some States, while other States refuse to
recognize it as such, you may ask yourself: what is that entity at the end of the day? Is it a State or
is it not a State? The answer to that question is: it depends. Sometimes, even the States who refuse
to recognize an entity as a State will easily concede that it is, and very much so, a State. If that is the
case, refusing to recognize is not a way to deny the factual existence of the entity as a State – a fact
is a fact –, but it will be a way to deny its political legitimacy7.
In other cases, when the factual existence of the State is more questionable, the constitutive
dimension of recognition comes into play. As recognition establishes a relationship between the
recognizing State and the entity being recognized as a State, statehood will exist for the purpose of
that relationship. In such a case, and despite being primarily a factual and objective issue, in such a
case statehood could therefore boil down to a relative issue based on subjective appraisals. This is
puzzling and discomforting when it happens, but it is the price to be paid in a decentralized system
of States where each of them is entrusted with the discretionary power to recognize or not new
States. For the rest, time, and time only, will tell if the factual reality of statehood is consolidated or
if it remains doubtful.
Obligation not to recognize (part I)

If State recognition is a discretionary act, are States always free to recognize another entity as a
State? Or is recognition sometimes prohibited?
In mid-September 1931, Japan invaded Manchuria (North-East China) and established a puppet
State called “Manchukuo”. The reaction of the League of Nations to this grave breach of peace
was very weak and Manchukuo continued to exist throughout the Second World War, until 1945. In
January 1932, the U.S. State Secretary Henry L. Stimson addressed to Japan and to China
7
For instance, Arab States who still refuse to recognize Israel today know very well that Israel is a State, and a mighty
one, and it would be foolish not to see that.
M. DUPONCHEEL - 13 - 2016-2017
diplomatic notes stressing that the United States

would not recognize any territorial change
brought as a result of such an illegal use of force.
War as an instrument of national policy had
indeed been declared illegal under the Paris
Treaty of 1928 (“Briand-Kellogg Pact”) and the
Japanese invasion was considered to be in
flagrant breach of that new rule of international
law.
The non-recognition policy of the U.S. was called
China and Mandchukuo map the “Stimson doctrine”. The Stimson doctrine
did not produce much change on the ground but, as a matter of principle, it reflected the idea
according to which a lawful situation cannot derive from a grave breach of law (ex injuria jus non
oritur) and it served to uphold the legal character of the new prohibition established under the
Briand-Kellogg Pact.
Such practice of non-recognition was followed by several States and
repeated on various occasions, notably when the USSR annexed the three
Baltic republics (Latvia, Lithuania and Estonia) in 1940. After the German
occupation, those countries were incorporated in the Soviet Union and only
recovered their independence in 1991 when the Soviet Union collapsed.
From such practice of non-recognition, a customary rule of international
law emerged8. The obligation not to recognize illegal situations was notably
set out by the International Court of Justice in two different contexts:
1) Namibia had been a German colony. Under the Peace Treaty of
Versailles (1919), Germany lost its colonies and the League of Henry L. Stimson
Nations established the Mandate system for their administration.
South Africa was granted a Mandate over Namibia. Under Article 22 of the Covenant of the
League of Nations, the Mandate system was governed by two principles of paramount
importance: the principle of non-annexation and the principle according to which the well-
being and development of the peoples concerned formed “a sacred trust of civilization”.
When the United Nations was established in 1945, a new Trusteeship system was put in
place, but former Mandatory powers remained bound to fulfill their Mandate obligations and
the UN took over the supervisory powers that were formerly exercised by the League of
Nations. In 1966, the UNGA terminated South Africa’s Mandate after having concluded
that, because of its policies of apartheid and racial discrimination, South Africa had
conducted the administration of the mandated territory “in a manner contrary to the
Mandate, the Charter of the United Nations and the Universal Declaration of Human
Rights” (Resolution 2145 (XXI)).
However, South Africa continued to be present in Namibia and, four years later, the Security
Council declared such presence to be illegal. The Security Council also declared that all acts
8
Week 3 will address in detail the formation and status of customary international law as a source of international law.
M. DUPONCHEEL - 14 - 2016-2017
by South Africa concerning Namibia after the termination of the Mandate were illegal and
invalid (Resolution 276 (1970)).
By a subsequent resolution (Resolution 284 (1970)), the Security Council requested the
International Court of Justice (ICJ) to deliver an advisory opinion on the legal consequences
for States of the continued presence of South Africa in Namibia, notwithstanding its
previous Resolution 276 (1970).
In 1971, the ICJ found that the UN Member States were “under obligation to recognize the
illegality of South Africa’s presence in Namibia and the invalidity of its acts on behalf
of or concerning Namibia, and to refrain from any acts and in particular any dealings with
the Government of South Africa implying recognition of the legality of, or lending support
or assistance to, such presence and administration” (ICJ, Legal Consequences for States of
the Continued Presence of South Africa in Namibia (South West Africa) notwithstanding
Security Council Resolution 276 (1970), Advisory Opinion, 21 June 1971).
Namibia became independent in 1990, two years after South Africa finally agreed to a
transition process.
2) In June 2002, the Israeli government approved the first stage of the construction of a
“continuous fence” in the West Bank (including in and around East Jerusalem), allegedly to
protect its citizens from terrorist attacks.
Gravely concerned by the construction of such a wall in the Occupied Palestinian Territory,
the UNGA met in an emergency session and requested from the ICJ an advisory opinion on
the “legal consequences arising from [such] construction” (Resolution ES-10/14 of 8
December 2003).
The Court found that “the construction of the wall in the Occupied Palestinian Territory,
including in and around East Jerusalem, and its associated regime, are contrary to
international law” and that Israel was under an obligation to cease the works, to dismantle
the parts of the wall already built and to make reparation for all the damage caused by the
construction of the wall. The Court also found that “all States are under an obligation not to
recognize the illegal situation resulting from the construction of the wall and not to render
aid or assistance in maintaining the situation created by such construction” (ICJ, Legal
Consequences of the Construction of a Wall in the Occupied Palestinian territory,
Advisory Opinion, 9 July 2004).
Obligation not to recognize (part II)

The obligation not to recognize as lawful a situation created by a serious breach of a peremptory
norm9 of general international law has been codified by the International Law Commission as a
rule of customary international law (Article 41(2), Articles on the Responsibility of States10 for
Internationally Wrongful Acts, A/RES/56/83).
Hence, the discretionary power of States to recognize new States is not unfettered: it is limited by
the obligation not to recognize situations resulting from serious breaches of fundamental rules of
international law. As a result, States would breach such obligation if they were to recognize any
9
Week 4 will address peremptory norms.
10
Week 6 will address State Responsibility.
M. DUPONCHEEL - 15 - 2016-2017
new State created out of an illegal military operation or in disregard of other essential rules of
international law.
Furthermore, the obligation of non-recognition can be specifically imposed by the United Nations
Security Council by a resolution which is binding on the UN Member States according to the
conditions that will be set forth later in the course. The Security Council has notably imposed on the
Member States a duty not to recognize as lawful:
Ø The racist minority regime in Southern Rhodesia (now Zimbabwe), and considered its
declaration of independence as having no legal validity (Resolutions 216 & 217 (1965));
Ø The declaration of independence of the “Turkish Republic of Northern Cyprus” (Resolution
541 (1983));
Ø The annexation of Kuwait by Iraq (Res. 662 (1990)).
Furthermore, the Security Council declared unacceptable the unilateral declaration of independence
of the “Republika Srpska” (Resolution 787 (1992)).
Is unilateral secession prohibited?

If the emergence on the world stage of a new State results from a concerted and negotiated process
with the mother-State, the rest of the world will usually feel reassured and will not contest such
outcome. State recognition will easily be granted. For instance, South Sudan declared its
independence in 2011 following an internationally monitored referendum that had been agreed after
a lengthy and a bloody civil war. South Sudan was easily and quickly recognized as a State.
However, throughout history, many new States came to exist as a result of unilateral acts of
secession. The question often asked in that regard is to know whether international law prohibits
unilateral secessions. And of course, if unilateral secessions are illegal as such under international
law, then the obligation not to recognize should apply and the new entity that aspires to be a State
should not be recognized as a State.
However, traditionally, international law has remained silent on the matter: while unilateral
secession is usually unconstitutional under domestic law, international law does not provide for any
rule prohibiting unilateral secession as such and as a matter of principle. In other words, per se
secession is not prohibited under general international law.
That may sound strange to you and you may think that, because international law protects the
territorial integrity of States, and notably under Article 2(4) of the UN Charter that we shall
study later in the course, unilateral secession is illegal, as it undoubtedly alters territorial integrity.
However, as the ICJ made clear in an advisory opinion about the conformity with international law
of the unilateral declaration of independence in respect of Kosovo: “the scope of the principle of
territorial integrity is confined to the sphere of relations between States”.
One must therefore understand that, at the very moment when secession occurs through a unilateral
declaration of independence, the entity which is about to try to become a State is not yet bound by
the duty owed by States vis-à-vis each other, the duty to respect their respective territorial integrity.
Such duty becomes binding on the new State once it has become a State, just a second after its
declaration of independence – provided, of course, that the outcome of such declaration is
successful and that a new State effectively results from it.
M. DUPONCHEEL - 16 - 2016-2017
This may sound fairly artificial and formal, but if international law were to radically prohibit
secession, it would simply mean that history is forever written in advance: as the establishment of
any new State would be contrary to international law and could not be recognized by other States,
then the composition of the international community of States would be frozen forever. The power
of existing States on their people would be considerably reinforced because the creation of any new
State would need to be concerted, which would amount to giving to the mother-State an unlimited
veto to the emergence of a new State on a portion of its territory. This may be the case as a matter
of domestic law, but this is not the case as a matter of international law.
So, while the absence of a radical prohibition of unilateral secession under international law might
be an element of course of instability in international relations, it does make some sense and is
actually not without some moral foundation.
This does not mean however, that unilateral secession is always in conformity with international
law. As the Court made clear in the same advisory opinion, there are indeed cases where the
unilateral secession stems from other grave breaches of international law, like an illegal use of force
by another State helping the secession. That was the case of the Turkish Republic of Northern
Cyprus, or the violation of the right of colonial people to self-determination. That was the case of
Southern Rhodesia, or grave breaches, graves crimes resulting in an ethnic cleansing. In those
cases, unilateral secession is the result of grave breaches. In other words, secession would not have
existed without those breaches. Therefore, the unilateral secession constitutes an illegal situation to
which the obligation not to recognize applies. This is precisely why the Security Council
condemned as illegal the situations mentioned above and requested from the UN Member States
that they do not recognize such situations as such and the entities as States. But that practice by the
Security Council does not create a rule prohibiting unilateral secessions as such!
The Kosovo Advisory Opinion

Kosovo declared independence on 17 February 2008. In response to that declaration of
independence, some States recognized the Republic of Kosovo as an independent State. However,
other States rejected the declaration, considering it illegal and illegitimate.
Upon the suggestion of Serbia, the UNGA adopted on 8 October 2008 Resolution 63/3 requesting
an advisory opinion from the ICJ on the following question: “Is the unilateral declaration of
independence by the Provisional Institutions of Self-Government of Kosovo in accordance with
international law?”.
The Court delivered its opinion on 22 July 2010. The Court first turned its attention to the
lawfulness of declarations of independence under general international law. The ICJ acknowledged
the varied historical record of declarations of independence and argued:
“79. During the eighteenth, nineteenth and early twentieth centuries, there were numerous instances
of declarations of independence, often strenuously opposed by the State from which independence
was being declared. Sometimes a declaration resulted in the creation of a new State, at others it did
not. In no case, however, does the practice of States as a whole suggest that the act of promulgating
the declaration was regarded as contrary to international law. On the contrary, State practice during
this period points clearly to the conclusion that international law contained no prohibition of
declarations of independence. During the second half of the twentieth century, the international law
of self-determination developed in such a way as to create a right to independence for the peoples of
non-self-governing territories and people’s subjugation, domination and exploitation. [...] A great
many new States have come into existence as a result of the exercise of this right. There were,
M. DUPONCHEEL - 17 - 2016-2017
however, also instances of declarations of independence outside this context. The practice of States
in these latter cases does not point to the emergence in international law of a new rule prohibiting
the making of a declaration of independence in such cases.
80. The Court then recalls that the principle of territorial integrity is an important part of the
international legal order and is enshrined in the Charter of the United Nations, in particular in Article
2(4), which provides that: “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.”.
In General Assembly resolution 2625 (XXV), entitled “Declaration on Principles of International
Law concerning Friendly Relations and Co-operation among States in Accordance with the Charter
of the United Nations”, which reflects customary international law (Military and Paramilitary
Activities in and against Nicaragua (Nicaragua v. United States of America), Merits, Judgment,
I.C.J. Reports 1986, pp. 101-103, paras. 191-193), the General Assembly reiterated “[t]he principle
that States shall refrain in their international relations from the threat or use of force against the
territorial integrity or political independence of any State”. This resolution then enumerated various
obligations incumbent upon States to refrain from violating the territorial integrity of other
sovereign States. In the same vein, the Final Act of the Helsinki Conference on Security and Co-
operation in Europe of 1 August 1975 (the Helsinki Conference) stipulated that “[t]he participating
States will respect the territorial integrity of each of the participating States” (Art. IV). Thus, the
scope of the principle of territorial integrity is confined to the sphere of relations between States.”
When is unilateral secession a right? Prolegomena

It is not because unilateral secession is not prohibited as such under a rule of general international
law that any people, any region and any province around the world would have a positive right
under international law to secede and to declare independence. There is indeed a difference between
having a right to do something, and simply having the possibility, the freedom to do it. And the
absence of the right to do a certain thing does not mean that doing such thing would be prohibited…
In the Kosovo advisory opinion, the ICJ stressed that “it is entirely possible for a particular act such
as a unilateral declaration of independence not to be in violation of international law without
necessarily constituting the exercise of a right conferred by it”.
However, certain peoples have been conferred a positive entitlement to become independent.
Those peoples not only have the possibility to declare independence without breaching any rule of
general international law, but they actually have the right, under international law, to do so. Such a
right to become independent unquestionably exists today in favor of non-self-governing territories
and peoples subject to alien subjugation, domination and exploitation.
Before addressing this important normative development and turning to the scope, the content and
the nature of the right of peoples to self-determination, it is worth recalling briefly how collective
entities that are not States came to be granted some rights under international law, so as to acquire a
certain international legal personality. This first step paved the way for later developments. The
idea according to which some people could be endowed with the right to become independent, and
to become independent States, stems from the practice of the Allied and Associated Powers during
the First World War. In the name of the so-called principle of nationalities according to which each
people making a nation within the multinational Austro-Hungarian Empire had the right to become
a State, the Allied and Associated Powers recognized the Polish and Czechoslovak nations
during the war and considered them as co-belligerents despite the fact that they were part of the
territories of their enemy. And when the war came to an end, the peace treaties of 1919 dismantled
the age-old multinational empire and replaced it by several new States.
M. DUPONCHEEL - 18 - 2016-2017
So, the idea that a group, a people, a nation, could be the bearer of a legitimate entitlement to
become a State was already present in the early years of the 20th century.
Furthermore, the Covenant of the League of Nations established (cf. supra) a Mandate system to
look after the peoples of the former German colonies and also of some territories that were
previously under Ottoman rule. Under Article 22 of the Covenant, those mandated peoples were
“peoples not yet able to stand by themselves under the strenuous conditions of the modern world”.
According to what was perceived at the time, and with the Euro-centered prejudices, as their degree
of development, those peoples were administered under Mandates A, B or C. However, common
to all those types of Mandates was the duty of the mandatory powers to look after the “well-being
and development” of those “peoples” in the name of a “sacred trust of civilization”.
So, there again, peoples were identified as bearers of specific rights and their territories were
conferred an international status because they were not simply part of the territorial sovereignty of
the mandatory power.
When is unilateral secession a right? Self-determination of peoples

The Charter of the United Nations established a Trusteeship system in order to replace the
Mandate system.
Additionally, Article 73 of the UN Charter confirmed and expanded the concept of the sacred
trust to all “territories whose peoples have not yet attained full measure of self-government”, i.e. to
the colonies of the victorious European powers.
Furthermore, the UN Charter referred to the “self-determination of peoples” in Article 1(2) and
also in its Article 55. Which peoples were envisaged to have such self-determination right and what
that right precisely meant was not very clear at the time the Charter was negotiated. However,
because the drafters of the Charter included representatives of the United Kingdom and of France,
two powers with huge colonial empires at the end of the Second World War, it is quite unlikely that
they envisaged to bestow to their colonies more benefits than the ones envisaged under Article 73.
When referring to the “self-determination of peoples” in the context of the development of friendly
relations among nations, in Article 1 and 55, the drafters of the UN Charter probably had in mind
the need to respect the fact that there were already deep political differences between Soviet-style
democracies and liberal democracies.
However those provisions did not stabilize European colonies around the world. After the great
sacrifices imposed on them by the war, peoples in the colonies were longing for freedom and for
self-government11. The fight against colonialism, which was first and foremost of course a moral
imperative and a lifelong political struggle for many around the globe, gradually became a legal
obligation. The landmark development in that regard, in that legal evolution, was, a short fifteen
years after the UN Charter was concluded, the adoption by the UNGA of Resolution 1514 (XV) on
14 December 1960. The resolution is entitled “Declaration on the Granting of Independence to
Colonial Countries and Peoples”. In substance, it proclaimed the “necessity of bringing to a speedy
and unconditional end colonialism in all its forms and manifestations”.
11
India became independent in 1947, Ghana was the first African country to reach independence ten years later and, in
the meantime, both in Asia and in Africa, bloody colonial conflicts arose, notably in Indochina and Algeria.
M. DUPONCHEEL - 19 - 2016-2017
Peoples living in non-self-governing territories and peoples subject to alien subjugation,

domination and exploitation were granted the right to self-determination, i.e. the right to freely
determine their political status, including attaining complete independence by becoming States.
Self-determination of peoples acquired a new, external dimension, to the benefit of a certain
category of peoples. Having the right to become independent, the colonial peoples were thus
granted a form of legal personality.
The paradox of the right to self-determination bestowed upon those peoples is that its single use
results in the birth of States. And once the State is born, the people somehow disappears, or at least
has exhausted its right to self-determination by realizing it.
Ten years after Resolution 1514, the General Assembly reaffirmed the right of peoples to self-
determination in the “Declaration on Principles of International Law concerning Friendly Relations
and Co-operation among States” (Resolution 2625 (XXV) of 24 October 1970). Interpreting the
“sacred trust of civilization” under Article 22 of the League of Nations Covenant half a century
later, the ICJ concluded in its advisory opinion on the legal consequences of the continued
presence of South Africa in Namibia that “the ultimate objective of the sacred trust was the
self-determination and independence of the peoples concerned” (21 June 1971).
The right of peoples to self-determination, understood as the right of colonial peoples to secede
from the colonial power and become an independent State, brought about a revolutionary change
in the composition and the concerns of the international community:
- In 1950, there were 60 UN Member States;
- In 1961, after Resolution 1514 was adopted, there were 104;
- In 1970, there were 127.
In other words, the international community of States more than doubled within 20 years and the
number continued to increase.
No doubt the outlawry of colonialism through the right of colonial peoples and peoples under alien
domination to become independent is now a fundamental principle of international law. It might
seem self-evident today, but one has nevertheless to measure the incredible change it brought about:
for many generations in Europe, colonialism had been considered a noble task and a life-long
project. It was now radically prohibited and, today, it is simply unthinkable.
On two occasions, the ICJ made clear that the right of peoples to self-determination is now a right
erga omnes, i.e. a right that must be respected by all and it entails the right of all States to request
its respect. In other words, if a colonial power were to refuse to grant independence to the people
under its domination, it would not only be a violation of international law vis-à-vis the colonial
people at stake, but also vis-à-vis all the other States and peoples.
Later on, we’ll turn to another question: are colonial peoples and the peoples under alien
subjugation, domination and exploitations, the only people to have the right to self-determination,
understood as the right, the entitlement, to secede and to become a new State? Or are other peoples
endowed with the same right?
Resolution 1514 (XV)

Cf. reading material, pp. 35-36.
M. DUPONCHEEL - 20 - 2016-2017
The various meanings of the right of peoples to self-determination

It would be wrong to consider that the right to self-determination only exists to the benefit of
colonial peoples, or peoples under alien subjugation, domination and exploitation. After all, Article
1, paragraph 2, and Article 55 of the UN Charter do not refer to a specific category of people, while
common Article 1(1) of the International Covenant on Economic, Social and Cultural Rights
(ICESCR, 1966) and of the International Covenant on Civil and Political Rights (ICCPR,
1966) states that: “All people have the right to self-determination. By virtue of that right they freely
determine their political status and freely pursue their economic, social and cultural development.”.
The right belongs to “all peoples”. This being said, self-determination of peoples has two distinct
aspects:
- Internal self-determination; and
- External self-determination.
In the latter sense, self-determination includes the right of a people to secede and to create a new
State. In the practice of States, such positive entitlement to become a State has so far been limited to
colonial peoples or peoples under alien subjugation, domination and exploitation. And this is easy
to understand: while many States are born out of unilateral declarations of independence, once they
establish themselves as States, they are all eager to protect their respective territorial integrity. This
explains why States, including States that were born as a result of the exercise of the right of
colonial peoples to external self-determination, have always been reluctant to concede the existence
of a positive right to secede unilaterally and become independent to any other peoples, but the
specific category of colonial people. For instance, it is quite telling that, while proclaiming in terms
similar to the 1966 Human Rights Covenants that indigenous peoples have the right to self-
determination, the UN General Assembly stressed that such right could not be interpreted “as
implying for any State, people, group or person any right to engage in any activity or to perform
any act contrary to the Charter of the United Nations or construed as authorizing or encouraging
any action which would dismember or impair, totally or in part, the territorial integrity or political
unity of sovereign and independent States” (UN Declaration on indigenous peoples
(A/RES/61/295 (2007))). Other UN documents use similar sentences to clearly restrict the
expansion of external self-determination to other peoples.
It has however been argued that when its internal self-determination is totally frustrated, any people
should be entitled to resort to external self-determination and should have the right to secede. In
such a situation, secession would be a remedial last resort. Without affirming that such a right
actually exists under contemporary international law, the Supreme Court of Canada has alluded to
such possibility, but quickly concluded that it was not applicable in the context of Quebec
(Supreme Court of Canada, Reference re Secession of Quebec, [1988] 2 S.C.R. 217).
In the advisory opinion on the unilateral declaration of independence in respect of Kosovo, the ICJ
declined to discuss the legal status of the concept of remedial secession. It said there was no need to
decide on that matter because the question put to it was about the conformity with international law
of the declaration of independence, not about the entitlement of Kosovo to declare independence.
(ICJ, Accordance with international law of the unilateral declaration of independence in respect
of Kosovo, Advisory Opinion, 22 July 2010).
Finally, it is worth noting that the contracting States to the “2+4” Treaty which paved the way of
the German reunification have accepted it in the name of the right of the German people to self-
M. DUPONCHEEL - 21 - 2016-2017
determination (cf. 10th recital of the Preamble to the Treaty on the Final Settlement with respect
to Germany, signed in Moscow on 12 September 1990). Because no new State was established in
the process of the German reunification12, it is difficult to consider it as an example of the extension
of external self-determination (in the sense of the entitlement to create a new State) outside the
colonial context.
State continuity and state succession

The German reunification offers an interesting case of a combination of State continuity and State
succession.
Matters of State succession or State continuity raise very difficult and complex international legal
questions. Usually, many of these issues are settled by specific agreements and treaties.
Conceptually, the important point is to see that in a situation of succession, a subject, usually a new
State (but not in the case of the Federal Republic of Germany which existed already and succeeded
to the GDR), takes over from a former one: there is an interruption, a break, between two separate
legal personalities.
Ø Czechoslovakia was peacefully dissolved as a State and stopped to exist as such on 1
January 1993. It was replaced by two new States: the Czech Republic and the Slovak
Republic. None of those new States claimed legal identity with Czechoslovakia and none of
them continued the international personality of the deceased Czechoslovakia; they both
succeeded to it as new subjects of international law.
In a situation of continuity, there is no such interruption: the same legal person continues to exist.
Ø For instance and as already mentioned, South Sudan became independent in 2011. South
Sudan is said be a successor State to Sudan on the part of the former Sudanese territory,
which is now South Sudan. But Sudan, despite having lost a part of its territory, continues
the international personality of the Republic of the Sudan and there is no new State in that
regard.
New States and borders

Disputes about territorial delimitation and borders have been recurrent in inter-State relations
throughout history. Wars have been fought over territories, but hopefully, peaceful means of dispute
settlement have also been developed and often used in matters of border disputes.
It is beyond the scope of this course to review all rules of international law relating to land or
maritime delimitation, but it is important to mention some of them in relation to the emergence of
new States.
The first rule to mention is the automatic succession of States to treaties establishing
international borders. Borders are usually established by common agreement between the States
concerned and those treaties are, as we shall see later when addressing the law of treaties, binding
on the contracting parties, and on them only. As a matter of principle, treaties are not binding on
third States, i.e. States that are not parties to them.
12
The German Democratic Republic (GDR) ceased to exist as a State, while the Federal Republic of Germany (FRG)
continued to exist as a State.
M. DUPONCHEEL - 22 - 2016-2017
When a new State emerges as a result of a secession, that new State is, by definition, a new subject
of international law and it is not party to the border treaties that were concluded prior to its
emergence.
Ø For instance, when Czechoslovakia disappeared as a State and was succeeded by the Czech
Republic and the Slovak Republic, none of those new States were formally party to the
border treaties that Czechoslovakia had contracted with its neighbors, i.e. Germany, Austria,
Hungary, Ukraine and Poland.
Would the new States be entitled to claim that their borders do not exist with their respective
neighbors because they are not party to the borders treaties concluded by the former State, now a
deceased subject of international law? The answer to that question is no: despite not being formally
party to the border treaties, the new State automatically succeeds to the rights and obligations of the
mother-State under the border treaty. This long-established rule of international law serves the
purpose of stability in international relations. And it is an exception to the principle according to
which treaties are only binding on the States that have formally consented to them (a corner-stone
principle of the law of treaties that we shall address later in the course).
Another principle applicable when new States come to exist needs to be presented. It also relates to
borders, but it relates to the establishment of new international borders, rather than to the stability of
existing ones. The principle is expressed by the Latin maxim “uti possidetis juris”.
Historically, uti possidetis juris was first used in the context of the Latin-American decolonization
in the early 19th century: while the borders between the Portuguese possessions and the Spanish
provinces were automatically stabilized as a result of the rule on State succession to border treaties,
it was agreed that the new international borders between the former Spanish provinces that had
become new independent States would be the administrative lines that had been drawn by the
Spanish Crown. Later on, when the European colonial empires in Africa were dismantled in the
1960s and new African States were established as a result of the right of peoples to (external) self-
determination, many African leaders confirmed the territorial status quo at the time of independence
and pledged to consider the former internal colonial division lines as new international borders. The
first summit of African heads of States meeting within the newly established Organization of
African Unity proclaimed in July 1964 the intangibility of frontiers inherited from colonization and
referred to uti possidetis juris. In other words, not only the international colonial borders that
existed between, for instance, the French and the British possessions in Africa would be kept, but
the internal lines between the former French territories existing under French colonial
administrative law, or the internal lines between the former British territories existing under British
colonial law, were also transformed into international borders.
Ø So, for instance, when Burkina Faso (formerly called Haute Volta at the time of the French
colonial empire) and Mali became independent after having been French colonies, the
internal administrative line that had been established by the French colonial administration
was transformed into an international border.
Of course, when the application of uti possidetis juris results from the agreement of the parties
concerned, no legal problem arises since that agreement provides for the legal basis of such
application.
M. DUPONCHEEL - 23 - 2016-2017
But what happens if there is no such agreement? Does uti possidetis apply as a rule, i.e. are internal
administrative boundaries automatically transformed into international borders even in the absence
of any agreement between the parties?
In a territorial dispute between, precisely, Burkina Faso and Mali where the two States referred
to uti possidetis and the intangibility of frontiers inherited from colonization, the ICJ generalized
the application of the principle and considered it as a rule. The Court said this:
“[uti possidetis juris] is a general principle, which is logically connected with the phenomenon of
the obtaining of independence, wherever it occurs. Its obvious purpose is to prevent the
independence and stability of new States being endangered by fratricidal struggles provoked by the
challenging of frontiers following the withdrawal of the administering power.”
So, the Court considered uti possidetis as a “general principle” and said it applied even outside the
colonial context. The Court stressed that the use of uti possidetis in Africa was not to be seen as
giving rise to the emergence of a new rule of international law, but “as the application in Africa of a
rule of general scope”.
In 1986, when the Court delivered its judgment, this was probably a bit far-fetched because uti
possidetis had only been used in two specific colonial contexts (in Latin America and in Africa) and
that, each time, the application of uti possidetis resulted from the agreement of the States
concerned.
A few years later, outside any colonial context, but in the context of the dismantlement of the
former Yugoslavia and the wars resulting from it, the question of the territorial delimitation
between the new States that had declared independence became very controversial. In a legal
opinion delivered to the Peace conference on Yugoslavia, the Arbitration Commission chaired by
Robert Badinter, who was the president of the French constitutional court and former justice
minister of France, referred to the judgment of the ICJ in the Burkina Faso/Mali case and concluded
that uti possidetis applied as a rule and by default: the internal boundaries existing between the
former Yugoslav republics were said to be protected under international law as international borders
and they could not be changed except by agreement. In other words, Serbia, Croatia, Bosnia-
Hercegovina and the other Yugoslav republics had no choice: the borders between them ran along
the old administrative lines that separated them when they were living together as federated entities
of the former Yugoslavia. Uti possidetis juris was thus applied outside a colonial context and the
States concerned finally agreed to it.
From that evolution and practice, it is difficult to escape the conclusion that uti possidetis juris
would most probably apply again as a rule in future cases of secession. Like State succession to
border treaties, uti possidetis juris promotes territorial stability, and therefore peace. Of course, the
new States remain free to agree to draw their borders differently. But the line resulting from uti
possidetis will apply by default and will most probably serve as the starting point to any border
negotiation.
However, and even if uti possidetis is considered and applied as a rule, this does not always solve
all the problems. Indeed, in some States, various internal administrative lines of provinces,
departments or regions could potentially be transformed into international borders and uti possidetis
does not say which of these lines should be used and turned into an international border. Therefore,
the application of uti possidetis will not be so automatic and it may require some prior negotiation
M. DUPONCHEEL - 24 - 2016-2017
and agreement about the relevant administrative boundary to be transformed into an international
border.
II. INTERNATIONAL ORGANIZATIONS
International organizations are a very important feature of international law. Unlike States, they
have not always been part of the international legal system. If the Central Commission for
Navigation on the Rhine, established at the Congress of Vienna (1815), is usually considered as the
oldest international organization, international organizations have really emerged around the end of
the 19th century and have since increased in numbers and importance.
The concept of international organization

International organizations have existed since the 19th century, but it is really during the second half
of the twentieth century that they have increased in number and in importance.
Today, there are a few hundred international organizations around the world, from small technical
organizations established between neighboring States, like a bilateral river commission, to universal
organizations entrusted with crucial political tasks, like the United Nations.
International organizations play an important role in the global governance: their expertise and
professionalism is relied upon by States and States often turn to them in order to design, decide and
implement common policies.
And of course this is not without raising some concerns and some problems of legitimacy and
accountability13, but those issues are largely political issues rather than purely legal ones.
Despite their differences in composition, in size and in object and purpose, international
organizations can be defined, from a legal point of view, as associations of States, and/or of other
organizations, associations that are established among them to serve specific tasks and which are
equipped for that purpose with permanent organs.
Let’s take those elements in turn:
1) First, an international organization is an association: unlike States whose creation is to a
large extent the result of a factual process, international organizations are always the result
of a free intent to get together and act together.
2) Second, as an association, the international organization has members. In many instances,
those members are States, and this explains why international organizations are also often
referred to as being intergovernmental organizations. But other international organizations
may also be members of international organizations if the rules of the organization allow it.
For instance, while only States may be members of the United Nations, a separate customs
territory having full autonomy in the conduct of external commercial relations can also be a
member of the World Trade Organization and this is why for instance the European
Community, now the European Union, has been a founding Member of the WTO, alongside
the European Union member States.
Organizations are established as a result of a juridical act, usually a treaty concluded
between the founding members. The organization is not party to the treaty under which it
13
And, despite their importance, this course will unfortunately not be able to address all of them.
M. DUPONCHEEL - 25 - 2016-2017
has been established, but such treaty will be the basic instrument of the organization, it will
be binding upon the organization and it will be like a constitution for the organization.
It is because their membership is made of other subjects of international law and it is
because their creation results from an act governed by international law that international
organizations can be distinguished from domestic law associations, like NGOs or other legal
entities constituted under the laws of a specific country.
3) An international organization is established between its members in order to serve specific
tasks. Organizations are based on functionalism14: they are there to fulfill certain functions
and are, for that matter, specialized. For instance, an international organization can be
established in order to monitor and to protect migrating birds; or in order to design and
coordinate the rules relating to civil aviation; or in order to regulate fisheries in certain
oceans; or, as the International Criminal Court (ICC), to prosecute and to judge individuals
accused of having committed grave international crimes.
4) Four, and lastly, international organizations are equipped with permanent organs. Those
organs are usually a secretariat made of international civil servants and some governing
body where the members of the organization are represented. And those organs are
permanent: an international organization is not an ad hoc international conference set up for
a certain purpose during a couple of weeks or months. The permanent character of the
organs will make the organization an institution, with its habits, its character and its internal
culture.
To put it bluntly: international organizations are bureaucracies. As Max Weber
demonstrated, bureaucracies are profoundly rational and they are central to any modern way
to govern. Moreover, law is central to bureaucracies and bureaucracies are moved by the
law: bureaucrats (civil servants) derive their power and authority from the law and always
act by referring to the legal instruments and the rules in order to justify their action. This is
true in national bureaucracies, but it is somehow squared in international bureaucracies. In
any international organization, when a new task is envisaged, the first question that will
need to be addressed is to know what legal basis entitles the organization to carry it out. And
that is a question for lawyers, and as that question will always somehow refer to the
international instrument under which the organization is established, which is an instrument
governed by international law, that question will be a question of international law itself.
ICL’s Draft Articles

The International Law Commission is the body responsible for the codification of international law.
Article 2 of the ILC’s Draft Articles on the Responsibility of International Organizations
states that:
“For the purposes of the present draft articles, the term 'international organization' means an
organization established by a treaty or other instrument governed by international law and
possessing its own international legal personality. International organizations may include as
members, in addition to States, other entities.”
14
We’ll revert to this element of functionalism and of specialty when addressing the personality and the powers of
international organizations.
M. DUPONCHEEL - 26 - 2016-2017
If the International Law Commission’s definition of international organizations refers to their legal
personality, it is because this is one of the most important features of international organizations
and that there is no responsibility without legal personality.
Legal personality
When we introduced the concept of international organization, we did not mention its legal
personality. This is because it is possible to have an international organization without a distinct
legal personality, i.e. a personality distinct from its members.
When they create a new organization, States may decide to establish it from a material point of
view, but not from a legal point of view: they may decide to create a bureaucracy that is not legally
distinct from themselves. They may create an institution that is functionally distinct from their
respective national administrations, an institution that will be truly international for that purpose,
but that will nevertheless not be an institution legally distinct from each of them. In such a case, the
international organization will simply act as a common organ of the members: what the
organization does will be considered as the joint action of the member States themselves. Each of
them will be responsible for what the organization has done because the organization is their
common organ since it has no distinct legal personality.
Ø For instance, during fifty years, the Benelux had no separate international legal personality
from its three member States (Belgium, The Netherlands, Luxembourg). Therefore, the
Benelux could not become party to any treaty on its own: it was for the three member States
to do so, not for the organization.
The situation changed with the entry into force of the new Benelux Treaty in 2012, which
confers international legal personality to the Benelux for limited purposes.
More and more often in the last decades, international organizations have been endowed with a
separate legal personality. This may result (1) from the very text of the basic treaty establishing
the organization, but also, more strangely and as we shall see, (2) from the system of the treaty as a
whole and despite its silence on the issue of legal personality or on the nature of such personality.
(1) When the basic treaty establishing the organization explicitly states that the organization has
an international legal personality, it is obvious that the organization will enjoy a legal
personality under international law. The organization will be a separate legal entity from its
member States. It will be a subject of international law of its own. As a matter of principle,
the conduct of the organization will not be the conduct of its members States and the
organization will bear responsibility for its own conduct.
(2) Now, what happens if the basic treaty establishing the organization does not say anything
about its legal personality? Or what happens if it simply says that the organization “shall
have legal personality” without stating the international nature of such personality?
In those cases, it is nevertheless possible, on a case-by-case basis, to deduce the existence of
such international legal personality from the system of the treaty establishing the
organization. This was authoritatively made clear in the advisory opinion delivered in 1949
by the ICJ about the issue of Reparation for Injuries Suffered in the Service of the
United Nations. In 1948, a Swedish diplomat, Count Folke Bernadotte, was appointed UN
mediator in Palestine. He tabled several peace proposals, and those proposals infuriated
many in the region. Together with other UN agents, Count Bernadotte was gunned down in
M. DUPONCHEEL - 27 - 2016-2017
Jerusalem during an attack on his motorcade. The attack was carried out by members of an
extremist Israeli group. The Security Council immediately condemned the attack, while
Israeli authorities were reluctant to investigate and to prosecute the authors of the
assassination, and when they did, they were very lenient. The UNGA requested an advisory
opinion from the ICJ about the capacity of the organization to bring a claim of reparation
against the government of Israel for injury resulting from the killing of its envoy. This raised
two legal issues:
1) Was the UN endowed with an international legal personality, so as to be able to
bring a claim of reparation in its own name?
2) Second: could such a claim be brought against Israel, which had just declared its
independence and which was not a member State of the UN? In other words: if the
UN had an international legal personality, does that personality exist vis-à-vis its
member States only, or also vis-à-vis all other States – non member States?
The Charter of the United Nations is silent on the legal personality of the organization.
However, the Court looked beyond that silence of the Charter and considered that because
the organization had organs having special tasks, because the Member States were bound to
assist the organization in its actions and to accept and carry out the decisions of the Security
Council, because the organization had legal capacity, privileges and immunities in the
territory of the Member States, because the United Nations was entitled to conclude
agreements with the Member States – because of all those elements and also because of the
ends, the purposes for which the UN had been established, the attribution of international
personality was, said the Court, “indispensable”. The Court concluded that “the UN could
not carry out the intentions of its founders if it was devoid of international personality”. In
other words, the Court deduced from the system of the Charter as a whole the intention of
the drafters of the Charter to establish an organization having an international legal
personality. Such intention may exist despite the silence of the basic treaty, but it may also
exist in a situation where the basic treaty refers simply to the legal personality of the
organization, without specifying that such personality exists under international law.
Let’s turn now to the second issue, which was about the capacity to claim reparation vis-à-
vis a non-member State. On that second issue, the Court found that, because the UN was an
international person, it had the capacity to bring a claim for the injury it suffered. Moreover,
the Court concluded that it could bring such a claim against the government of a non-
member State because the international legal personality of the UN did not only exist in the
relations between the organization and its member States. The Court said that Israel, as a
non-member State, would not be justified in raising an objection according to which the UN
had no capacity to present to it a claim against it. The Court stated that its “opinion is that
fifty States, representing the vast majority of the members of the international community,
had the power, in conformity with international law, to bring into being an entity possessing
objective international personality, and not merely personality recognized by them alone,
together with capacity to bring international claims. By such words, the Court upheld an
objective approach to the issue of the international legal personality of international
organizations.
As legal subjects under international law, international organizations are subjects for all
States, not only for their member States. Of course, the obligations existing within the
M. DUPONCHEEL - 28 - 2016-2017
framework of the organizations cannot be binding on States that are not members of the
organization but it does not mean that those non-members States can ignore the legal
existence of the organization. Or rather, non-members can ignore it, but that attitude will not
affect the legal personality of the organization, as its personality does not depend on the
consent of third States.
As we said earlier, some treaties establishing international organizations simply state that they have
a legal personality, without specifying that such personality exists under international law. And as
we’ve seen, one could very well deduce from the system of the treaty that the legal personality so
mentioned is a personality under international law.
However, sometimes, the organization will additionally be endowed with a legal capacity under
the domestic laws of its member States for the purpose of, for instance, buying goods, renting
offices, hiring staff, etc. Usually, the basic treaty will then explicitly say that the organization has
such internal law capacity.
Ø For instance, according to Article 335 of the Treaty on the Functioning of the European
Union (TFEU), the Union enjoys “the most extensive legal capacity accorded to legal
persons under [the] laws” of each of the Member States.
The important point is to see that the capacity of the organization under the national laws of its
member States does not exclude its legal personality under international law and that both
personalities are perfectly compatible with each other, even if they do not have to always exist
together.
Two governing principles (part I)

International organizations are all different from one another in their respective objects and
purposes, but also in their organs, their powers and their internal operating rules.
However, when they are endowed with international legal personality, two common principles
govern their legal capacity and give shape to it. Those legal principles are complementary, even if
they might seem contradictory at first sight.
1) The first principle is the principle of “specialty”. Unlike sovereign States, international
organizations are specialized legal persons: they are established for certain purposes and
their powers are limited by those purposes. Therefore, the organization must exercise its
powers in order to serve its object and purpose. For instance, an international organization
established for the purpose of protecting migrating birds is not entitled to exercise its powers
in relation to fisheries.
In an advisory opinion relating to a question raised by the World Health Organization
(WHO) about the legality of the use by a State of nuclear weapons in armed conflict, the
ICJ described the principle of specialty as a “basic principle” of the law of international
organizations. The Court stressed that it:
“need hardly point out that international organizations are subjects of international law
which do not, unlike States, possess a general competence. International organizations are
governed by the 'principle of specialty', that is to say, they are invested by the States which
create them with powers, the limits of which are a function of the common interests whose
promotion those States entrust to them. The Permanent Court of International Justice
referred to this basic principle in the following terms:
M. DUPONCHEEL - 29 - 2016-2017
'As the European Commission [of the Danube] is not a State, but an international
institution with a special purpose, it only has the functions bestowed upon it by the
Definitive Statute with a view to the fulfillment of that purpose, but it has power to exercise
these functions to their full extent, in so far as the Statute does not impose restrictions upon
it' (Jurisdiction of the European Commission of the Danube, Advisory Opinion, P.C.I.J.,
Series B, No. 14, p. 64.).” (ICJ, Legality of the Use by a State of Nuclear Weapons in Armed
Conflict, 8 July 1996, ICJ Reports, pp. 78-79, para. 25)
As the Court recalled by quoting from the PCIJ’s opinion relating to the jurisdiction of the
European Commission of the Danube, the principle of specialty does not prevent the
organization from exercising its functions (or powers) to their full extent.
2) The Court went on further to underline the principle of “implied powers”, referring this
time to its 1949 advisory opinion relating to the UN reparation claim following the
assassination of Count Bernadotte:
“The powers conferred on international organizations are normally the subject of an
express statement in their constituent instruments. Nevertheless, the necessities of
international life may point to the need for organizations, in order to achieve their
objectives, to possess subsidiary powers which are not expressly provided for in the basic
instruments which govern their activities. It is generally accepted that international
organizations can exercise such powers, known as 'implied' powers. As far as the United
Nations is concerned, the Court has expressed itself in the following terms in this respect:
'Under international law, the Organization must be deemed to have those powers which,
though not expressly provided in the Charter, are conferred upon it by necessary
implication as being essential to the performance of its duties. This principle of law was
applied by the Permanent Court of International Justice to the International Labour
Organization in its Advisory Opinion No. 13 of July 23rd, 1926 (Series B, No. 13, p. 18),
and must be applied to the United Nations.' (Reparation for Injuries Suffered in the Service
of the United Nations, Advisory Opinion, I.C.J. Reports 1949, pp. 182- 183; cf. Effect of
Awards of Compensation Made by the United Nations Administrative Tribunal, Advisory
Opinion, I.C.J. Reports 1954, p. 57)” (ICJ, Legality of the Use by a State of Nuclear
Weapons in Armed Conflict, 8 July 1996, ICJ Reports, p. 79, para. 25)
On the basis of the implied powers principle, the Court found in 1949 that the UN had the
power to bring a reparation claim for the injury resulting from the death of its agent.
In contrast, in 1996, the Court considered that:
“to ascribe to the WHO the competence to address the legality of the use of nuclear
weapons - even in view of their health and environmental effects - would be tantamount to
disregarding the principle of specialty; for such competence could not be deemed a
necessary implication of the Constitution of the Organization in the light of the purposes
assigned to it by its member States.” (ICJ, Legality of the Use by a State of Nuclear
In other words, there is no contradiction between the principle of specialty and the implied
powers doctrine because implied powers exist by necessary implication of the express
powers conferred under the principle of specialty.
Two governing principles (part II)

Indeed, the Court considered that:
“21. Interpreted in accordance with their ordinary meaning, in their context and in the light of the
object and purpose of the WHO Constitution, as well as of the practice followed by the
M. DUPONCHEEL - 30 - 2016-2017
Organization, the provisions of its Article 2 may be read as authorizing the Organization to deal
with the effects on health of the use of nuclear weapons, or of any other hazardous activity, and to
take preventive measures aimed at protecting the health of populations in the event of such weapons
being used or such activities engaged in. The question put to the Court in the present case relates,
however, not to the effects of the use of nuclear weapons on health, but to the legality of the use of
such weapons in view of their health and environmental effects. Whatever those effects might be, the
competence of the WHO to deal with them is not dependent on the legality of the acts that caused
them. Accordingly, it does not seem to the Court that the provisions of Article 2 of the WHO
Constitution, interpreted in accordance with the criteria referred to above, can be understood as
conferring upon the Organization a competence to address the legality of the use of nuclear
weapons, and thus in turn a competence to ask the Court about that. 22. [...]In the view of the Court,
none of these functions [of the WHO] has a sufficient connection with the question before it for that
question to be capable of being considered as arising "within the scope of [the] activities" of the
WHO. The causes of the deterioration of human health are numerous and varied; and the legal or
illegal character of these causes is essentially immaterial to the measures which the WHO must in
any case take in an attempt to remedy their effects. In particular, the legality or illegality of the use
of nuclear weapons in no way determines the specific measures, regarding health or otherwise
(studies, plans, procedures, etc.), which could be necessary in order to seek to prevent or cure some
of their effects. Whether nuclear weapons are used legally or illegally, their effects on health would
be the same. Similarly, while it is probable that the use of nuclear weapons might seriously
prejudice the WHO's material capability to deliver all the necessary services in such an eventuality,
for example, by making the affected areas inaccessible, this does not raise an issue falling within the
scope of the Organization's activities within the meaning of Article 96, paragraph 2, of the Charter.
The reference in the question put to the Court to the health and environmental effects, which
according to the WHO the use of a nuclear weapon will always occasion, does not make the
question one that falls within the WHO's functions.” (ICJ, Legality of the Use by a State of Nuclear
The United Nations

Among the various international organizations, the United Nations deserves special attention. This
is because the UN’s purposes and scope are unique.
According to Article 1 of the UN Charter, the Purposes of the Organization are:
“To maintain international peace and security, and to that end: to take effective collective measures
for the prevention and removal of threats to the peace, and for the suppression of acts of aggression
or other breaches of the peace, and to bring about by peaceful means, and in conformity with the
principles of justice and international law, adjustment or settlement of international disputes or
situations which might lead to a breach of the peace; To develop friendly relations among nations
based on respect for the principle of equal rights and self-determination of peoples, and to take other
appropriate measures to strengthen universal peace;
To achieve international co-operation in solving international problems of an economic, social,
cultural, or humanitarian character, and in promoting and encouraging respect for human rights and
for fundamental freedoms for all without distinction as to race, sex, language, or religion; and To be
a center for harmonizing the actions of nations in the attainment of these common ends.”
Because of these fundamental purposes, especially the maintenance of international peace and
security, the UN aims at universality and is by definition unique: a rival organization with similar
purposes would be a contradiction in terms.
Furthermore, and as it shall be explained later in the course, the obligations existing under the UN
Charter enjoy legal supremacy (Article 103 of the Charter).
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The UN has six main organs:

1) The General Assembly;
2) The Security Council;
3) The Economic and Social Council;
4) The Trusteeship Council;
5) The International Court of Justice;
6) The Secretariat.
A quick overview of those organs can be found on the UN website. Please read that information.
The course will deal in more detail with the powers of the General Assembly and the Security
Council in matters relating to international law. The jurisdiction of the International Court of Justice
will also be addressed.
Under Articles 57 and 63 of the UN Charter, a wide range of intergovernmental organizations
having responsibilities in the economic, social, cultural, educational, health and related fields are
brought into relationship with the UN and are called “specialized agencies”. Together with the UN,
other funds and programmes, they form the “UN family”.
As you can see on the UN web page, the United Nations plays a vital role in the promotion,
development and respect for international law. The study of international law is today inseparable
from the work of the Organization.
The foundation of the UN

The UN was founded in 1945. Please read abut the Declaration of St. James’s Palace, the Atlantic
Charter, the Declaration of the United Nations, the Moscow and Teheran Conferences, the
Dumbarton Oaks and Yalta conferences, and finally the San Francisco Conference in order to
understand the events that led to the conclusion of the United Nations Charter, in the city of San
Francisco on 26 June 1945.
The International Court of Justice (ICJ)

The principal judicial organ of the UN is the International Court of Justice (ICJ). The ICJ replaced
the Permanent Court of International Justice (PCIJ) that was established at the time of the League of
Nations.
As this course is about international law and because the course relies heavily on judgments and
advisory opinions of the ICJ, it is important to have a good general understanding of the Court’s
composition, jurisdiction and powers at an early stage of the course.
Please view the video on “The Role and Activities of the ICJ”. It was posted in 2013 on the web site
of the Court, when Judge Tomka was President of the Court.
This course will later review the ICJ jurisdiction and procedure in more detail when addressing the
pacific settlement of international disputes (Week 7).
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Week 3: Making international law I

The formal sources of international law
After the first and the second weeks, we are now more familiar with the history of international law,
its fundamental structure and also its subjects.
This week is about making international law, i.e. what are the processes through which rules of
international law come into existence. It is not about law-making in general, but about making law
that can be considered as having an international law character. Moreover, what will be of interest
to us this week is not why such a rule of international law exists and has such or such content, why
there is such obligation, rather than another obligation. But what can be called the “material”
sources or reasons for the law is not what we are going to look at. Rather, we are going to study
what most textbooks call the sources of international law, in the formal, rather than material way.
Where does International law come from? How does it come into existence? How is it made?
Identifying those formal processes through which rules of international law are created has of
course an immediate bearing on the issue of the subjects of international law. This is because the
processes, that are accepted as processes through which new rules of international law can be
created, are processes that very much reveal who has the capacity and the authority to make law.
It is of course always important to understand the political, the economic, historical or moral
contexts leading to the emergence of any specific rule. In that sense, talking about the formal
sources of international law is not much different from talking about who is considered to have a
full legal personality, that is a personality with the active capacity to make law. In that sense also,
the issue of the sources of international law is deeply political.
And it is important to learn about those legal technicalities and to master them as such because this
is what the added value of a professional lawyer is about. Furthermore, it is also important to
remember that by studying the various ways by which international law comes into existence, we
are actually studying what is international law.
Indeed, Hans Kelsen, the great Austrian-born jurist and legal philosopher who immigrated first to
Switzerland and then to the United States in the 1930s, wrote that: “International law can be defined
solely by the ways in which its norms are created”. So, by learning about the various ways in
which international law norms are created, we not only learn about those processes as legal-
technical issues, but also we gain a better and deeper understanding of what is international law and
what can be expected from it.
The issue of what is often called “soft-law” in international law, i.e. other acts and other instruments
that look like law, but that are not “hard-law” because they are not the result of the above-
mentioned usual processes, will be addressed.
In other words, the theory of the sources of international law has not only an inclusive aspect. It
also has an exclusive element by saying how law can come into existence, how it is created, it also
says what is not law, what does not count as law.
And this brings us back to a basic element about the function of any law, be it domestic or
international law: a theory of sources is deeply political not only because it tells you who has the
authority to make law and how law is made, but because the function of the law is always, and at
the same time, to limit power and to enable the exercise of power. Law gives reasons for action,
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it helps to justify what is done, and at the same time, law limits what can be done and de-legitimizes
what would be done in contradiction of the law. Law justifies and limits power. Therefore, by
identifying what counts as law and what does not, any theory of sources has an immediate political
dimension and impact.
The adequacy of the word “sources”

There have been endless debates in legal doctrine about the adequacy of the word “sources” of
international law to encompass the problem of the emergence of legal norms in a decentralized legal
system.
It is true that the word is somehow strange. It is often used in many domestic law contexts, but it is
also very largely referred to in international law textbooks. However, the concept is not only
academic, as it is for instance mentioned in the third recital of the preamble of the UN Charter:
“We, the peoples of the United Nations, Determined [...]
to establish conditions under which justice and respect for the obligations arising from treaties and
other sources of international law can be maintained [...]”.
Furthermore, the word “sources” is adequately evocative: where does international law come from
– in the same way as: where does a stream of water come from? And if there are different ways for
international obligations to arise, how are they different?
There is a distinction to be made between the material sources of the law and the formal sources:
- The material sources are all the historical, moral, political, economic, psychological, etc.
reasons that explain the emergence of a specific rule of law. Material sources are context-
and content-oriented.
- By contrast, formal sources are only processes by which legal rules prescribing new
obligations are made. Formal sources are instrument-oriented.
The problem of law-making in the international community

What we must do here is try to understand why law-making is a different problem in international
law compared to what it is in domestic law.
- In domestic law, the question of the sources is a fairly easy and straightforward problem: if
you want to know what counts as law in any municipal legal system, you usually turn to the
Constitution of the State and more often than not will it list the various types of legal
sources, together with the procedures that must be followed to enact any of them.
Furthermore, the Constitution will identify the various powers and the authorities within the
State and allocate to each of them the specific sources and law-making processes.
The resulting picture is one of a pyramid, with the Constitution standing at the top, as the
Grundnorm in the theory of Hans Kelsen. And as a result, there is a clear typology of
domestic sources and also a clear hierarchy among the various domestic sources of the law:
not only must each domestic law, decree or decision be enacted in conformity with the
procedures described by the Constitution, but there must also be a substantial conformity of
each domestic source with the source standing above it in the legal pyramid.
The validity of each legal act is defined by its place in the pyramid, its relation with the
other sources and other higher rules contained in the pyramid.
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- As we have seen from the first weeks of this course, things are pretty different in
international law where the main subjects and creators of the law are States. And States are
said to be equal and sovereign, which means that each of them has the same legal capacity
and none of them stands above any other. Of course, some are more powerful and more
influential, but no State has by law any legal authority or superiority over any other: one
State cannot make law on behalf of another State and for that other State.
The basic structure of international law resulting from the equal sovereignty of States is a
horizontal structure, as opposite to the idea of a pyramid. International law is flat, not
hierarchical.
In such a situation, the law cannot be created as a result of the will of a higher authority
because there is no such higher authority, all States being equally sovereign in law.
Therefore, law will have to result from some form of consent of the States concerned. If law
cannot be wanted and imposed by one authority over the subjects, it is then up to the
subjects to give law to themselves by creating law by themselves.
But this raises two fundamental questions:
1) How is it compatible with the notion of sovereignty? How is it possible to
reconcile the notion of sovereignty with the notion of law “tout court”? If
sovereignty means autonomy, the absence of any higher authority, how is it
possible in any way to limit sovereignty by law?
2) When it wants to do something, must a State find in a binding rule of
international law the justification and the limit for its action, or is it free to act as
it pleases absent any rule prohibiting what it intends to do? To phrase the
question in more theoretical terms: do States derive their powers and
competences from international law, or is it that because States are sovereign “by
nature” as it were, that they are just free to do what they want as long as they do
not breach any rule of international law that they are bound to respect? Is
international law a prohibitive or permissive legal order?
Those two questions have been answered by the Permanent Court of International Justice,
which is the Court established under the auspices of the League of Nations in the 1920s and
from which the International Court of Justice took over when the United Nations was
founded in 1945.
The Wimbledon case

Under the Treaty of Versailles, the Kiel Canal, in Northern Germany, was declared an international
waterway and it was to remain “free and open to the
vessels of commerce and of war of all nations at peace
with Germany on terms of entire equality” (Articles
380 to 386).
In 1921, a British steamship, the ‘Wimbledon’, that
had been chartered by the French company ‘Les
Affréteurs réunis’, presented itself at the entrance to
the Kiel Canal. But Germany denied the right of
passage, basing its refusal upon the Neutrality Orders issued by Germany.
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The British, French, Italian, and Japanese Governments filed an application against the German
Government for refusing the free access to the Kiel Canal to the steamship ‘Wimbledon’, in
violation of Articles 380 to 386 of the Treaty of Versailles that regulate the exercise of this right of
free passage.
The question upon which the whole case depended was whether the German authorities were
entitled to refuse access to and passage through the Kiel Canal to the S.S. ‘Wimbledon’.
Germany argued that concluding a treaty could not be interpreted as giving up its sovereignty,
which was precisely what happened with the internationalization of the Kiel Canal.
The Court decided that German authorities were wrong in refusing access to the Kiel Canal to the
S.S. ‘Wimbledon’. The Court disagreed with Germany, concluding that a treaty could place
restrictions on the exercise of sovereign rights, and therefore that sovereignty and international
law were not irreconcilable:
“The Court declines to see in the conclusion of any Treaty by which a State undertakes to perform
or refrain from performing a particular act an abandonment of its sovereignty. No doubt any
convention creating an obligation of this kind places a restriction upon the exercise of the
sovereign rights of the State, in the sense that it requires them to be exercised in a certain way. But
the right of entering into international engagements is an attribute of State sovereignty.”
(Permanent Court of International Justice, Wimbledon, 17 August 1923, Series A, n°1, p. 25)
To answer the first question asked above, it is thus possible to have law in a system of sovereign
states.
The Lotus case

A collision occurred on the high seas between the French vessel Lotus and the Turkish steamer
Boz-Kourt. The Boz-Kourt sank, causing the death of eight Turkish sailors and passengers.
The Turkish authorities started criminal proceedings against Lieutenant Demons, first officer of the
Lotus, and against the captain of the Boz-Kourt. Both were found guilty by the Criminal Court of
Istanbul and sentenced to 80 days of imprisonment and a fine.
The French government protested the lack of required jurisdiction to prosecute a foreigner for acts
committed outside of the Turkish territory, demanding the release of M. Demons or the transfer of
his case to the French Courts. Turkey and France agreed to refer this dispute to the Permanent Court
of International Justice, which in 1927 rendered its famous decision.
The main question before the Court was whether Turkey had acted contrary to the principles of
international law – and if so, what principles – when Turkish courts exercised jurisdiction over a
crime committed by a French national, outside Turkey. In other words, could Turkey exercise its
jurisdiction over the French national under international law?
The Court based its finding on the sovereign will of States and the permissive nature of
international law:
“International law governs relations between independent States. The rules of law binding upon
States therefore emanate from their own free will as expressed in conventions or by usages
generally accepted as expressing principles of law and established in order to regulate the
relations between these co-existing independent communities or with a view to the achievement of
common aims. Restrictions upon the independence of States cannot therefore be presumed.
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Now the first and foremost restriction imposed by international law upon a State is that – failing
the existence of a permissive rule to the contrary – it may not exercise its power in any form in the
territory of another State. In this sense jurisdiction is certainly territorial; it cannot be exercised
by a State outside its territory except by virtue of a permissive rule derived from international
custom or from a convention.
It does not, however, follow that international law prohibits a State from exercising jurisdiction in
its own territory, in respect of any case which relates to acts which have taken place abroad, and
in which it cannot rely on some permissive rule of international law. Such a view would only be
tenable if international law contained a general prohibition to States to extend the application of
their laws and the jurisdiction of their courts to persons, property and acts outside their territory,
and if, as an exception to this general prohibition, it allowed States to do so in certain specific
cases. But this is certainly not the case under international law as it stands at present. Far from
laying down a general prohibition to the effect that States may not extend the 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 which is only limited in certain cases by
prohibitive rules; as regards other cases, every State remains free to adopt the principles which it
regards as best and most suitable.” (Permanent Court of International Justice, Lotus, 7 Sept. 1927,
Series A, n°10, pp. 19-20)
Since no prohibition could be found in international law, the Court (by the President’s – at the time,
Max Huber – casting vote, the votes being equally divided) decided that Turkey did not violate
international law. There was no rule prohibiting Turkey from prosecuting Lieutenant Demons,
therefore the Turkish authorities did nothing wrong.
The Lotus principle, usually considered as a conceptual foundation of international law, lays down
the idea of a permissive international legal order: a behavior is considered lawful unless a rule
specifically prohibits it. This is because sovereignty entails that rules can only be made on the basis
of the consent of the States.
This case is considered the high mark of a strict positivist vision of international law.
Lotus overturned?
The legacy of the Lotus finding is still very much present with us.
However, the underlying understanding of international law that it conveyed was very much
controversial from the start: the 12 judges making the Court in that case were equally divided 6 to 6
and the case was only decided because of the casting vote of the president of the Court at the time,
Max Huber from Switzerland.
The more international law developed over time and the rules multiplied, the less the permissive
nature of the international legal order seemed convincing. The doctrinal debate on the subject has
been going on for years and it will very likely continue.
Is there an urgent need to revisit and to reconsider the Lotus finding or to overturn it and opt for a
prohibitive understanding of international law? Well probably not as the abundance of rules in
contemporary international law renders the debate even more theoretical today than what it was
back in 1927. Indeed, because treaties and rules abound, it will almost always be possible to
connect any State action with one rule or another so that the States will usually act and give legal
justification for their action, out of abundance of caution. They will not just say: “there is no rule
and I just do what I like”.
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This being said, it is interesting to see if the Lotus understanding of international law as a
permissive legal order has survived in the case-law of the ICJ.
In that regard, a close reading of contrasting excerpts from two more recent cases is interesting.
The Arrest Warrant case (Democratic Republic of the Congo v. Belgium)

The Arrest Warrant case is very similar to the Lotus case, since it also concerned the issue of a State
exercising extraterritorial jurisdiction.
On 11 April 2000, an investigating judge of the Brussels Tribunal of First Instance issued an arrest
warrant against the incumbent Minister for Foreign Affairs of the Democratic Republic of the
Congo (DRC), Abdulaye Yerodia Ndombasi. Allegedly, he had incited racial hatred in various
speeches in the DRC in 1998, which had contributed to the massacre of several hundred persons.
The arrest warrant was transmitted to the DRC and simultaneously internationally circulated
through Interpol. At this time, Yerodia was not on Belgian territory and none of the victims of the
massacres were Belgian nationals. Belgian authorities initiated proceedings under the Belgian law
which provided for (at the time) unfettered universal jurisdiction in respect of the crimes for which
Yerodia was sought. The law further provided that immunity attached to the official capacity of a
person should not prevent the application of the law.
The DRC filed an application with the ICJ, requesting the Court to declare that Belgium should
annul the arrest warrant. The claim was based on two different legal grounds:
- First, the DRC claimed that a State may not exercise its authority on the territory of another
State;
- Second, the DRC argued that the arrest warrant disregarded the immunity of the incumbent
Congolese Foreign Minister under customary international law.
In its Judgment of 14 February 2002, the ICJ found that the issuance against Abdulaye Yerodia
Ndombasi of the arrest warrant of 11 April 2000, and its international circulation, constituted
violations of a legal obligation of the Kingdom of Belgium towards the Democratic Republic of the
Congo, in that those acts failed to respect the immunity from criminal jurisdiction and the
inviolability which the incumbent Minister for Foreign Affairs of the Democratic Republic of the
Congo enjoyed under international law. Therefore, it found that Belgium must, by means of its own
choosing, cancel the arrest warrant of 11 April 2000.
In its reasoning, the Court did not address the first claim of the DRC about the alleged
incompatibility with international law of the unfettered universal jurisdiction exercised by Belgium.
This is because the DRC finally decided not to press that argument. In light of the Lotus finding, it
was indeed difficult to argue that the Belgian law on universal jurisdiction was contrary to
international law, as there was no clear rule prohibiting Belgium to extend, as it did, its jurisdiction
outside its territory absent any connecting factor.
However, the Court addressed the second claim of the DRC, about the violation of the immunity of
its Foreign Affairs Minister. The Court mentioned en passant certain situations in which immunity
would not bar the exercise of jurisdiction. While doing so, the Court seemed to subordinate the
existence of jurisdiction to international law (see below: “Provided that it has jurisdiction under
international law...”), which can be interpreted as a way to overturn the Lotus finding.
However, the Court did not make any reference to the Lotus case in its judgment:
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“Accordingly, the immunities enjoyed under international law by an incumbent or former Minister
for Foreign Affairs do not represent a bar to criminal prosecution in certain circumstances.
First, such persons enjoy no criminal immunity under international law in their own countries,
and may thus be tried by those countries' courts in accordance with the relevant rules of domestic
law.
Secondly, they will cease to enjoy immunity from foreign jurisdiction if the State which they
represent or have represented decides to waive that immunity.
Thirdly, after a person ceases to hold the office of Minister for Foreign Affairs, he or she will no
longer enjoy all of the immunities accorded by international law in other States. Provided that it
has jurisdiction under international law, a court of one State may try a former Minister for
Foreign Affairs of another State in respect of acts committed prior or subsequent to his or her
period of office, as well as in respect of acts committed during that period of office in a private
capacity.
Fourthly, an incumbent or former Minister for Foreign Affairs may be subject to criminal
proceedings before certain international criminal courts, where they have jurisdiction. Examples
include the International Criminal Tribunal for the former Yugoslavia, and the International
Criminal Tribunal for Rwanda, established pursuant to Security Council resolutions under
Chapter VII of the United Nations Charter, and the future International Criminal Court created by
the 1998 Rome Convention. The latter's Statute expressly provides, in Article 27, paragraph 2, that
“[i]mmunities or special procedural rules which may attach to the official capacity of a person,
whether under national or international law, shall not bar the Court from exercising its
jurisdiction over such a person.” (ICJ, Arrest Warrant of 11 April 2000 (Democratic Republic of
the Congo v. Belgium), 14 Feb. 2002, ICJ Reports, p.3, para. 61)
The Kosovo advisory opinion

Following Kosovo’s declaration of independence, the General Assembly of the United Nations
requested an advisory opinion from the International Court of Justice (cf. supra). The question
submitted to the Court read as follows: “Is the unilateral declaration of independence by the
Provisional Institutions of Self-Government of Kosovo in accordance with international law?”.
The Court took a position that can be understood as an endorsement of the Lotus principle. In the
Court’s view, it was not asked to decide whether Kosovo had a right to declare independence, but
rather whether international law contained a prohibition to declare independence.
In its advisory opinion, the Court noted, without explicitly referring to the Lotus judgment, that the
answer to the General Assembly’s question:
“turns on whether or not the applicable international law prohibited the declaration of
independence. If the Court concludes that it did, then it must answer the question put by saying
that the declaration of independence was not in accordance with international law. It follows that
the task which the Court is called upon to perform is to determine whether or not the declaration
of independence was adopted in violation of international law. The Court observes that it is not
required by the question it has been asked to take a position on whether international law
conferred a positive entitlement on Kosovo unilaterally to declare its independence or, a fortiori,
on whether international law generally confers an entitlement on entities situated within a State
unilaterally to break away from it. Indeed, it is entirely possible for a particular act – such as a
unilateral declaration of independence – not to be in violation of international law without
necessarily constituting the exercise of a right conferred by it. The Court notes that it has been
asked for an opinion on the first point, not the second.” (ICJ, Accordance with international law of
the unilateral declaration of independence in respect of Kosovo, advisory opinion, 22 July 2010,
pp. 425-426, para. 56)
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In other words, the Court framed the question not in terms of entitlement of a possible right to
secession or self-determination, but in terms of the existence of a prohibitive rule against
declarations of independence in international law.
The Court concluded that the applicable international law did not prohibit the unilateral declaration
of independence and decided that the adoption of the declaration of independence of Kosovo
adopted on 17 February 2008 did not violate international law.
Introduction to Article 38 of the ICJ Statute

In order to identify the various sources of international law, most textbooks usually refer to one
treaty provision, namely Article 38 of the Statute of the International Court of Justice.
Now, as we have seen before, the ICJ is the principal judicial organ of the United Nations and was
preceded by the Permanent Court of International Justice, at the time of the League of Nations.
The Statute of the ICJ is very much a cut-and-paste of the Statute of the PCIJ, which was drafted in
1920 by an advisory committee of jurists chaired by a Belgian senator and professor, Baron
Edouard Descamps, who by the way was teaching at Louvain.
Before reading Article 38, it is important to remember the historical context of its drafting. In
1920, for the first time in the history of mankind, it was agreed to establish a permanent court
entrusted with the task of settling international disputes between States. Of course, various
arbitrations had taken place before, on a case-by-case basis. And each time, or at least very often,
when agreeing to go to arbitration, the disputing States indicated to the arbitrators what law, which
treaty, they had to apply in order to reach a binding decision. And by the same token, it was felt
necessary to point out the various sources of international law to the future Court.
But a standing, institutionalized court represented a real novelty at the time and, somehow, it was a
bit frightening to States. The risk was to see the Court deciding cases on the basis of certain sense
of justice. The fear was the issue of judge-made law, at a time when international law was not so
much developed and was rather rudimentary.
In order to reassure potential disputing States and to make the findings of the Court more or less
predictable, it was felt necessary to rather strictly define the straightjacket within the parameters of
which the Court was entitled to function and to base its judgments.
With that in mind, let us turn to Article 38. Article 38 is the last provision of the second chapter of
the ICJ Statute, which is entitled “Competence of the Court”. So defining the law that the Court
must apply in order to settle disputes is a matter of competence, of jurisdiction. In other words, and
strictly speaking, the Court has no competence to settle disputes by the application of other rules
than the ones enumerated by Article 38.
This is probably a little bit far-fetched, but the general idea that the Court is not entitled to settle
disputes by the application of rules that are not rules of international law is, generally speaking,
essential.
Article 38 of the ICJ Statute (cf. reading material, p. 26)

During this week and the following one, we will study the sources mentioned under points a), b)
and c) of (1) of Article 38, namely international conventions, international custom and general
principles.
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It is important to stress that the order of this listing does not establish any hierarchical order
between the various sources of international law to be applied by the Court: international
conventions (a) do not take precedence over international custom (b), while the latter does not take
precedence over general principles (c). There is no primacy of one source over another one: they are
all equally binding as a matter of principle. Article 38 contains an enumeration of sources and it
should not be read as a conflict rule.
This being said, there is nevertheless a logical order of application of each of the type of sources
listed, in the sense that it is in the absence of any international convention binding on the disputing
States that the Court will likely turn to international custom, while the absence of customary rules
will lead to the need to identify and apply general principles.
Point d) of paragraph 1 of Article 38 does not refer to formal sources of international law as such
that the Court shall apply, but it refers to two “subsidiary means for the determination of rules of
law”, i.e. for finding which treaty, custom or general principle exists.
1) The first of those two means are judicial decisions, subject to the provisions of Article 59 of
the Statute. According to Article 59, “the decision of the Court has no binding force except
between the parties and in respect of that particular case”. This means that ICJ decisions are
not binding for future cases: there is no obligation to rule according to what has been
decided before in another case.
However, if there is, strictly speaking, no principle of stare decisis in international law,
precedents will nevertheless play a very important role in the pleadings of counsels in
international proceedings and in the reasoning of the ICJ and of other international courts
and tribunals.
But according to Article 38, paragraph 1, d), precedents are not rules of law as such: they
are just a means to help identify those rules because they have been previously applied in
those past cases.
Article 38 again
2) The second subsidiary means for the determination of the rules of law are “the teachings of
the most highly qualified publicists of the various nations”. By this, Article 38 refers to the
writings of international law scholars, or at least the writings of the most renowned of them.
Who are they? We do not exactly know, as the Court never quotes nor refers to specific
writings, even if counsels and judges in their opinions very often refer to scholarly works.
For the rest, and as Judge Greenwood – who is currently a member of the ICJ – used to tell
his students, recalling what he was himself told: “Who is the most highly qualified publicist
of the various nations? … Whoever is marking your paper!”.
But let us be serious again: this reference to the teachings, ‘la doctrine’ in French, is quite
unique. You will not find many legal systems taking the writings of academics so seriously.
And indeed, scholars of international law spend much of their days trying to decipher
international practice, trying to put some order within the fuzziness of international law and
trying to identify from the practice emerging rules. So, ideas about what is international law,
what it should be, have a bearing on its understanding and development.
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Let’s finally turn to paragraph 2 of Article 38. It says that paragraph 1, which lists the sources
applicable by the Court, is “without prejudice to the power of the Court to decide a case ex aequo et
bono, if the parties agree thereto”.
This is very interesting: as a matter of principle, the Court must apply existing rules of international
law in order to settle the cases submitted to it, but as an exception to that principle and only if both
parties to the pending dispute specifically agree, it may decide a case on the basis of equity (ex
aequo et bono).
As of today, no State party to any dispute before the ICJ has ever agreed that the Court renders a
judgment based on its own understanding of equity and justice, rather than on the basis of pre-
existing rules of international law.
So, if the provision has never been applied, why is it so important and interesting? Well, precisely
because of what it tells us about the fear of States to have to face a Court deciding cases without
referring to the legal principles and rules that the States themselves have taken part in creating.
Paragraph 2 of Article 38 stands in contrast to paragraph 1 and reinforces the nature of the sources
listed in paragraph 1: on the basis of a very positivistic understanding of international law being the
result of the will and consent of States, those various sources are the result of processes which
somehow and ultimately are controlled by States themselves (or at least that is what States like to
believe).
I. CUSTOM
The notion of customary international law (Article 38, par. 1, (b))

Why do we start the study of the sources of international law with customary international law,
rather than with treaties and conventions, which are mentioned first in Article 38?
There are two reasons for this:
1) First, it is because, to a large extent, the making of treaties and conventions is itself
regulated by rules of customary international law. Therefore, it is important to understand
what is customary international law before turning to treaties.
2) Second, it is because customary international law is – except in certain cases that will be
mentioned – general in scope: international custom is, as a matter of principle, binding on all
States and also on international organizations. So, customary international law is also called
“general international law”.
This stands in contrast to treaties because treaties, as treaties, are only binding on their
contracting parties, i.e. on the States or international organizations that have explicitly
consented to them.
Also in contrast to treaties, which are written documents, custom is, as such, not contained
in any specific legal document. Both in domestic law and in international law, custom floats
in the air as it were. It is there, but it is nowhere. We say it exists, but how do we know it
exists when it is not the result of the exchange of agreements over a written text? Of course,
one may decide to write down custom, to make it explicit in a document, using words and
sentences. But writing down custom would not make custom; it would simply make it
explicit while it was there – and nowhere – before being written down.
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So, in this lesson about customary international law, the first thing to do is to understand how the
formation of rules of customary international law is generally explained15.
That issue remains hotly debated and largely mysterious because custom is fundamentally the result
of an informal, unregulated, spontaneous and decentralized process. And it could not be
otherwise. At the same time, everybody intuitively understands what is a custom: custom is
something that is usually done and that should be done.
The explanation that is generally provided in international law is not much different. Indeed, the ICJ
has developed what has been called the “theory of the two elements” which, when they meet,
result in the making of rules that can be said to exist as rules of customary international law. The
two elements are expressed by Article 38: “international custom, as evidence of a general practice
accepted as law”.
Let’s turn now to some ICJ judgments in order to see the theory of the two elements at play.
North Sea continental shelf cases (FRG/Denmark, FRG/The Netherlands)

A dispute arose between the Federal Republic of Germany and Denmark, on the one hand, and the
Federal Republic of Germany and the Netherlands, on the other hand, over the delimitation of the
North Sea continental shelf. The Parties disagreed over the delimitation of their respective parts of
the continental shelf, essentially because they were unable to agree on the rule of international law
that had to be applied. Therefore, they asked the International Court of Justice to state the principles
and rules of international law applicable to such delimitation, but they did not request that the Court
apply those rules and principles in order to delimit between them the continental shelf.
Denmark and the Netherlands argued that the disputed delimitations had to be carried out in
accordance with the principle of equidistance as defined in Article 6 of the 1958 Geneva
Convention on the Continental Shelf. However, Germany had not ratified that Convention, and was
therefore not legally bound by the provisions of Article 6. Denmark and the Netherlands claimed
that Article 6 of the 1958 Convention, dealing with equidistance, applied also to non-parties to the
1958 Convention by virtue of having become a rule of customary international law. Germany
rejected this argument and argued that Article 6 of the 1958 Convention had no customary nature.
In order to respond to the opposite claims made by the Parties about the existence or non-existence
of a rule of customary international law, the Court had to make clear what customary rules were
made of, how they come into existence. The Court referred to State practice and to opinio juris:
“74. [...] Although the passage of only a short period of time is not necessarily, or of itself, a bar
to the formation of a new rule of customary international law on the basis of what was originally a
purely conventional rule, an indispensable requirement would be that within the period in
question, short though it might be, State practice, including that of States whose interests are
specially affected, should have been both extensive and virtually uniform in the sense of the
provision invoked; and should moreover have occurred in such a way as to show a general
recognition that a rule of law or legal obligation is involved. […]
77. [...] 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 notion of the opinio juris sive necessitatis.
15
We are not going to study the process by which custom is created; we’ll only try to understand the explanations that
are usually given in order to rationalize that process.
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The States concerned must therefore feel that they are conforming to what amounts to a legal
obligation. The frequency, or even habitual character of the acts is not in itself enough. There are
many international acts, e.g., in the field of ceremonial and protocol, which are performed almost
invariably, but which are motivated only by considerations of courtesy, convenience or tradition,
and not by any sense of legal duty”. (ICJ, North Sea Continental Shelf (Federal Republic of
Germany/Netherlands), 20 February 1969, ICJ Reports, pp. 43-44, paras. 74 & 77). The Court
concluded that equidistance did not apply as a customary rule to the delimitation of parts of the
continental shelf, but rather that the applicable rule was that “delimitation is to be effected by
agreement in accordance with equitable principles, and taking account of all the relevant
circumstances” (Ibid., p. 53, para. 101). The rule is now reflected in Article 83, paragraph 1, of
the UN Convention on the Law of the Sea: ”The delimitation of the continental shelf between
States with opposite or adjacent coasts shall be effected by agreement on the basis of international
law, as referred to in Article 38 of the Statute of the International Court of Justice, in order to
achieve an equitable solution.”
Germany v. Italy
Italian and Greek plaintiffs sought to obtain compensation before domestic civil courts for harms
suffered at the hands of German occupation forces during World War II. Although bilateral
agreements were concluded for the compensation of war damages, these individuals did not obtain
any form of redress.
Italian courts decided that Germany did not enjoy immunity from jurisdiction for these acts (on
immunities, see Week 7), and condemned Germany to pay compensation to the claimants.
Furthermore, Italian courts agreed to give effect to Greek judgments of similar effect. There was no
dispute between the parties regarding the facts of the case (World War II events), and the
wrongfulness of the acts of the German Reich was also not contested. Therefore, the Court was not
asked to determine whether the acts of Germany were illegal (a point which was not contested, even
by Germany).
The Court was only faced with the question of the denial of Germany’s jurisdictional immunity by
Italian judicial decisions and by measures of constraint applied to property owned by Germany in
Italy. Through its judicial practice, and notably by allowing civil claims to be brought against
Germany, declaring enforceable in Italy decisions by Greek courts based on violations committed
by the German Reich, and taking measures of constraint against German property in Italy, did Italy
violate its obligation to respect the immunity which Germany claimed to enjoy under customary
international law?
The only question before the Court was the issue of immunity. Between the Parties, the entitlement
to immunity can be derived only from customary international law, since the European Convention
on State Immunity (1972) had not been ratified by both States, while the UN Convention on the
Jurisdictional Immunities of States and their Property (2004) was not yet in force:
“It follows that the Court must determine, in accordance with Article 38 (1) (b) of its Statute, the
existence of 'international custom, as evidence of a general practice accepted as law' conferring
immunity on States and, if so, what is the scope and extent of that immunity. To do so, it must apply
the criteria which it has repeatedly laid down for identifying a rule of customary international law.
In particular, as the Court made clear in the North Sea Continental Shelf cases, the existence of a
rule of customary international law requires that there be 'a settled practice' together with opinio
juris” (ICJ, Jurisdictional Immunities of the State (Germany v. Italy: Greece intervening),
3 February 2012, ICJ Reports, p. 122, para. 55).
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The Court had to determine whether States were entitled to immunity from jurisdiction under
customary international law, even when their acts consisted in grave breaches of international law.
In other words, the Court sought to determine whether a rule of customary international law exists
by assessing general state practice and opinio juris:
“State practice of particular significance is to be found in the judgments of national courts faced
with the question whether a foreign State is immune, the legislation of those States which have
enacted statutes dealing with immunity, the claims to immunity advanced by States before foreign
courts and the statements made by States [...] Opinio juris in this context is reflected in particular in
the assertion by States claiming immunity that international law accords them a right to such
immunity from the jurisdiction of other States; in the acknowledgment, by States granting immunity,
that international law imposes upon them an obligation to do so; and, conversely, in the assertion by
States in other cases of a right to exercise jurisdiction over foreign States.” (Ibid., para. 55).
In conclusion, the Court found that the absence of a State practice precluded the need to assess
whether opinio juris existed.
In contrast, in the Continental Shelf cases, there was evidence of state practice about equidistance,
but an opinio juris could not be inferred.
Summing up the “two elements theory”

1) The first element is said to be the objective element. It is about what is usually done. In
international law, what is usually done is referred to as “the practice of States”. Practice can
be made of actions or even abstentions, inactions. This is because the fact of abstaining
from doing something is already doing something.
Practice can be found in domestic legislation, in decrees, in the behavior of governmental
agencies, of the armed forces, in judgments of domestic courts, etc. As long as the factual or
legal behavior can be said to be the behavior of States, rather than the behavior of
individuals or corporations, we have practice that can count as far as the creation of custom
is concerned. But the behavior of States about individuals and about corporations, or about
other non-State actors, may also count as practice.
However, one instance of practice is not enough. Practice needs to be recurrent, both in time
and over space. Practice must be general: remember the words of Article 38, paragraph 1,
b): “international custom, as evidence of a general practice accepted as law”. This means
that the behavior taken into account must be regular and consistent over time. It must be
repeated. There must be a pattern of similar acts. Repetition, consistency, is at the heart of
notion of custom. Therefore, the idea that custom can be instantaneous is very much alien to
it.
Furthermore, the settled practice must not only exist in time but also over space, that is it
must not only be repeated by one or two States, but it must be shared by a real plurality of
States. Not necessarily a plurality comprising all States, but at least a plurality comprising
States that are most likely to be specially affected by the rule emerging from the
practice. To take a straightforward example: for the delimitation of maritime zones, the
practice of land-locked States (i.e. States without a coast) can be disregarded all the more so
that it is unlikely to exist. But this is precisely the point: it does not matter that land-locked
States, despite being numerous, have no practice about maritime delimitation for a
customary rule about that subject to emerge.
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2) The practice must not only be general. It must also be “accepted as law”, as Article 38 puts
it. This is the second element in the two elements theory of international custom and it is
said to be the subjective element of custom. In Latin, it is referred to as the “opinio juris
sive necessitatis”.
Using Latin sounds serious, but it makes things even more mysterious, so what does this
actually mean? The point is really the difference between, on the one hand, a pattern of
practice which makes a usage, a habit, a tradition: things are done because they are usually
done that way; and, on the other hand, a pattern of practice which makes a legal obligation
enshrined in a custom: things are done because they ought to be done that way. What makes
the difference between the two is this subjective element.
As you have seen from the North Sea Continental Shelf case, the ICJ says that “the States
concerned must feel that they are conforming to what amounts to a legal obligation”. Now,
this is quite peculiar for two reasons:
- First, it is strange to say that States, which, after all, are only abstract legal entities,
have feelings, as if they were human beings. But the idea is that States must have
somehow expressed themselves about the legal dimension and meaning of their
practice.
- Second, there is a logical trap in saying that the second constitutive element of
custom is the sense of a legal duty to conform with the practice.
Indeed, how could one have the sense that the practice is obligatory when the issue is
precisely the emergence of an obligation? Is it not putting the cart before the horse to
say that States must be of the opinion that what they do is compulsory when what is
actually at stake is the creation, through the combination of practice and opinio juris,
of a binding obligation in the form of a rule of customary international law?
To get out of this logical trap at the stage of the emergence of custom, let us submit
that it is better to consider that the opinio juris is not so much the feeling of
complying with what the law requires (which would be impossible since the law is in
the process of emerging). Rather the opinio juris should be understood as the intent
to make a custom.
The interplay between contrary practice and opinion juris

If customary international law is made of practice, what happens when the practice of States is in
breach of custom? Are breaches of a customary rule to be considered as wrongful acts or as
amounting to a new practice which displaces and changes the former customary rule into a new,
different, one?
This question relates to the normativity of customary rules:
- If customary rules only reflect practice, they are not much different from reality and they
change according to reality. Translated in the field of international relations, this would
mean that law and power are identical: law would just be an apology for power. But if law
and reality are the same, there is not really any law, law is not normative.
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- On the other hand, if rules are completely disconnected from reality, they would be very
normative but they would lack any effectiveness. Law would be purely utopian and just
words.
According to Martti Koskenniemi, who is professor at the University of Helsinki and a leading
scholar of international law, this tension between apology and utopia is inherent in international
law and always present in arguments about international law. The tension between how things are
(apology) and how things should be (utopia) is indeed reflected in the balance between the two
ingredients of customary law, i.e. practice and opinio juris. This balance is difficult to strike in
order to assess the emergence of a customary rule, but it is even more at play when the question is
the following one (cf. supra) : what happens when the practice of States is in breach of an existing
custom? Is the customary rule changed and displaced according to the new practice?
The issue of the survival of a customary rule despite a pattern of practice which contradicts it has
been addressed by the ICJ in a famous case between Nicaragua and the United States.
Inconsistent practice and the survival of customary rules

In the Nicaragua v. United States of America case, Nicaragua claimed that the USA had violated
international law by supporting the contras in their rebellion against the Nicaraguan government
and by mining Nicaragua’s harbors. According to Nicaragua, the US had notably breached
customary rules relating to the non-use of force and to non-intervention in the domestic affairs of
States. However, it is undisputable that those rules are far from being respected in practice.
So, the Court had to examine what was the effect of inconsistent practice on the survival of
customary rules: is inconsistent practice to be treated as a new practice that displaces the old rule
and creates a new rule? Here is the Court's answer:
“186. It is not to be expected that in the practice of States the application of the rules in question
should have been perfect, in the sense that States should have refrained, with complete consistency,
from the use of force or from intervention in each other's internal affairs. The Court does not
consider that, for a rule to be established as customary, the corresponding practice must be in
absolutely rigorous conformity with the rule. In order to deduce the existence of customary rules,
the Court deems it sufficient that the conduct of States should, in general, be consistent with such
rules, and that instances of State conduct inconsistent with a given rule should generally have been
treated as breaches of that rule, not as indications of the recognition of a new rule. If a State acts in
a way prima facie incompatible with a recognized rule, but defends its conduct by appealing to
exceptions or justifications contained within the rule itself, then whether or not the State's conduct is
in fact justifiable on that basis, the significance of that attitude is to confirm rather than to weaken
the rule.” (ICJ, Military and paramilitary activities in and against Nicaragua (Nicaragua v. USA),
27 June 1986, ICJ Reports, p. 98, para. 186)
Persistent objector, new States, regional custom and the foundation of custom
We have seen that the practice of States must be general: it must both be settled and shared by the
States that are specially affected by the emerging rule. In that sense, because it is based on what
States actually do and on their opinio juris about it, customary international law is somehow based
on a form of tacit consent by the practicing States, and also on acquiescence by the other States.
If the idea of custom being ultimately explained by a form of consent, then three problems may
arise:
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1) The first problem is as follows: is it possible for a customary rule to emerge if one State
objects to the practice by the other States? In order to answer that question, two situations
must be distinguished.
1.1) In the first situation, the objecting State is powerful and influential enough to induce
the other States to stop behaving as they once or twice did.
The practice will quickly stop, the opinio juris will not be expressed and, as a result,
no customary rule will emerge.
1.2) In the second situation, the objecting State is not in a position to stop the practice of
the other States. But it constantly objects to such practice: each time the other States
act, it reacts and objects to that practice.
The practice will lack a certain generality because the persistent objector does not
share it, but it will nevertheless be general enough, when sustained by corresponding
general opinio juris, to result in the creation of a new rule of customary international
law. However, because that State has all along expressed its disagreement with the
settled practice of the other States, it is admitted that it will not be bound by the new
custom.
This is called the persistent objector principle in the formation of customary rules
and, as a possibility, it has been accepted by the ICJ back in 1951, in the Anglo-
Norwegian Fisheries case. It reflects a voluntary and consent-based conception
of the formation of international law, even of customary international law.
2) In contrast to that consent-based approach, the second problem is the one relating to new
States.
When a new State comes into existence, it is usually admitted and assumed that it is
immediately bound by all existing rules of customary international law. The new State
does not need to express any consent in that regard. But neither can it start to object to those
existing rules: the persistent objector principle only applies if the objection is made from the
inception of custom, not after the custom has been established. So, the new State is not born
in a legal vacuum: it is at least bound by existing customary rules, that is to say rules that
did not emerge through its practice and its opinio juris – not even by its acquiescence. And
the new State cannot escape or opt-out from existing customary rules.
That situation proves that the consent-based approach cannot explain everything and is not
absolute. Therefore, one must admit that the binding character of customary law rests also
on some sociological necessities, rather than on pure voluntarism.
3) The third problem is perfectly compatible both with a consent-based foundation of
customary law and a more sociological approach to it. It is the phenomenon of regional or
local customs. In derogation to the idea that international customs are binding on all States,
it is accepted that some customs may be binding only for a certain group of States, in a
specific region of the world, or even, locally, on two or three States.
In 1950, in a case between Colombia and Peru about diplomatic asylum, the Court did
not rule out the idea of a regional custom, but it considered that Colombia had not
sufficiently proved that there existed a Latin-American custom on granting diplomatic
asylum.
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Ten years later, in 1960, in the case of the Right of Passage over Indian Territory, the Court
ruled that there was a local custom allowing for the existence of such a right of passage in
favor of Portuguese enclaves in India.
A certain paradox appears:
3.1) The more local or regional an alleged customary rule is, the higher the standard of
proof will be required, in the sense that the practice and opinio juris of the concerned
States will be closely scrutinized so as to be sure that the practice has been duly
accepted as law by them.
3.2) In contrast to this, the standard of proof required when an alleged general custom is
at stake will be paradoxically not as high and demanding. Most of the time, it will be
sufficient to refer to the practice and opinio juris of some States, the practice of
which will be more apparent, while some acquiescence on the part of the other States
will be deduced, absent any objection from them.
Where and how to find custom?

To find out about the practice of States, scholars and sometimes courts turn to what is called
“digests” of practice, i.e. reports published by foreign affairs ministries or academics about the
various things that the government of one State has done in international relations over a certain
period of time. Many Western States have been publishing their practice relating to international
law in books and in periodicals for many years, but more and more States do likewise today.
Of course, the more accessible the practice of one State is, the more influential it will be in the
formation of custom. And it is quite obvious that if the practice of a State is only known to a few of
its civil servants, it will not bear much influence on the crystallization of customary rules.
Hence, very often, the theoretical question about whose practice will, concretely, end up as being a
question about whose practice is accessible and has been made public both in a searchable form and
in a language which is internationally used.
State practice is not only scrutinized by individual scholars. It is also closely studied by two bodies.
Each of them is tasked with the study, the codification and the progressive development of
international law.
1) Taking them in the chronological order, we’ll start with the International Law Institute
(Institut de droit international). The Institut is a learned society.
It is a private body founded in 1873 and composed of 132 members, elected by their peers.
The Institut has been very influential in the late 19th century and during a good part of the
20th century and it was awarded the Nobel Peace Prize in 1904.
The Institut meets every second year in order to adopt resolutions on various issues of
private and public international law. Those resolutions very often codify, write down,
customary rules, and also, de lege ferenda, suggest some improvements.
2) The other body we will mention is the International Law Commission (ILC). The ICL is an
official body established by the General Assembly of the United Nations.
It is today composed of 34 members, which are elected by the UNGA upon the suggestion
of the various governments. And as it is usual at the UN, each region of the world is
M. DUPONCHEEL - 49 - 2016-2017
allocated a certain number of members within a Commission. The members of the ILC sit in
their individual capacity, not as national delegates. They are not only international law
professors, but they are drawn from the various segments of the international legal
community, so they may include former diplomats, former state officials and former
international civil servants.
Like the Institut, the ILC is tasked with the codification and the progressive development of
international law. It appoints special rapporteurs on certain topics, those rapporteurs write
down reports and suggest draft articles, draft articles that will be discussed by the ILC.
The interesting part is that, unlike the Institut, the ILC interacts with the member States of
the UN by putting questions to their governments, collecting their answers and listening to
their comments on its work. The Commission meets every year and its work is later
discussed every year at the sixth committee of the General Assembly, which is the legal
committee of the UN.
And the end-product of the ILC’s often serves as a basis for a diplomatic conference that
will result in a treaty – like, as we shall see, the Vienna Convention of 1969 on the Law of
treaties, or more recently, the 2005 New York Convention on jurisdictional immunities of
States and their property.
In other cases, the ILC draft articles are adopted by the UNGA in a resolution and its
content will very largely reflect existing customary law – this is for instance the case with
the ILC draft articles on the responsibility of States for internationally wrongful acts that we
are going to study.
However, the safest way to identify customary rules is to read case-law by international courts and
tribunals. After all, as the Latin maxim puts it: jura novit curia (the judge knows the law). So, if the
ICJ considers that such a customary rule exists or does not exist, it is safe to assume that this
pronouncement is correct. Or rather, from a positivist point of view, that finding has certainly more
weight and more authority than the writings of a scholar.
It is interesting to note that, depending on the content of the rule at stake, the ICJ takes more or less
pain in giving reasons for the conclusions it reaches as to the existence or non-existence of the said
rule. This does not come as a surprise and should not be the cause for criticism because, simply put,
some rules are more obvious than others, and raise less political tensions than others.
Week 4: Making international law II

II. TREATIES
The notion of treaty

This lesson is about treaties, i.e. “international conventions” as Article 38 of the ICJ Statute puts it.
Treaties have existed for thousands of years in the history of mankind. They are a very old
instrument of international law.
Intuitively, everybody understands what a treaty is: it is an agreement on the international stage.
Conceptually, a treaty is very similar to a contract, but at the international level. There are
thousands of international treaties currently binding between two or more States, and also between
States and international organizations, or between international organizations.
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Those thousands of treaties are about many different things: they can be about land or maritime
borders, trade, international aviation, the promotion or protection of investments, the protection of
human rights or the protection of the environment and biodiversity, the rules of war, judicial
cooperation between States and extradition, about disarmament, etc. They can also be treaties
establishing international organizations like the United Nations, the African Union or the European
Union, the World Trade Organization or the International Criminal Court, etc. Actually, any topic,
any issue can be the object of a treaty, provided that there is agreement for that purpose.
This lesson will not report on the rules and obligations contained in all those different treaties. This
would simply be impossible. Rather, this lesson is about the rules of international law relating to the
making of any treaty. In that regard, we are very much helped by the fact that there is a treaty on
the law of treaties: the Vienna Convention on the Law of Treaties. It was signed in Vienna on
23 of May 1969 and it entered into force on 27 January 1980. 114 States are now currently parties
to that treaty and it is applicable to the treaties contracted by those States after they became bound
by it. However, because most of its core provisions reflect customary international law, the
substantive rules contained in the Vienna Convention also govern treaties contracted by States that
are not party to it. Those substantive rules are not applicable to those treaties as rules of the Vienna
Convention, but as rules of customary international law. And for the same reason, those
substantive rules also govern treaties concluded by States before they became party to the Vienna
Convention. For instance, and as the ICJ has decided on several occasions, the rules on treaty
interpretation enshrined in the Vienna Convention may serve for the interpretation of treaties
concluded back in the 19th century, because those rules are customary rules written down in the
Vienna Convention.
According to its Article 2, the Vienna Convention applies to “an international agreement concluded
between States”. So, from a formal point of view, the Vienna Convention of 1969 does not govern
treaties when one of the parties to it is an international organization.
Another Vienna Convention, signed this time on 21 March 1986, was negotiated for the purpose
of governing treaties concluded between States and one or several international organizations, or
between international organizations. However, lacking the needed number of ratifications, that
latter convention has not yet entered into force. But this does not mean that international
organizations may not conclude treaties, nor that those treaties are governed by rules that are very
different from the ones applicable to treaties between States. As a matter of fact, the 1986 Vienna
Convention is to a large extent a cut-and-paste of the 1969 Vienna Convention. And because the
1969 Convention very much reflects customary international law, the same core rules apply to any
treaty, whether or not international organizations are parties to it.
From now on and as a matter of convenience, we shall most of the time simply refer to the “Vienna
Convention”, i.e. the 1969 Vienna Convention on the treaties between States. For the purpose of the
Vienna Convention, a treaty is an international agreement that is both concluded “in written
form and governed by international law whether embodied in a single instrument or in two or
more related instruments and whatever its particular designation”. In other words, treaties can
be finalized in one single document or be the result of the exchange of several diplomatic notes
or texts. Moreover, a treaty is a treaty whatever its name (it can be called treaty, convention, pact,
charter, covenant, protocol, memorandum of understanding, statute, etc.). International law is not a
formalistic legal order: what matters is the wine in the bottle, not the bottle nor its label. What
matters is the existence of an agreement between subjects of international law, and an agreement
M. DUPONCHEEL - 51 - 2016-2017
which is governed by international law – as opposed to a contract governed by a domestic law, or

as opposed to a political/gentlemen’s agreement, which is on purpose not binding under
international law and therefore not governed by international law.
It is important to keep in mind that not every agreement between States is a treaty: only those
agreements that parties tacitly or expressly agree to submit to international law are treaties.
Let’s end this introduction to the notion of treaty by mentioning the fundamental rule of treaty law.
It is an easy and straightforward rule, so fundamental that it is intrinsic in any legal system. It is
considered to be a basic principle of international law and an essential rule of customary
international law. In Latin, that rule is called “pacta sunt servanda”, which literally means
“agreements must be kept”. Article 26 of the Vienna Convention is entitled “Pacta sunt servanda”
and it reads as follows: “Every treaty in force is binding upon the parties to it and must be
performed by them in good faith”.
Treaty negotiations
Treaty negotiations are a great subject for historians and scholars of international relations. This is
because treaties are often important instruments of international politics. Just think for instance at
certain peace treaties that have had a lasting influence on human history.
If treaty negotiations can be fascinating from an historical or political perspective, they are however
rarely a subject of concern for international lawyers. And indeed international law does not
provide many rules about how to negotiate a treaty. This is because in order for negotiations to
be successful, States should be free to set up the negotiating framework, the agenda and the process
as they wish. Of course, those issues may require prior consultations and negotiations: States must
first agree that it is a good idea to negotiate a treaty about a specific topic, and then they must agree
on the way forward on the negotiating process itself: where will it take place, what will be the pace
of negotiations, how proposals will be exchanged, and discussed, etc. But all this is very much left
unregulated by international law, simply because it is impossible to set up in advance clear rules
on all those issues. Each negotiation is different and must therefore be conducted differently,
without being limited by predetermined rules. Having rules on all aspects of negotiations could
indeed be counter-productive as it could slow down, discourage or derail the negotiations. So, there
are very few rules of international law applicable to every single treaty negotiation.
However, and because it would be a waste of time to negotiate a treaty with persons who are not
entitled to speak and to bargain on behalf of the future contracting parties, one of the very few rules
relating to treaty negotiations stems from the long established practice according to which persons
sitting at the negotiating table must produce appropriate “full powers”. Under Article 2(1), c) of
the Vienna Convention, “full powers” are defined as “a document emanating from the competent
authority of a State designating a person or persons to represent the State for negotiating, adopting
or authenticating the text of a treaty, for expressing the consent of the State to be bound by a treaty,
or for accomplishing any other act with respect to a treaty”.
The practice relating to full powers has been codified by Article 7 of the Vienna Convention on
the Law of Treaties, and you will find its text in the documents of the course. And a similar
provision exists in the 1986 Vienna convention on treaties by international organizations. Full
powers are usually established by a letter, signed by the Minister of Foreign Affairs of the State or
the Secretary General of the organization concerned. However, it is interesting to note that
M. DUPONCHEEL - 52 - 2016-2017
paragraph 2 of Article 7 establishes presumptions of full powers: the persons that are specifically
listed in paragraph 2, i.e. Heads of State, Heads of Government and Ministers for Foreign Affairs,
heads of diplomatic missions, representatives accredited to international conferences or
organizations, are presumed to have full powers for the purpose of the negotiation and the
conclusion of the treaty, so much that they do not need to produce any document establishing that
they have full powers16.
In the case between Cameroun and Nigeria, the question arose as to whether a joint declaration
made by the two Heads of States amounted to an international agreement tracing part of the
maritime border between the two States. The Court considered that the declaration amounted to
such a treaty and it rejected Nigeria’s argument according to which Article 7, paragraph 2, of the
Vienna Convention would be solely concerned with the way in which a person’s function as a State
representative is established. Rather, the Court considered that the presumptions of Article 7,
paragraph 2, “deal with the extent of the person’s powers when exercising that representative
function” 17. Hence, the presumptions are substantive and not only formal: they relate to the
extent of the powers to represent the State, not only to the presumptive way by which such
representation is established.
Signature, ratification and entry into force

Article 10 of the Vienna Convention provides that, failing any other procedure or mechanism
agreed by the parties participating in the drawing up of the treaty, the signature of the treaty
establishes that the negotiated text is authentic and definitive. In other words, the end of the
negotiations results from the signature of the treaty. Once the treaty is signed, its text is final: the
draft treaty becomes the treaty.
Treaties are usually identified by referring to the place and the date of their signature (e.g. the
Convention on the Law of Treaties was signed in the city of Vienna on 23 May 1969).
Aside from the authentication of the treaty, the most important effect is that by signing a treaty, a
State may express its consent to be bound by the treaty. However, this important effect does not
automatically derive from the signature. As Article 12 of the Vienna Convention makes clear, the
signature expresses the consent to be bound by the treaty only when the treaty provides that the
signature shall have that effect; or it is otherwise established that the negotiating parties were agreed
that the signature would have such effect; or again that the intention of the negotiating parties to
give that effect to the signature appears from the full powers of the representatives involved or such
intention was expressed during the negotiations. In other words, the signature expresses the consent
to be bound by the treaty if that is the common intent of the negotiating parties.
If they do not have such intent, the signature cannot be considered as expressing the final consent to
be bound by the treaty. In such a case, a separate and distinct act will be needed to express such
consent. That additional act is called the “ratification” of the treaty18.
And in each case, and as the definition to be found in Article 2 of the Vienna Convention reads, it
is an international act whereby a State or an international organization establishes on the
16
And it would indeed be quite absurd to see, for instance, the Minister of Foreign Affairs of a State writing to himself
or to herself a letter of full powers.
17
ICJ, Land and Maritime Boundary between Cameroon and Nigeria (Cameroon v. Nigeria: Equatorial Guinea
intervening), 10 October 2002, §265.
18
The ratification may also be called the acceptance, approval or accession to the treaty.
M. DUPONCHEEL - 53 - 2016-2017
international plane its consent to be bound by the treaty. It is important to stress that, as Article 11
of the Vienna Convention makes clear, there is not one single means of expressing consent to be
bound by a treaty: the contracting parties are free to decide for each treaty which one is to be
preferred. As the ICJ ruled in the Cameroun v. Nigeria case, “both customary international law and
the Vienna Convention on the Law of Treaties leave it completely up to States which procedure
they want to follow”. States may want the treaty to immediately enter into force upon its signature
and therefore consider that the signature is the act by which consent to be bound by the treaty is
given. Or States may prefer to give to themselves a moment of thought and evaluation, and
eventually also a moment of democratic approval at the national level, so as to choose for a
ratification process.
When consent to be bound is not expressed by the signature of the treaty, the final clauses of the
treaty usually provide for the requirement of ratification and the procedure by which the treaty will
take effect:
- In case of a bilateral treaty, the day when the instruments of ratification of both parties are
exchanged will usually be chosen as the day upon which the treaty will enter into force.
- In case of a multilateral treaty, the ratification by each party will take place at various
moments in time.
But if this is so, when will the treaty take effect, when will it enter into force, for each of the parties
that have ratified it? Most of the time, parties agree that a certain number of ratifications are needed
for the treaty to enter into force. This is because it simply makes no sense to have a treaty binding
between only a few parties if it is a multilateral treaty. Hence, in the final clauses of the treaty, you
will most of the time find a provision entitled “entry into force” which states the conditions for such
entry into force19.
Article 84 of the Vienna Convention states that the Convention will enter into force 30 days after
the 35th ratification. Before that day, 35 States have expressed their consent to be bound by the
treaty, but they are not yet bound by the treaty. Once that day arrives, the treaty enters into force,
which means it is legally binding on the States that have already ratified it. From that day, and from
that day only, the parties that have already ratified the treaty must perform it in good faith – pacta
sunt servanda. Ratifications that are made after the day of the entry into force will usually produce
their effect immediately or after a period of time specified under the treaty20.
In order to centralize that process and to keep all the interested parties duly informed of the various
ratifications, the final clauses of a multilateral treaty usually designate a depositary with whom the
instruments of ratification must be deposited21. Article 77 of the Vienna Convention defines what
are the various administrative functions and duties that the depositary must impartially perform.
Of course, when the signature of the treaty does not express the consent to be bound by the treaty, it
must nevertheless entail the duty to respect the final clauses by which the process of ratification and
entry into force is provided for. This is of course made clear by Article 24, paragraph 4, of the
Vienna Convention and any other solution would not make sense.
19
For instance, Article 84 of the Vienna Convention requires 35 ratifications for the Convention to enter into force.
20
In the case of the Vienna Convention, that period is 30 days: the obligation to perform the treaty in good faith begins
30 days after each new ratification.
21
For instance, Article 82 of the Vienna Convention establishes the Secretary-General of the United Nations as
depositary of the instruments of ratifications of that treaty.
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One more important legal obligation needs to be mentioned here, pending the entry into force of the
treaty. During that period of time, awaiting that the treaty takes effect, each State or international
organization which has signed the treaty or expressed its consent to be bound by the treaty through
ratification, each is obliged not to defeat the object and purpose of the treaty. This is a general
obligation and it has been codified by Article 18 of the Vienna Convention. It is not an obligation
to comply with the treaty, nor an obligation to perform any of its provisions: it is an obligation of
good faith to abstain from any act that would make the object and purpose of the treaty
meaningless. And it is an interim obligation: it only exists pending the entry into force of the
treaty: once the treaty enters into force and becomes binding, that obligation is replaced by the
obligation to perform the treaty in good faith. Furthermore, the obligation not to defeat the object
and purpose of the treaty exists “until [the signing party] shall have made its intention clear not to
become a party to the treaty”. Hence, a party which has signed a treaty and later decides not to
ratify it can unilaterally free itself from that obligation by making clear that it does not intend to
become a party to the treaty. From the moment such intention is made clear, the interim obligation
ceases to be binding and the State concerned may perform acts which would run counter the object
and purpose of the treaty.
The ICC Statute

The Statute establishing the International Criminal Court (ICC) has been
negotiated by a diplomatic conference which met in Rome. The final text of
the treaty was signed in the Italian capital on 17 July 199822.
A few weeks before leaving office, President Bill Clinton signed the Rome
Statute on behalf of the United States of America, on 31 December 2000.
After the Administration of President George W. Bush considered that it
was its policy that the US were not to become party to the ICC Statute, the Secretary-General of the
United Nations received on 6 May 2002, the following communication from the US Ambassador to
the UN: “This is to inform you, in connection with the Rome Statute of the International Criminal
Court adopted on July 17, 1998, that the United States does not intend to become a party to the
treaty. Accordingly, the United States has no legal obligations arising from its signature on
December 31, 2000. The United States requests that its intention not to become a party, as
expressed in this letter, be reflected in the depositary’s status lists relating to this treaty”.
Registration and publication

Secret treaties have existed all along in the history of mankind. Many of them have provided for
alliances, mutual defence and assistance in case one of the contracting States is in a state of war
against a third State. Because of their secrecy, those treaties have been considered to be dangerous
and undesirable for the unforeseeable consequences they trigger. Secret treaties were blamed for
helping spark the First World War.
As a result, in his opening statement for the “Fourteen Points” that he presented in January 1918
as the basis for a future peace treaty, President Wilson straightforwardly condemned “secret
understandings of any kind” and he solemnly declared: “The day of conquest and aggrandizement is
gone by; so is also the day of secret covenants entered into in the interest of particular governments
and likely at some unlooked-for moment to upset the peace of the world”. Hence, the very first of
22
Cf. Articles 125 and 126 of the ICC Statute.
M. DUPONCHEEL - 55 - 2016-2017
the Fourteen Points called for “open covenants of peace, openly arrived at, after which there shall
be no private international understandings of any kind but diplomacy shall proceed always frankly
and in the public view”.
This idea that secret treaties were to be banned was translated into Article 18 of the Covenant of
the League of Nations, which provided that the League Members must register their treaties with
the League Secretariat in order for them to be published. The last sentence of Article 18 stated that:
“No such treaty or international engagement shall be binding until so registered”. Under that
system, non-registered treaties were thus deprived of any binding force, which is quite a radical
outcome.
The Covenant of the League of Nations has been terminated after the entry into force of the United
Nations Charter. Under Article 102 of the United Nations Charter, Member States have also a
similar obligation to register with the UN Secretariat every treaty and every international agreement
they have entered into. Such obligation only exists for new treaties in the future, i.e. once the
Charter is in force and the State concerned has become a member of the UN. Article 102 says that
the registration of treaties must be done “as soon as possible”, but there is no time limit for such
process.
Once the treaty is registered, the UN Secretariat must publish it, which is done through the United
Nations Treaty Series, a very large collection of volumes and now an online database which is
freely accessible on the UN website. The drafters of the United Nations Charter probably thought
that the sanction provided for under Article 18 of the League of Nations was too radical. It was
therefore replaced under Article 102, whose paragraph 2 provides that “No party to any such treaty
or international agreement which has not been registered may invoke that treaty or agreement
before any organ of the United Nations”. Thus, instead of being deprived of their binding force,
non-registered treaties may simply not be invoked before any organ of the UN, most notably
before the Security Council or the International Court of Justice. UN organs will just ignore non-
registered treaties and will not be able to consider or protect any right stemming from them.
However, because there is no time limit for the registration of treaties, a party which intends to avail
itself of a non-registered treaty before a UN organ may suddenly rush to the Secretariat and present
it for registration.
When a depositary is designated in a multilateral treaty, it will usually register the treaty with the
UN Secretariat, so that the other contracting parties will not have to do it themselves.
Does this all mean that there are no secret treaties anymore? Well, it would be quite naive to think
so and it is, by definition, also quite impossible to know precisely because those treaties are what
they are: they are not made public and they are kept within some closed governmental circles. They
remain secret. But this does not mean that the evolution resulting from the registration requirement
is meaningless. On the contrary, the obligation to make treaties public somehow induced a change
in the diplomatic culture: the contracting parties will have to decide whether they want to depart
from the registration obligation, instead of deciding that they want to publicize their treaty. And
even if they agree to keep the treaty secret, any of the parties could at any time decide to present the
treaty for registration without being susceptible of being blamed from a legal point of view for
having breached any secrecy obligation that may exist between the parties. This is because the
obligation to register treaties is contained in the UN Charter (Article 102) and that – as we shall see
M. DUPONCHEEL - 56 - 2016-2017
later in this course when addressing Article 103 of the Charter – obligations under the UN Charter
always prevail over other treaty commitments.
UN Treaty Series
The UN Treaty Series23 contains a very large collection of volumes with all sorts of bilateral or
multilateral treaties that UN Member States have registered pursuant to Article 102 of the UN
Charter.
Furthermore, an online database on the status of over 560 major multilateral instruments deposited
with the Secretary General of the UN is freely accessible.
Reservations: notion
The negotiation of a multilateral treaty is usually a more difficult and more cumbersome process
compared to the negotiation of a bilateral treaty: as more voices speak, it becomes more
complicated to find an agreement on every single point discussed.
But disagreement on points of details should not prevent agreement on the core principles and rules
of the new treaty. For instance a State may like 90% of what is in a treaty, but dislike what some of
its provision provide for, provisions that are of minor importance. In such a case, it would be sad
not to have that State on board of the treaty. But if the logic is “take it or leave it”, the risk is that
such State will not consent to the treaty at all, despite the fact that it very much likes most of it. So,
in order to encourage the conclusion of and accession to multilateral treaties, parties are often
entitled to make reservation to the treaties they contract.
Article 2(1), d) of the Vienna Convention defines the concept of “reservation” as follows:
reservation means “a unilateral statement, however phrased or named, made by a State, when
signing, ratifying, accepting, approving or acceding to a treaty, whereby it purports to exclude or to
modify the legal effect of certain provisions of the treaty in their application to that State”.
Reservations are a difficult and very technical legal issue and this introductory course will not deal
with every aspect of it. But let us try to understand the gist of the matter, even if this will already
require several videos. From the definition, a few elements already appear:
- A reservation is a unilateral statement: reservations need not be agreed between the
contracting parties during the negotiations, they are unilateral statements of each of them.
- It does not matter what the reserving State calls its reservation: it can call it ‘reservation’ or
‘declaration’ or ‘statement’. What matters is the intent conveyed by that unilateral
statement.
- Such intent must be either “to exclude or to modify the legal effect of certain provisions of
the treaty in their application to” the State making that statement. This is the proper, the
intrinsic, legal effect that a reservation may have.
o Excluding the effect of a certain provision can be easily phrased: for instance, a State
may declare that it does not consider itself bound by, let us say, Article 66 of the
Vienna Convention which confers jurisdiction to the International Court of Justice
for settling certain disputes about the alleged invalidity of treaties.
23
https://treaties.un.org/Pages/AdvanceSearch.aspx?tab=UNTS&clang=_en.
M. DUPONCHEEL - 57 - 2016-2017
o Modifying the effect of a certain provision is sometimes more difficult to phrase. But
let us imagine for instance a treaty by which labour by children under the age of 16
is outlawed and that a State makes a reservation providing for the possibility of
having children working in the advertisement industry, provided for instance that
prior administrative authorization be given through a specific procedure.
- Whether it is in order to exclude or to modify the legal effect of the treaty, the reservation
may only relate to “certain provisions of the treaty”. Reservations must be specific: they
cannot be about the treaty in general.
- Finally, the definition of the reservation contains an important temporal element:
reservations must be made “when signing, ratifying, accepting, approving or acceding to a
treaty”, which means that they cannot be made later than when the State expresses its
consent to be bound by the treaty. Once you are bound by the treaty, you must perform its
obligations in good faith and it is too late to declare that you do not want to be bound by one
of its provisions.
Any late reservation is not a reservation and produces no legal effect. Such temporal
requirement is repeated in Article 19 of the Vienna Convention.
Reservations: permissibility
Article 19 of the Vienna Convention states other limits to the possibility of making reservations.
1) First, and quite obviously, reservations cannot be made if they are prohibited by the treaty.
For instance, Article 120 of the Rome Statute of the International Criminal Court simply
states: “No reservations may be made to this Statute”.
2) Second, if the treaty provides that only specified reservations may be made, any other
reservation is prohibited and does not produce any effect.
3) Third, in all other cases, the reservation must not be “incompatible with the object and
purpose of the treaty”. This criterion comes from the advisory opinion delivered by the
International Court of Justice in 1951 concerning the reservations to the Convention
on the Prevention and Punishment of the Crime of Genocide.
The notion of the “object and purpose of the treaty” already appears in Article 18 of the
Vienna Convention, in relation to the interim obligation that exists pending the entry into
force of the treaty. The idea here is the same: a reservation is not permissible if it contradicts
the very ‘raison d'être’ of the treaty, i.e. the core obligations under the treaty. For instance, if
a State adheres to the Genocide Convention while at the same time declaring that it does not
consider itself bound by the Convention in relation to a specific ethnic group living on its
territory, such declaration would obviously have to be considered as a prohibited
reservation.
But if that is the case, what happens? Is the State bound by the entirety of the treaty despite
its prohibited reservation or must one consider that it is not bound by the treaty at all
because its reservation, despite being invalid, was an essential element of its consent to the
treaty?
The first issue to be addressed is to determine who is entitled to authoritatively decide on the
validity of the reservation, on its compatibility or incompatibility with the object and
M. DUPONCHEEL - 58 - 2016-2017
purpose of the treaty. If there is an international court or arbitral tribunal having jurisdiction
between the parties to decide on this issue, that court or tribunal could settle the dispute
about the validity of the reservation. And in case the reservation is considered to be
incompatible with the object and purpose of the treaty, the same court or tribunal could also
decide on the consequences of such finding.
In the Belilos case, the European Court of Human Rights decided in 1988 that an
“interpretative declaration” made by Switzerland about Article 6 of the European
Convention (about the right to a fair trial) was actually a reservation and that it was
incompatible with the object and purpose of the Convention. And furthermore, the European
Court decided to set aside that invalid reservation and it ruled that Switzerland remained
nevertheless bound by the European Convention in its entirety, including Article 6.
Human rights bodies usually follow such approach. And it is quite understandable in light of
the nature of the rights at stake. But it is not certain that a similar approach is granted in
every case, when the instrument at stake is about something else than the protection of
human rights.
When it is a purely contractual matter between States, the logic of consent as the basis for
the creation of international law rules should maybe lead one to consider that if the
reservation is invalid, but was nevertheless an essential element of the State consent to the
treaty, such consent has not been properly given so that the State is not bound by the treaty
as a whole.
Well be that as it may, and in the absence of any adjudicative body having jurisdiction to
decide on the matter, the question of the validity of certain reservations will often be left to
the appraisal of each of the other contracting parties. In that regard, the Vienna Convention
provides for a complex system of acceptance and objection to reservations.
Reservations: legal effects

Before turning to the complex system of acceptance and objection to reservations established under
the Vienna Convention, let’s come back for a moment on the various legal effects of reservations,
and let’s assume that we are dealing with a perfectly valid reservation, i.e. a reservation that is not
prohibited by the treaty nor a reservation that is incompatible with its object and purpose.
You may remember that, for the party making the reservation, the intrinsic effect of that
reservation is either to exclude or to modify the legal effect of certain provisions of the treaty.
But what about the other parties to the multilateral treaty? What are, for them, the legal effect of a
valid reservation? Two effects must be distinguished.
1) First, between the reserving party and the other contracting parties, the reservation has a
reciprocal effect. This means that the other contracting parties will only be bound vis-à-vis
the reserving party to the extent of the reservation.
This rule is provided for in Article 21, paragraph 1, b), of the Vienna Convention. The rule
is obvious: if the reserving party considers itself not bound by a certain provision (or only
bound in a certain manner), it is not entitled to require from the other contracting parties that
they fully respect the treaty vis-à-vis itself.
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Let’s take an example and illustrate this point. In a treaty between States A, B, C and D, if
State A declares that it consents to the treaty except for, say Article 42, State A is not bound
by Article 42, but as a matter of reciprocity, States B, C and D are not bound to respect
Article 42 vis-à-vis State A.
2) Second, between the other contracting parties, the reservation does not modify their
obligations under the treaty. This is called the relative effect of the reservation, and it is
provided for in Article 21, paragraph 2, of the Vienna Convention: “the reservation does not
modify the provisions of the treaty for the other parties to the treaty inter se”.
To take the same example: between States B, C and D, who have not made a reservation
about Article 42, Article 42 applies fully and B, C and D must respect Article 42 vis-à-vis
each other. As you can see, and if you add some complexity with B, C and D each having
different reservations, the multilateral treaty will have to be viewed as a web of bilateral
relations that are to a large extent similar but not exactly similar.
The question of the legal effect of the treaty will have to be analysed from the point of view
of each contracting party, in relation to every other party. In other words, the same
multilateral treaty will not produce the same legal effects for each of its contracting parties.
Reservations: acceptance and objection

Having now acquired a clear understanding of the legal effects of reservations, let us now turn to
the complex system of acceptance and objection to reservations.
The matter is regulated by Article 20 and Article 21, paragraph 3, of the Vienna Convention.
Without going too much into details, the system is as follows: reservations that are not specifically
authorized by the treaty should, as a matter of principle, be accepted by the other contracting
parties. Of course, reservations that are prohibited by the treaty or that are incompatible with its
object and purpose should not be accepted by the other parties. And the acceptance of an
objectively invalid reservation cannot make it legal.
The rule according to which valid reservations should be accepted in order to produce their effect is
largely tempered by two rules.
1) Acceptance: it is enough that only one other contracting party accepts the reservation for
the reserving party to become party to the treaty and for the reservation to produce its effect.
This is provided under Article 20, paragraph 4, c), of the Vienna Convention.
2) The second rule is expressed by Article 20, paragraph 5, of the Vienna Convention:
“reservations are considered to be accepted by another contracting party if it has not raised
any objection within one year of the notification of the reservation or its ratification of the
treaty”. Silence during twelve months means tacit acceptance of the reservation.
Read together and combined, those two rules mean that if all the other contracting parties
unanimously object to the reservation, the reserving State will not become party to the treaty at all.
This outcome is of course very unlikely, as all the other contracting parties must unanimously
object and this is very rare.
What happens then if the other contracting parties do not unanimously object to the reservation and
that, instead of expressly or tacitly accepting the reservation, some of the other contracting parties –
but not all – object to it? Sometimes, one party will object to the reservation because it considers it
M. DUPONCHEEL - 60 - 2016-2017
to be incompatible with the object and purpose of the treaty, and for that reason invalid. In such a
case, we would be back to the question raised earlier as to whether this is a correct appraisal or not.
Absent a court having jurisdiction to settle the matter, the claim relating to the invalidity of the
reservation will remain unsolved.
But what would be the effect of such objection anyway? Here, we need to distinguish between two
possible types of objection, irrespective of whether the objection is about the invalidity of the
reservation or whether it simply expresses the discontent of the objecting State with a reservation
that is nevertheless valid.
1) First, and as provided for under Article 20, paragraph 4, b), of the Vienna Convention, it
is possible for the party objecting to the reservation to expressly declare that, because of the
reservation, it opposes the entry into force of the treaty between itself and the reserving
party.
If that is the case, there is no treaty between the reserving State and the party making such
objection to the entry into force of the treaty. Such an objection has a radical effect and it
must expressly oppose the entry into force of the treaty.
Of course, it does not prevent the treaty from being binding between the reserving State and
the other parties to the treaty when they have not made a similar objection. So, if B objects
to the entry into force of the treaty because A made a reservation about Article 42, there will
be no treaty between A and B, but the treaty will be binding between A and C, and also
between A and D. And of course, the treaty will also be binding between B, C and D.
2) Second, if the objecting State does not go as far as preventing the treaty from entering into
force between itself and the reserving State, what is the effect of a simple objection?
Article 21, paragraph 3, of the Vienna Convention states that when the objecting State
has not explicitly opposed the entry into force of the treaty, “the provisions to which the
reservation relates do not apply as between the two States to the extent of the reservation”.
What does that mean? Well, if you think of it, this is not much different from the reciprocal
effect of the reservation itself: the provision to which the reservation relate will not apply
between the reserving and objecting States, to the extent of the reservation. This means that
if the reservation excludes a provision, that provision will not apply between the two States,
which is exactly what the reciprocal effect of the reservation means. And if the reservation
modifies a provision, it will also not apply between the two States, but only to the extent of
the reservation: the two States will reciprocally be bound by the modified provision to the
extent of the modification, and it will not apply between them for the rest.
So, one must conclude that, under the system established by the Vienna Convention, a
simple objection to a valid reservation has no specific legal effect as it does not deprive a
reservation from its own intrinsic, reciprocal and relative effects. The simple objection is
just the expression of a discontent with the reservation, an indication that the objecting State
would prefer that the reserving State withdraw its reservation.
And under Article 22 of the Vienna Convention, the reserving State may always and at
any time withdraw any of its reservations.
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Reservations and objections in practice: Pakistan and the CAT

The Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment
(or CAT) was adopted by the UNGA on 10 December 1984 and was open for signature in New
York by all States.
The CAT entered into force in 1987. Currently, 157 States are parties to the Convention.
When Pakistan ratified the Convention on 23 June 2010, it made the following reservations:
“1. Article 3 – The Government of the Islamic Republic of Pakistan declares that provisions of
Article 3 shall be so applied as to be in conformity with the provisions of its laws relating to
extradition and foreigners.
2. Article 8 – The Government of the Islamic Republic of Pakistan declares that pursuant to Article
8, paragraph 2, of the Convention, it does not take this Convention as the legal basis for cooperation
on extradition with other States Parties.
3. Article 4, 6, 12, 13 and 16 – The Government of the Islamic Republic of Pakistan declares that the
provisions of these Articles shall be so applied to the extent that they are not repugnant to the
Provisions of the Constitution of Pakistan and the Sharia laws.
4. Article 28 – In accordance with Article 28, paragraph 1, of the Convention, the Government of the
Islamic Republic of Pakistan hereby declares that it does not recognize the competence of the
Committee provided for in Article 20.
5. Article 30 – The Government of the Islamic Republic of Pakistan does not consider itself bound
by Article 30, paragraph 1, of the Convention.”
The first and third reservations made by Pakistan, about Article 3, 4, 6, 12, 13 and 16 attracted
many objections by other contracting parties:
“The Government of Australia has examined the reservation made by The Islamic Republic of
Pakistan to the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or
Punishment and now hereby objects to the same for and on behalf of Australia:
The Government of Australia considers that the reservations by the Islamic Republic of Pakistan are
incompatible with the object and purpose of the Convention against Torture and Other Cruel,
Inhuman or Degrading Treatment or Punishment (the Convention).
The Government of Australia recalls that, according to customary international law as codified in the
Vienna Convention on the Law of Treaties, a reservation incompatible with the object and purpose
of a treaty is not permitted.
It is in the common interest of States that treaties to which they have chosen to become party are
respected, as to their object and purpose, by all parties and that States are prepared to undertake any
legislative changes necessary to comply with their obligations under the treaties.
Furthermore, the Government of Australia considers that The Islamic Republic of Pakistan, through
its reservations, is purporting to make the application of the Convention subject to the provisions of
general domestic law in force in The Islamic Republic of Pakistan. As a result, it is unclear to what
extent The Islamic Republic of Pakistan considers itself bound by the obligations of the Convention
and therefore raises concerns as to the commitment of The Islamic Republic of Pakistan to the object
and purpose of the Convention.
The Government of Australia considers that the reservations to the Convention are subject to the
general principle of treaty interpretation, pursuant to Article 27 of the Vienna Convention of the
Law of Treaties, according to which a party may not invoke the provisions of its internal law as
justification for its failure to perform a treaty.
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For the above reasons, the Government of Australia objects to the aforesaid reservations made by
The Islamic Republic of Pakistan to the Convention and expresses the hope that the Islamic
Republic of Pakistan will withdraw its reservations.
This objection shall not preclude the entry into force of the Convention between Australia and The
Islamic Republic of Pakistan.”
_____
“The Government of Finland welcomes the ratification of the Convention against Torture and other
Cruel, Inhuman or Degrading Treatment or Punishment by the Islamic Republic of Pakistan. The
Government of Finland has carefully examined the content of the reservations relating to Articles 3,
4, 6, 8, 12, 13, 16, 28 and 30 of the Convention made by the Islamic Republic of Pakistan upon
ratification.
The Government of Finland notes that the Islamic Republic of Pakistan reserves the right to apply
the provisions of Article 3 so as to be in conformity with the provisions of its laws relating to
extradition and foreigners, and the provisions of Articles 4, 6, 12, 13 and 16 to the extent that they
are not repugnant to the provisions of the Constitution of Pakistan and the Sharia laws.
The Government of Finland notes that a reservation which consists of a general reference to national
law without specifying its content does not clearly define to other Parties to the Convention the
extent to which the reserving States commits itself to the Convention and creates serious doubts as
to the commitment of the reserving State to fulfil its obligations under the Convention. Such
reservations are, furthermore, subject to the general principle of treaty interpretation according to
which a party may not invoke the provisions of its domestic law as justification for a failure to
perform its treaty obligations.
The reservations to Articles 3, 4, 6, 12, 13 and 16 seek to restrict essential obligations of the Islamic
Republic of Pakistan under the Convention and raise serious doubts as to the commitment of the
Islamic Republic of Pakistan to the object and purpose of the Convention. The Government of
Finland wishes to recall that, according to Article 19 (c) of the Vienna Convention on the Law of
Treaties and customary international law, a reservation contrary to the object and purpose of a treaty
shall not be permitted. It is in the common interest of States that treaties to which they have chosen
to become parties are respected as to their object and purpose and that States are prepared to
undertake any legislative changes necessary to comply with their obligations under the treaties.
The Government of Finland therefore objects to the reservations made by the Islamic Republic of
Pakistan in respect of Articles 3, 4, 6, 12, 13 and 16 of the Convention. This objection shall not
preclude the entry into force of the Convention between the Islamic Republic of Pakistan and
Finland. The Convention will thus become operative between the two states without the Islamic
Republic of Pakistan benefiting from its reservations.”
_____
“The Government of the United Kingdom of Great Britain and Northern Ireland has examined the
reservations made by the Government of Pakistan to the Convention [against Torture and other
Cruel, Inhuman or Degrading Treatment or Punishment] on 23 June 2010, which read:
[…]
In the view of the United Kingdom a reservation should clearly define for the other States Parties to
the Convention the extent to which the reserving State has accepted the obligations of the
Convention. Reservations which consist of a general reference to a constitutional provision, law or
system of laws without specifying their contents do not do so.
The Government of the United Kingdom therefore objects to the reservations made by the
Government of Pakistan to Articles 3, 4, 6, 12, 13 and 16.
The United Kingdom will re-consider its position in light of any modifications or withdrawals of the
reservations made by the Government of Pakistan to the Convention.”
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As a result of the objections expressed by various States, Pakistan has withdrawn some of its
reservations, which are now as follows:
“Article 8 – The Government of the Islamic Republic of Pakistan declares the pursuant to Article 8,
paragraph 2, of the Convention, it does not take this Convention as the legal basis for cooperation on
extradition with other States Parties.
Article 28 – In accordance with Article 28, paragraph 1, of the Convention, the Government of the
Islamic Republic of Pakistan hereby declares that it does not recognize the competence of the
Committee provided for in Article 20.
Article 30 – The Government of the Islamic Republic of Pakistan does not consider itself bound by
Article 30, Paragraph 1 of the Convention.”
The validity of treaties: introduction

In order to have a complete overview of the making of treaties, the last question to turn to is the
issue of their validity.
Let’s first introduce the concept, the notion of validity. One must remember that a treaty is a legal
act: it is an instrument governed by international law which embodies the consent of the contracting
parties to certain obligations, those obligations being applicable to a certain object. In order to be
binding under international law, the treaty must be valid, i.e. it must comply with some essential
requirements. Lacking those essential requirements, the instrument will simply not have entered
within the realm of international law.
So, the issue of the validity of treaties is really to determine whether the instrument that looks like a
treaty is somehow entitled to be part of international law and to carry with it the binding force of
international law. If the treaty is invalid, the instrument will somehow be rejected out of the
international legal order, it will be null and void. Of course, this would not make the instrument
disappear from a material, factual, point of view, and the negotiations leading to it would simply
remain historical events that have taken place. But, as the instrument would not be considered as
binding under international law, it would not be part of it and it would remain outside of it. Lacking
essential elements, the invalid treaty would have to be considered as not being part of international
law from its infancy, from the very beginning: invalidity is retroactive.
The grounds for invalidating treaties are listed in the Vienna Convention. And Article 42,
paragraph 1, of the Vienna Convention makes very clear that those grounds are in limited
numbers: only the grounds that are listed in the Convention can be invoked in order to impeach the
validity of a treaty.
- The reason for this is legal security: as it is not easy to conduct international negotiations
leading to the conclusion of a treaty, all those efforts should not be lightly put in danger of
being set aside later if one of the contracting parties, having second thoughts about the
treaty, could too easily get rid of it by pretending that it is not valid.
- However, on the other hand, there is a need to protect the integrity of international law
itself: it cannot be accepted that the force of the law be given to instruments which turn the
law on its head – instruments that indeed exist but only because some essential rules have
been ignored.
And therefore any theory about invalidity of legal acts is precisely about establishing that balance
between legal security and the integrity of the legal order.
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The invalidity of a treaty, as a legal instrument, can stem from three main reasons:
1) First, the treaty can be null and void because the contracting parties had no legal capacity to
enter into it.
2) Second, the treaty can be null and void because consent to it has not been properly given.
3) Third, the treaty can be null and void because its very object is impermissible.
Let’s turn first to the issue of capacity. Article 6 of the Vienna Convention recalls a basic
principle of international law that stems from the equal sovereignty of States: “Every State
possesses capacity to conclude treaties”. Hence, for States, the question of legal capacity is not an
issue. All States have the same and full legal capacity to conclude treaties.
For international organizations, the issue is a little bit more complicated. International
organizations are specialized legal entities and their legal capacity depends on the scope of their
respective competences. Article 6 of the 1986 Vienna Convention simply refers to the rules of the
organization, i.e. most of the time, the treaty establishing the organization, to determine the extent
of the capacity of the organization to conclude treaties. So, the capacity of international
organizations to conclude treaties must be established on a case-by-case basis, taking into account
the organization concerned and the object of the treaty it intends to conclude.Additionally, if the
capacity of the organization to conclude treaties is not explicitly addressed by its rules, the implied
powers doctrine24 may be used in order to consider that, despite the silence of the treaty, the
organization has some capacity to conclude treaties. The implied powers doctrine has notably been
used by the European Court of Justice back in 1971 in a landmark case called the ERTA25 case in
order to justify the conclusion of treaties by the European Economic Community at the time, now
the European Union. One should however remember that the legal capacity of any international
organization, and the scope of such capacity, should be appraised not only by looking at the written
rules of the organization on the issue, but also by taking into account the implied powers doctrine.
Defect of consent (competence)

Because a treaty always results from the exchange of consent between the contracting parties, it is
important that the consent of each of them be properly given.
In order for consent to be properly given, it must, on the one hand, be expressed by a competent
organ to do so and, and on the other hand, if competent, that organ must have given a real and
informed consent.
The question of the competence to express the consent of the contracting State is a matter that is
regulated under the domestic law of the State and under the internal rules of the organization when
the issue is the consent by an international organization. However, States are not entitled to avail
themselves of their domestic law provisions in order to escape their international law obligations.
As recalled by Article 27 of the Vienna Convention: “A party may not invoke the provisions of its
internal law as justification for its failure to perform a treaty”. This is an axiomatic principle of
international law, a principle without which international law would simply not exist. And this is
easy to understand: if international law is indeed the result of the common will of States, in contrast,
domestic law is the result of the unilateral will of one State. Therefore, if a State were entitled, in
24
Which has already been mentioned when talking about international organizations.
25
European Road Transport Agreement.
M. DUPONCHEEL - 65 - 2016-2017
international law, to avail itself of its own will in order to legally justify its failure to perform its
international law commitments, such commitments could always be easily disregarded. And this
would be legal under international law. International law would therefore shoot itself in the foot if it
accepted that a State could decide not to obey international obligations for domestic law reasons.
So, as a matter of principle, no domestic or internal rule can be used in order to defeat an
international law obligation.
However, there is one and only one exception to that principle, and this exception relates to the
competence to express consent to a treaty. That only exception is to be found in Article 46,
paragraph 1, of the Vienna Convention, which reads as follows: “A State may not invoke the fact
that its consent to be bound by a treaty has been expressed in violation of a provision of its internal
law regarding competence to conclude treaties as invalidating its consent unless that violation was
manifest and concerned a rule of its internal law of fundamental importance”.
See how the provision is drafted. It starts from recalling the principle: a State may not invoke the
provision of its internal law. However, the provision states also the exception to that principle,
together with the conditions to be met. There are three conditions for the exception to be successful.
1) The provision of internal law must be about the “competence to conclude treaties” and
nothing else.
2) However, not any internal law provision regarding the competence to conclude treaties can
be invoked: it must be a provision which can be considered “of fundamental importance”.
3) Additionally, the rule of domestic law about the competence to conclude treaties which is of
fundamental importance must not only have been violated, but it must have been manifestly
violated.
It is only if all those three conditions are met that a State may rely on rules of its own domestic law
to escape its international treaty commitments by claiming its consent was not properly given.
Paragraph 2 of Article 46 of the Vienna Convention states that: “A violation is manifest if it would
be objectively evident to any State conducting itself in the matter in accordance with normal
practice and in good faith”.
In the Cameroon v. Nigeria case, discussing the validity of the maritime delimitation established
by an agreement signed by the two Heads of States, the Court considered that constitutional rules
concerning the authority to conclude treaties are indeed rules of fundamental importance. However,
and because Heads of States are presumed under Article 7, paragraph 2, to have full powers and that
this presumption is substantive (cf. supra), the Court added that “a limitation of a Head of State’s
capacity in this respect is not manifest in the sense of Article 46, paragraph 2, unless at least
properly publicized”. And because Nigeria never informed Cameroon of that rule, the Court
rejected Nigeria’s claim according to which its consent to the maritime delimitation agreement was
not properly given. It is important to stress that, in that case, the Nigerian Constitution had changed
several times following internal turmoil. And when the maritime delimitation agreement between
the two Heads of States was concluded, in the mid-1970s, Nigeria was governed by the military.
The government of Nigeria was, under its Constitution, the Supreme Military Council and the chair
of that Council, himself a member of the armed forces, was the Head of State. According to the
Nigerian Constitution at the time, it was for the Supreme Military Council, rather than for the Head
of State, to conclude treaties. So, the Head of State should have submitted the agreement to the
M. DUPONCHEEL - 66 - 2016-2017
Supreme Military Council for having it approved. And this did not happen. However, the violation
of such a constitutional provision was not considered by the Court to be manifest because Nigeria
did not properly inform Cameroon of the specificity of its Constitution. And Cameroon had no
obligation, said the Court, to keep itself informed of the legislative and constitutional developments
in Nigeria.
So, from this case, we can conclude that in order for its violation to be manifest, the domestic rule
of fundamental importance about the competence to conclude treaties must have been made
manifest to the other contracting party. In other words, the rule must have been manifested for its
violation to be manifest.
Defect of consent (genuine and informed consent)

In addition to being expressed by the competent organ of the State, consent to be bound by a treaty
must be genuine and informed.
Therefore, the Vienna Convention establishes that consent can be invalidated if it results from an
error (Article 48), from a fraud (Article 49), from the corruption of the representative of the
State concerned (Article 50), or from coercion exercised on the representative of the State
(Article 51), or coercion exercised on the State itself (Article 52).
We will not dwell upon the issues of error, fraud, corruption, and coercion on the representative of
the State. Those issues are indeed clearly regulated by the Vienna Convention, they are not
conceptually difficult to grasp and, moreover, there is very little – if not no – practice in that regard.
This is because States will always be hesitant to confess that they concluded a treaty by error, by
fraud, corruption, etc. Alleging any of those grounds is confessing some form of weakness,
something that States do not like to do.
This being said, Article 52 (which is coercion on the State itself) deserves a few words of
explanation because it reflects, in the law of treaties, the logical consequences stemming from the
outlawry of war. The provision reads as follows: “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 embodied in
the Charter of the United Nations”.
1) First, the way Article 52 is drafted deserves some explanation.
It does not refer to the threat or use of force in violation of the Charter of the UN, but in
violation of the “principles of international law embodied in the Charter”. In 1969, this was
to accommodate the presence of parties to the Vienna Convention that were not yet
members of the United Nations. But this clearly indicates that the Charter rules on the threat
or use of force are customary rules binding on all States. Those rules are called “principles”
to stress their importance.
2) Second, it is important to consider the nature of the force whose threat or use may entail the
invalidity of the treaty.
Article 52 simply refers to the “threat or use of force”, without any other qualification. Does
that mean that not only military force, but also economic or political coercion are grounds to
invalidate treaties?
The issue was hotly debated during the negotiation of the Vienna Convention, the
negotiators being divided between the Western powers that only accepted that military
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coercion could result in the invalidity of a treaty – the case at point being the ultimatum
imposed by the Nazi government on Czechoslovakia in 1938 by which the Sudetenland was
annexed by Germany following the Munich Agreement – and the newly decolonized and
developing States that wanted to be able to protect themselves against economic and
political coercion.
The compromise that was found in Vienna was to limit coercion as a ground for invalidating
treaties to military coercion under Article 52, because the UN Charter only prohibits the
threat or use of military force. At the same time, it was made clear in a Declaration which is
part of the Final Act of the Vienna Convention that economic and political coercion are
also solemnly condemned and that, in the future, no pressure should be exerted in any form
by any State in connexion with the conclusion of a treaty. In other words, economic and
political pressures should not be resorted to. However, despite being condemned, those
pressures are no grounds for invalidating a treaty.
This being said, one should not be too naive about it and one should not think that States
always refrain from exerting any form of pressure in order to help the conclusion of treaties.
Of course they do, and this is what diplomacy is largely about.
However, the most egregious forms of economic or political pressure could be considered as
possible grounds for international responsibility, which is something different from putting
into question the validity of the treaty resulting from it.
3) Lastly, it is important to note that it is not any threat or any use of armed force which is
ground for treaty invalidity. Indeed, it is only if the threat or use of force is “in violation of
the principles of international law embodied in the Charter of the United Nations” that the
treaty resulting from it is invalid.
Concretely, this means that a peace treaty imposed by the aggressor State would be invalid,
whereas a peace treaty imposed by the victim State acting in self-defence would be
perfectly valid. In other words, not every military coercion is illegal and not every treaty
imposed as a result of the use of force is invalid.
This is perfectly logic and reasonable: from the moment international law prohibits wars of
aggression as we shall see later in the lectures, treaties resulting from such wars cannot be
considered as being validly concluded. Any other solution would turn the prohibition on the
use of force on its head. At the same time, a rule invalidating treaties that have been
imposed as a result of a lawful use of force would be totally counterproductive. Indeed, it
would practically mean that a lawful belligerent would never be entitled to put an end to the
war it won by a legal instrument. And this would be an absurd result.
Jus cogens
Next to capacity and defect of consent, the last reason for invalidating a treaty is that its very object
is illegal because one of its obligations conflicts with a fundamental rule of international law.
Under Article 53 of the Vienna Convention: “A treaty is void if, at the time of its conclusion, it
conflicts with a peremptory norm of general international law. For the purposes of the present
Convention, a peremptory norm of general international law is a norm accepted and recognized by
the international community of States as a whole as a norm from which no derogation is permitted
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and which can be modified only by a subsequent norm of general international law having the same
character”.
In the title of Article 53, peremptory norms of general international law are called in Latin jus
cogens norms. Let us first try to understand the very notion of jus cogens, before turning to its
normative status, the ways it is formed and, finally, give some concrete examples of peremptory
norms.
As such, jus cogens is opposed to jus dispositivum. What does that mean? Simply, that some norms
can be derogated from by agreement between contracting parties – and those norms are called jus
dispositivum, they can be freely disposed of – while others norms cannot be set aside by mutual
agreement. And those norms are peremptory, they are jus cogens. This dichotomy exists in every
domestic legal system: some legal provisions apply in the absence of any particular contract, while
other legal provisions apply despite any contract. And contracts that do not conform with those
peremptory provisions cannot be upheld in a court of law, they are invalid. Peremptory norms
embody the notion of ordre public.
If the notion of jus cogens is not difficult to understand, it is nevertheless quite troubling in a legal
order based on the sovereignty of States, and resulting from their consent. Indeed, jus cogens means
that despite their sovereignty, States are not entitled to validly consent and make treaties about
whatever they wish. Jus cogens is out of the reach of States: it is above them and they must always
comply with it since they cannot escape it by concluding treaties which would pretend to dispose of
it. Any such treaty would be null and void from the start, or, as stated under Article 64 of the
Vienna Convention, it would become void in case a new peremptory norm arises after the treaty
has been concluded.
The conceptual novelty introduced by jus cogens, and the perceived limitation to State sovereignty
it entails, were not easily accepted. For many years, the issue of jus cogens has been very divisive.
However, international courts and tribunals, the European and the Inter-American Courts of
Human Rights, the International Criminal Tribunal for the former Yugoslavia, and finally the ICJ,
have gradually referred to the concept of jus cogens, so that its very notion is undoubtedly part of
today’s international law.
But what is the nature of jus cogens and how do jus cogens norms come to existence? There have
been endless debates about the nature of jus cogens. Is jus cogens part of customary international
law or is it something completely different? Does it belong to the category of general principles, or
to another specific category of sources?
In a case between Belgium and Senegal about the failure by Senegal to prosecute the former Head
of State of Chad accused of acts of torture, the ICJ briefly said this: “In the Court’s opinion, the
prohibition of torture is part of customary international law and it has become a peremptory norm
(jus cogens)”26. The Court went on to refer to practice and to opinio juris. So, from the ICJ’s point
of view, it seems undisputable that jus cogens norms are part of customary international law.
They come to existence through the usual customary process. However, and because each and every
rule of customary international law is not peremptory, jus cogens norms are a special category of
norms within customary international law. This is because of the specific opinio juris that is
required for their formation. Article 53 of the Vienna Convention makes this very clear by saying
26
ICJ, Questions relating to the Obligation to Prosecute or Extradite (Belgium v. Senegal), 20 July 2012, §99.
M. DUPONCHEEL - 69 - 2016-2017
this: “a peremptory norm of general international law is a norm 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 modified only by a subsequent norm of general international law having the same
character”. This is the specific opinio juris.
This is all good and well, but which concrete norms can be said to appertain to jus cogens? If one
takes the threshold expressed by Article 53 seriously, not many rules of customary international law
can be said to be peremptory. It is of course very tempting to resort to the language of jus cogens in
order to affirm that a rule is very important, but this should not be done lightly. So, for the time
being, jus cogens is made of only a few norms. And the collection of norms is not extensive. There
is no official exhaustive list of them, but from the case-law, the following jus cogens norms can be
gathered: the prohibition of wars of aggression; the prohibition of genocide, crimes against
humanity and war crimes; the prohibition of slavery; the prohibition of apartheid, and probably also
of racial discrimination or ethnic cleansing; the prohibition of torture, as recalled above from the
Belgium-Senegal case. There may be other rules appertaining to jus cogens; this short list is not
exhaustive.
Two final remarks about jus cogens:
1) The concept of jus cogens was introduced in the Vienna Convention as a ground for
contesting the validity of treaties, but so far States have hopefully refrained from concluding
treaties that would be contrary to peremptory norms. So, invalidity of treaties for breach of
jus cogens is rather hypothetical.
However, this does not mean that jus cogens is not important as a legal concept: on the
contrary, having peremptory norms within international law profoundly changes that legal
order as it conveys the idea that certain core values are common to mankind and must be
protected by norms that cannot be transgressed. Moreover, and as we shall see later when
discussing international responsibility, serious breaches of peremptory norms entail specific
consequences.
2) Under the Vienna Convention, jus cogens is the only content-oriented ground for treaty
invalidity. In other words, the fact that the treaty is substantially unequal, that one party
takes all the benefit from the treaty while the other bears all the cost of it, this is not a
ground for invalidating the treaty. This may sound unfair, but the substantial inequality of
the respective parties’ obligations under the treaty is not a legal ground for
considering that it is null and void.
This, of course, is without prejudice to a possible defect of consent (cf. supra).
Final note on the invalidity of treaties

The Vienna Convention contains additional rules pertaining to the issue of the validity of treaties. It
is impossible to detail them in this introductory course, but your attention is drawn to the following:
- As a matter of principle, defect of consent can only be invoked by the party whose consent
has been affected. The loss of the right to invoke a ground for invalidating a treaty is
governed by Article 45. Invalidity under Article 51 (coercion of the representative of the
State), Article 52 (coercion of the State) and Article 53 (jus cogens) can always be invoked
because of the gravity of the breach at stake.
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- As a matter of principle, invalidity affects the whole treaty. However, Article 44 provides
for the separability of certain provisions, in order to “save” certain parts of the treaty and
limit the material scope of invalidity. Separability is excluded if the invalidity is based on
Articles 51, 52 or 53.
- As a matter of principle, invalidity is retroactive. However, this principle is tempered
according to the rules contained in Articles 69 and 71 which govern the temporal scope of
invalidity.
- Articles 65 and 66 provide for a procedure to be applied between parties to the Vienna
Convention in case one of them alleges the invalidity of a treaty. In particular, disputes
relating to the alleged invalidity of a treaty based on Article 53 or Article 64 (i.e. jus cogens)
can be submitted to the ICJ. However, States are entitled to make reservations to Article 66,
so as to exclude their consent to the jurisdiction of the Court in that regard.
III. GENERAL PRINCIPLES
General principles according to Article 38 of the ICJ Statute

Among the sources of international law listed by Article 38 of the ICJ Statute, paragraph 1, c),
refers to “the general principles of law recognized by civilized nations”.
This sentence is taken from the Statute of the Permanent Court of International Justice. That Statute
was drafted in 1920 and this explains the reference to “civilized nations”, which sounds very
Eurocentric and pretty out-dated by now since all nations are today presumed to be equally
civilized. Back in 1920, about a century ago, international law was not as much developed as it is
today. Therefore, the problem that the drafters of the PCIJ Statute were facing was the issue of non
liquet, i.e. the situation were the Court would be asked to decide a case but would not find any
treaty nor any rule of customary international law to be applied to the facts of the dispute. And a
court of law cannot simply say: ‘I have jurisdiction, but I cannot judge this case because there is no
law to be applied’. So, the concept of general principles of law was introduced to fill the gaps that
could be left in case there would be no relevant treaty or custom. Instead of leaving the Court the
possibility of inventing new rules, the drafters directed the Court to look at “general principles of
law recognized by civilized nations”. What does that mean? It is very clear that in 1920, the drafters
of the PCIJ Statute meant to refer to rules of domestic law that are common to the main legal
systems of the world: civil law, common law, Chinese law, etc. In other words, the legal principles
that are common to domestic legal systems are, because they are common, considered to be rules
of international law. As we can see, consent serves again as the foundation of international law.
True, there is no formal consent as with treaties and neither is there implicit consent nor
acquiescence, as with customary rules, but consent exists nevertheless because of the convergence
of domestic laws.
If States want the same rule for themselves, Article 38, paragraph 1, c) somehow presumes they do
not object that such rule, common to their respective domestic legal systems, be considered by the
Court as a rule of international law, in the form of a general principle of law. At the same time,
general principles transcend the issue of consent understood in a very narrow and positivistic way.
Indeed, if similar rules are to be found in domestic legal systems all over the world, is it not because
they somehow derive from, and express, some essential requirements of law which do not depend
on voluntarism? In that sense, general principles of law would be close to natural law, reflecting
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legal necessities stemming from the common conscience of mankind wherever. In other words,
through general principles of law, the drafters of the PCIJ Statute managed to reconcile two
opposite schools of jurisprudence and legal theory: positivism and naturalism.
This being said, if one wants to go beyond some very elementary common rules making general
principles, the problem with such construction is that it would require the Court to embark on some
lengthy comparative law exercises. This could prove very difficult due to the increase number of
States and of the domestic legal systems that would have to be taken into account and compared.
Moreover, it would considerably slow down the procedure if conducted in a very rigorous manner.
Hopefully, and because general principles were conceived as having a subsidiary character and
apply in the absence of treaty or custom, the extraordinary development of international law
through treaties and through customary rules has limited the need to rely on general principles
within the meaning of Article 38 to find rules filling the gaps as it were in the system of
international law. However, if you read carefully judgments of international courts and tribunals,
notably those of the ICJ, you will notice that the words “general principles” are very often used.
But, most of the time, by those words the courts actually refer to customary international law. And
instead of referring to “general principles of law” as in Article 38, the judgments very often refer to
“general principles of international law”. By this, it is the importance or the well-established
character of the customary rule at stake that is emphasized. Different words are used, but they point
to rules having the nature of customary international law.
By the same token, Article 2 of the UN Charter for instance lists “Principles” according to which
the UN must act, and those principles include customary rules. Also, the UN General Assembly
adopted in 1970 a “Declaration on Principles of International Law concerning Friendly Relations
and Co-operation among States”, which the ICJ has considered to reflect customary international
law. The Court has notably said so, first in the Nicaragua v. United States case and then in the
advisory opinion on the unilateral declaration of independence in respect of Kosovo. So, there is
nothing problematic in using the words “principles” or “general principles” when actually speaking
about custom. Sometimes, the words “general principle of international law” are used to refer to an
axiomatic principle of international law, a principle without which international law would not be
what it is. For instance, the equal sovereignty of States or pacta sunt servanda, etc. But there again,
such basic principles have also a customary character.
General principles in ICJ cases

Ø “General principle of law” within the meaning of Article 38
The general principle of law is the “principle” as understood in Article 38 of the Statute of the ICJ.
The Court expressly pronounced a general principle of law in its advisory opinion of the 21 of June
1971. The question put by the Security Council of the United Nations was: “What are the legal
consequences for States of the continued presence of South Africa in Namibia notwithstanding
Security Council resolution 276 (1970)?”.
In 1966, the General Assembly adopted resolution 2145 (XXI) whereby it decided that the Mandate
– established under Article 22 of the Covenant of the League of Nations – was terminated and that
South Africa had no further right to administer the territory of South-West Africa (Namibia).
In 1971, acting on a request for an advisory opinion from the United Nations Security Council, the
ICJ ruled that the continued presence of South Africa in Namibia was illegal and that South Africa
M. DUPONCHEEL - 72 - 2016-2017
was under an obligation to withdraw its administration from Namibia immediately. It also ruled that
all member states of the United
Nations were under an obligation to
recognise the illegality of South
Africa’s presence in Namibia.
Discussing the power to terminate a
mandate for misconduct of the
mandatory, the Court observed that
according to a general principle of
law the right to terminate a mandate
on account of a breach must be
presumed to exist, even if unexpressed:
“President Wilson’s proposed draft did not include a specific provision for revocation, on the
assumption that mandates were revocable. What was proposed was a special procedure reserving
'to the people of any such territory or governmental unit the right to appeal to the League for the
redress or correction of any breach of the mandate by the mandatory State or agency or for the
substitution of some other State or agency, as mandatory'. That this special right of appeal was not
inserted in the Covenant cannot be interpreted as excluding the application of the general principle
of law according to which 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 agreement.” (ICJ, Legal
Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa)
notwithstanding Security Council Resolution 276 (1970), Advisory Opinion of 21 June 1971, ICJ
Reports, p.16, para. 98)
Ø “General principle” or “principle”

The Court is using the word “principle” with the expression “general principle”. The content of
such principles is immediately clarified. Such an expression is rarely used, but the Court has
notably affirmed, in relation to international organizations, the “general principle of speciality” as
we have already seen in the Legality of the Use by a State of Nuclear Weapons in Armed Conflict
advisory opinion. The Court pointed out that international organizations do not, unlike States,
possess a general competence, but are governed by the “principle of speciality”:
“It follows from the various instruments mentioned above that the WHO Constitution can only be
interpreted, as far as the powers conferred upon that Organization are concerned, by taking due
account not only of the general principle of speciality, but also of the logic of the overall system
contemplated by the Charter. If, according to the rules on which that system is based, the WHO has,
by virtue of Article 57 of the Charter, "wide international responsibilities", those responsibilities are
necessarily restricted to the sphere of public "health" and cannot encroach on the responsibilities of
other parts of the United Nations system. And there is no doubt that questions concerning the use of
force, the regulation of armaments and disarmament are within the competence of the United
Nations and lie outside that of the specialized agencies. " (ICJ, Legality of the Use by a State of
Nuclear Weapons in Armed Conflict, Advisory Opinion of 8 July 1996, ICJ Reports, p. 226, para.
26)
Thus, the Court considered that the question raised in the request for an advisory opinion submitted
to it by the WHO does not arise “within the scope of [the] activities” of that Organization as defined
by its Constitution.
The Court also qualified the obligation to make reparation in an adequate form to be “the general
principle on the legal consequences of the commission of an internationally wrongful act” in the
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Avena and other Mexican Nationals case. On 9 January 2003, Mexico instituted proceedings
against the United States of America in a dispute concerning alleged breaches of Articles 5 and 36
of the Vienna Convention on Consular Relations of 24 April 1963 in relation to the treatment of a
number of Mexican nationals who had been tried, convicted and sentenced to death in criminal
proceedings in the United States. Having concluded that in most of the cases brought before the
Court by Mexico, there has been a failure to observe the obligations in the Vienna Convention
relating to consular assistance, the Court proceeded to the examination of such breaches and of the
legal remedies therefore:
“The general principle on the legal consequences of the commission of an internationally wrongful
act was stated by the Permanent Court of International Justice in the Factory at Chorzow case as
follows: 'It is a principle of international law that the breach of an engagement involves an
obligation to make reparation in an adequate form.' (Factory at Chrozow, Jurisdiction, 1927,
P.C.I.J., Series A, No. 9, p. 21). What constitutes 'reparation in an adequate form' clearly varies
depending upon the concrete circumstances surrounding each case and the precise nature and
scope of the injury, since the question has to be examined from the viewpoint of what is the
'reparation in an adequate form' that corresponds to the injury.” (ICJ, Avena and Other Mexican
Nationals (Mexico v. United States of America), Judgment of 31 March 2004, ICJ Reports, p. 12,
para. 119)
In the case of the Frontier Dispute (Burkina Faso/Republic of Mali), the ICJ qualified uti possidetis
as follows:
“It is a general principle, which is logically connected with the phenomenon of the obtaining of
independence, wherever it occurs. Its obvious purpose is to prevent the independence and stability of
new States being endangered by fratricidal struggles provoked by the challenging of frontiers
following the withdrawal of the administering power.” (ICJ, Frontier Dispute (Burkina
Faso/Republic of Mali), Judgment of 22 December 1986, ICJ Reports, p. 554, para. 20)
Ø “Principle” as customary law

In the WHO advisory opinion, Avena case and Burkina Faso/Mali case referred to above, the
customary nature of the principles found by the Court to exist was not made explicit. However, in
the Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of
America) case, the Court was explicit about the customary nature of the principle it affirmed:
“A further confirmation of the validity as customary international law of the principle of the
prohibition of the use of force expressed in Article 2, paragraph 4, of the Charter of the United
Nations may be found in the fact that it is frequently referred to in statements by State
representatives as being not only a principle of customary international law but also a fundamental
or cardinal principle of such law.” (ICJ, Military and Paramilitary Activities in and against
Nicaragua (Nicaragua v. United States of America), Judgment of 27 June 1986, ICJ Reports, p. 14,
para. 190)
The principle formulated in the Charter is considered as being of customary nature. In the advisory
opinion on the Accordance with international law of the unilateral declaration of independence in
respect of Kosovo, the Court recalls that:
“[...] the principle of territorial integrity is an important part of the international legal order and is
enshrined in the Charter of the United Nations, in particular in Article 2, paragraph 4 [...]” (ICJ,
Accordance with international law of the unilateral declaration of independence in respect of
Kosovo, Advisory Opinion of 22 July 2010, ICJ Reports, p. 403, para. 80.)
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IV. UNILATERAL ACTS OF STATES
Unilateral acts of States

As we have seen, the creation of international law very much depends on the existence of an
agreement between States. International law comes into existence as a result of consent of several
subjects. Reciprocity is thus at the heart of the creation of international law. In a very classical
way, a new obligation results from the acceptance of an offer. Moreover, the sovereign equality of
States is repugnant to the idea that one of them could impose legal obligations on the others, absent
their consent. This would indeed be tantamount to an imperial legal order and it is completely alien
to the fundamentals of the international legal order.
However, why would it not be possible for a State to bind itself vis-à-vis other States by its own
will? If imposing obligations on others without their consent is impossible, what about imposing
obligations on oneself, through what can be called a unilateral act?
That issue arose in the Nuclear Tests cases, a dispute between Australia and New Zealand on the
one hand, and France on the other. The case was decided in 1974, at a time France was still
conducting atmospheric tests of nuclear weapons in the South Pacific Ocean. The main firing site
was the Mururoa atoll, some 6000km to the East of the Australian mainland. Australia and New
Zealand claimed that those atmospheric tests were not consistent with applicable rules of
international law and they requested the Court to order France not to “carry out any further such
tests”. France contested the jurisdiction of the Court. It decided not to appear in the proceedings and
simply asked the Court to remove the case from the list. By two separate judgements of 20
December 1974, the Court decided that the claims by Australia and New Zealand no longer had any
object and that it was therefore not called to give any decision thereon.
Such outcome was very much favourable to France, but it also came with a legal cost for France.
Indeed, the Court reached its conclusion following some public statements made by the highest
authorities of the French Republic: President Giscard d’Estaing, then also Prime Minister Jacques
Chirac, together with the French Foreign Affairs Minister and the Minister of Defence. All of them
had made consistent and public declarations according to which the ongoing atmospheric tests by
France would be the very last of this type conducted by the Republic.
The Court considered that when it is the intention of the State making such declarations to become
bound according to its terms:
“that intention confers on the declaration the character of a legal undertaking, the State being
thenceforth legally required to follow a course of conduct consistent with the declaration. […] An
undertaking of this kind, if given publicly, and with the intent to be bound, even though not made
within the context of international negotiations, is binding.
In these circumstances, nothing in the nature of a quid pro quo nor any subsequent acceptance of
the declaration, nor even any reply or reaction from other States, is required for the declaration to
take effect, since such a requirement would be inconsistent with the strictly unilateral nature of the
juridical act by which the pronouncement by the State was made.”
Of course, not every unilateral act or declaration implies an obligation: everything depends on the
intention conveyed by the language used and the surrounding circumstances, irrespective of the
written or oral form of the undertaking.
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To know whether a unilateral declaration is a binding undertaking can only be decided on a case-
by-case basis, but the Nuclear Tests cases made clear that there is no inherent impediment for the
creation of new international obligations through unilateral acts of States.
And as a matter of fact, the Court famously stressed the following:
“One of the basic principles governing the creation and performance of legal obligations, whatever
their source, is the principle of good faith. Trust and confidence are inherent in international co-
operation, in particular in an age when this co-operation in many fields is becoming increasingly
essential. Just as the very rule of pacta sunt servanda in the law of treaties is based on good faith, so
also is the binding character of an international obligation assumed by unilateral declaration.
Thus interested States may take cognizance of unilateral declarations and place confidence in them,
and are entitled to require that the obligation thus created be respected.”
So, said the Court, France is legally bound to respect its promises. The logical consequence of
taking the French declarations as binding unilateral undertakings was to consider that the objective
of both applicant States had in effect been accomplished: France had promised not to carry out any
further nuclear tests in the atmosphere. Cessation of those tests was at the heart of the request by
Australia and New Zealand and cessation was legally guaranteed by the French undertakings.
Therefore, the dispute brought before the Court had disappeared and there was no reason for the
Court to adjudicate any further.
Of course, had Australia or New Zealand claimed reparation for the possible environmental
pollution resulting from the nuclear fall-out, the Court would still have had to decide on that claim.
But because they did not make any reparation claim, the case was simply dismissed by the Court.
Timor-Leste and Australia at the ICJ

On 3 December 2013, in the Australian Capital Territory, agents of Australia acting under the
Australian Security Intelligence Organisation Act seized documents and data from the business
premises of a legal adviser working for the Democratic Republic of Timor-Leste in a pending
arbitration between Timor-Leste and Australia under the Timor Sea Treaty of 20 May 2002.
Two weeks later, Timor-Leste filed an Application at the ICJ against Australia for what it
considered to be various breaches of international law. Timor-Leste also requested from the Court
several provisional measures pending a decision on the merits, notably that the documents seized by
Australia be immediately sealed and delivered into the custody of the ICJ and that Australia destroy
all copies of those documents and stop interfering with Timor-Leste’s legal team.
Australia resisted Timor-Leste’s request for provisional measures, arguing that they were not
necessary following the written unilateral undertaking made in the name of Australia by its
Attorney-General in the course of the ICJ proceedings. The Attorney-General’s written undertaking
read as follows:
“that until final judgment in this proceeding or until further or earlier order of the Court:
1. I will not make myself aware or otherwise seek to inform myself of the content of the Material or
any information derived from the Material;
2. Should I become aware of any circumstance which would make it necessary for me to inform
myself of the Material, I will first bring that fact to the attention of the Court, at which time further
undertakings will be offered;
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3. The Material will not be used by any part of the Australian Government for any purpose other
than national security purposes (which include potential law enforcement referrals and
prosecutions);
4. Without limiting the above, the Material, or any information derived from the material, will not be
made available to any part of the Australian Government for any purpose relating to the
exploitation of resources in the Timor Sea or related negotiations, or relating to the conduct of:
(a) these proceedings;
(b) the proceedings in the Arbitral Tribunal [constituted under the 2002 Timor Sea
Treaty].”
The Court duly took note of that undertaking and elaborated further:
“44. The Court further notes that the Agent of Australia stated that 'the Attorney-General of the
Commonwealth of Australia [had] the actual and ostensible authority to bind Australia as a matter
of both Australian law and international law'. The Court has no reason to believe that the written
undertaking dated 21 January 2014 will not be implemented by Australia. Once a State has made
such a commitment concerning its conduct, its good faith in complying with that commitment is to be
presumed.” (ICJ, Questions relating to the seizure and detention of certain documents and data
(Timor-Leste v. Australia), Provisional measures, 3 March 2014 (underscored))
The Court recognized that the undertaking made “a significant contribution towards mitigating the
imminent risk of irreparable prejudice” to Timor-Leste’s rights, particularly its right to the
confidentiality of the material seized being duly safeguarded, but that it did not, however, “remove
this risk entirely”. For that reason, the Court ordered on 3 March 2014 some provisional measures.
The Order of 3 March 2014 was modified by an Order of 22 April 2015, upon the request of
Australia, after it indicated its willingness to return the documents and data seized, together with
any copies thereof.
V. UNILATERAL ACTS OF INTERNATIONAL ORGANIZATIONS
Unilateral acts of international organizations

As we have seen supra, the principles of speciality and conferral are basic principles of the law of
international organizations: international organizations are each established for specific purposes,
they receive competences from their member States and their legal personality is accordingly
limited.
Despite their similarities, international organizations are different by their respective purposes and
institutional frameworks. In some organizations, organs are established to embody the organization
and they are each differently tasked. Sometimes, those organs are conferred a law-making capacity.
In other words, the basic instrument establishing the organization creates a typology of juridical
acts that the organization is entitled to adopt through its various organs. The basic instrument will
also detail the procedure for the adoption of those acts and the legal effect they have for the member
States of the organization, and eventually also the effect they have on the individuals and
corporations within those member States. Those acts are unilateral acts of the international
organization and their basic legal effect is determined by the basic instrument.
When unilateral acts of the organization are binding, they are sometimes referred to as forming
together a body of rules called “secondary legislation” of the organization or the “internal law” or
“internal rules” of the organization.
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And the European Union offers the most striking example of an organization entitled to adopt
regulations, directives and decisions legally binding on its member States and eventually also on the
citizens of the Union.
As a matter of principle, this does not raise any theoretical problem: the founding members of the
organization have consented to its basic instrument, knowing that under that instrument the
organization could, according to the conditions stated therein, take the binding measures, and those
measures being binding on them. The consent given to the basic instrument – and therefore to the
rules it contains for the creation of unilateral acts by the organization – explains why the binding
character of those acts exists as determined by the basic instrument. It does not contradict the
principle of State sovereignty. Thus, unilateral acts of international organizations derive from their
respective basic instruments and are subordinate to it. They take their binding force from the basic
instrument, which in turn, as a treaty, takes its binding force from consent given to it.
Two considerations follow from this basic articulation between the treaty establishing the
organization and the unilateral acts adopted thereunder:
1) Because unilateral acts of international organizations derive from and are subordinated to
the basic instrument establishing the organization, their validity depends on their
conformity with the rules and procedures established under the basic instrument for
their adoption.
In other words, there is a hierarchy between the basic instrument and the secondary
legislation, and the latter must conform with the former. If unilateral acts do not conform
with the basic instrument, they should be considered as null and void, and therefore
deprived of any legal effect.
Sometimes, a court is established within the organization to adjudicate on the validity of its
secondary legislation. This is the case, for instance, with the European Court of Justice as
the Court of the European Union.
2) There is not only a normative chain of validity between the basic instrument establishing
the organization and the unilateral acts adopted by the organization under the basic
instrument. The same normative chain also creates a continuity between the legal nature of
the basic treaty and the secondary legislation.
If the treaty establishing the organization has an international legal character, then the
unilateral acts of the organization will share the same legal nature. In other words, they will
also be considered, from the point of view of international law, as instruments of
international law, as sources of international law.
Kosovo ICJ’s advisory opinion

In 2008, the General Assembly of the United Nations requested the ICJ to deliver an advisory
opinion on the conformity of the unilateral declaration of independence in respect of Kosovo with
international law.
Among the various questions that arose, one related to the legal nature of what has been called the
“Constitutional Framework for Provisional Self-Government” of Kosovo. If that Constitutional
Framework was considered to have an international legal character, the Court had to examine the
conformity of the declaration of independence with it. If the Constitutional Framework was rather
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considered to have a domestic law character, there was no need to assess the conformity of the
declaration of independence with it because the Court had only been requested to assess the
conformity of the declaration of independence with international law.
So, the question was: “was the ‘Constitutional Framework’ to be considered as international law or
as internal law?”. It was clear that, by its name, object and content, that Framework very much
resembled some domestic constitutional document.
However, the ICJ considered that it had an international legal character, rather than an internal
law character. The reason for this was that the Constitutional Framework was a regulation adopted
by UNMIK, the UN mission to Kosovo, which was established by the Security Council resolution
1244 (1999), which in turn had been adopted under the UN Charter. In other words, the Court ruled
that the Constitutional Framework had an international legal character and had to be considered as
international law because it derived its binding force from a Security Council resolution, itself
deriving its binding force from the Charter. The international law nature of the Charter is shared by
the unilateral acts, and sub-unilateral acts, adopted under it:
“88. The Court observes that UNMIK regulations, including regulation 2001/9, which promulgated
the Constitutional Framework, are adopted by the Special Representative of the Secretary-General
on the basis of the authority derived from Security Council resolution 1244 (1999), notably its
paragraphs 6, 10, and 11, and thus ultimately from the United Nations Charter. The Constitutional
Framework derives its binding force from the binding character of resolution 1244 (1999) and thus
from international law. In that sense it therefore possesses an international legal character.
[...] 93. From the foregoing, the Court concludes that Security Council resolution 1244 (1999) and
the Constitutional Framework form part of the international law which is to be considered in
replying to the question posed by the General Assembly in its request for the advisory
opinion.” (ICJ, Accordance with international law of the unilateral declaration of independence in
respect of Kosovo, Advisory Opinion of 22 July 3010, ICJ Reports, p. 403).
This is what the ICJ ruled, and it did so from the point of international law. In some
organizations, and notably within the European Union, the secondary legislation produced
by the organization is also said to be part of an autonomous legal order, distinct from
international law. However, one needs to keep in mind that the international legal character
(or nature) of certain rules does not exclude the possibility that the same rules share also
the legal character of another legal order, so that they might be considered in some settings
as rules of international law, and in other settings as rules of a distinct legal order. For a
legal rule, having a dual legal nature is not impossible.
“89. At the same time, the Court observes that the Constitutional Framework functions as part of a
specific legal order, created pursuant to resolution 1244 (1999), which is applicable only in Kosovo
and the purpose of which is to regulate, during the interim phase established by resolution 1244
(1999), matters which would ordinarily be the subject of internal, rather than international, law.
Regulation 2001/9 opens with the statement that the Constitutional Framework was promulgated
“[f]or the purposes of developing meaningful self-government in Kosovo pending a final settlement,
and establishing provisional institutions of self-government in the legislative, executive and judicial
fields through the participation of the people of Kosovo in free and fair elections.” The
Constitutional Framework therefore took effect as part of the body of law adopted for the
administration of Kosovo during the interim phase. The institutions which it created were
empowered by the Constitutional Framework to take decisions which took effect within that body of
law. In particular, the Assembly of Kosovo was empowered to adopt legislation which would have
the force of law within that legal order, subject always to the overriding authority of the Special
Representative of the Secretary-General.”
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UN General Assembly resolutions and customary law

The General Assembly of the United Nations consists of all the members States, each having one
vote at the Assembly.
The General Assembly27 has very wide functions and, as under Article 10 of the Charter, it may
“discuss any questions or any matters within the scope of the present Charter”.
In contrast with its very wide functions, the General Assembly has limited powers.
Of course, it has some administrative powers, on matters internal to the UN. For instance:
- Under Article 17 of the Charter, the General Assembly approves the budget of the
organization;
- Under Article 18 and Article 23, it elects non-permanent members of the Security Council;
- Under the Statute of the ICJ (which is part of the Charter), it takes part to the election of
judges of the Court.
However, outside those few internal administrative powers, the General Assembly has no power to
take binding measures on member States. The General Assembly is not a parliament of the world; it
does not make law for the planet as it may only make recommendations to member States. Not
decisions, recommendations28.
Therefore, as a matter of principle and outside the internal administrative scope of its
responsibilities, the General Assembly and the resolutions it adopts are not binding under
international law. Therefore, they should be considered as political documents, rather than as legal
instruments. Resolutions of the General Assembly offer a clear example of unilateral acts of an
international organization lacking any legal effect, because the basic instrument establishing the
organization – in this case, the UN Charter – says so.
Of course, resolutions of the General Assembly can have an important political impact and this is
why States often spend a considerable amount of time and energy lobbying and negotiating every
single word of certain resolutions addressing a specific crisis in the world, or a specific subject in
more general terms. But, as such, again, those resolutions are not binding as such.
However, and despite being deprived of any binding character as unilateral acts of the UN, some
resolutions adopted by the General Assembly may nevertheless convey rules of international law.
This is because they reflect pre-existing customary rules. In other words, some resolutions of the
General Assembly can be considered as having a declaratory character: they declare, they make
explicit rules of customary international law that exist already. As mentioned earlier, a clear
example of this phenomenon is to be found in Resolution 2625 of 1970, which is entitled
“Declaration on Principles of International Law concerning Friendly Relations and Co-operation
among States”. That resolution has been considered in several cases by the ICJ to reflect customary
international law.
Of course, not every resolution can be said to reflect customary rules and, on a case-by-case basis,
one must pay special attention to the object of the resolution, the words it uses, the debates leading
27
Later in the course, when discussing the rules relating to international peace and security, we shall see the interplay
between the General Assembly and the Security Council and we shall also closely study the powers and the functions of
the Security Council, and the legal effects of its resolutions.
28
As we shall see later in the course, this is in sharp contrast with the powers of the Security Council.
M. DUPONCHEEL - 80 - 2016-2017
to its adoption and the political support it enjoyed when being adopted: was it a unanimous or near
unanimous vote, or were States deeply divided along political or geographical lines? Did they make
declarations about the legal content of the resolution and what did they say? Does the resolution use
verbs like “must” or rather “encourages”, “shall” rather than “should”, etc.?
On the other hand, some General Assembly resolutions may not reflect customary international law
on the very day of their adoption, but they may help to bring about new customary rules by the
fact that they encourage States to behave in a certain way while at the same time expressing a
certain collective opinio juris (constitutive character). For instance, it may be argued that
Resolution 1514 on the “Granting of Independence to Colonial Countries and Peoples” was not
really conveying existing customary rules when it was adopted in December 1960. However, it
expressed a strong collective opinio juris of States and encouraged the practice of decolonization
that was already under way. So much so that 10 years later, when Resolution 2625 was adopted in
October 1970, it was very clear by then that the “principle of equal rights and self-determination of
peoples” – understood as the right of colonial peoples to become independent States – had
undoubtedly become a “principle of international law”, i.e. a basic rule of customary international
law.
To conclude, here’s a quote from an advisory opinion of 1996 relating to the legality of the threat or
use of nuclear weapons, where the ICJ said the following:
“The Court notes that General Assembly resolutions, even if they are not binding, may sometimes
have normative value. They can, in certain circumstances, provide evidence important for
establishing the existence of a rule or the emergence of an opinio juris.
To establish whether this is true of a given General Assembly resolution, it is necessary to look at its
content and the conditions of its adoption; it is also necessary to see whether an opinio juris exists
as to its normative character.
Or a series of resolutions may show the gradual evolution of the opinio juris required for the
establishment of a new rule.”
Resolutions adopted by the UN Security Council constitute important unilateral acts of the UN29.
Last year’s General Assembly resolutions

The General Assembly meets every year in regular sessions.
See http://www.un.org/en/ga/68/resolutions.shtml for the 300+ resolutions adopted during the 68th
session of the UN General Assembly.
VI. SOFT LAW
Soft law
All the sources reviewed so far – customary international law, treaties, general principles of law,
unilateral acts of States and unilateral acts of international organizations – are clearly binding under
international law when the conditions for their coming into legal existence are met.
The question to be asked now is whether those formal sources and those formal processes are the
only ones by which rules of international law can be created or whether international normativity
29
They will be extensively addressed later in the course, i.e. on Week 8 when addressing international peace and
security. The powers of the Security Council, voting procedure and legal effects of its resolutions will be closely studied
then.
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can also arise through other processes, processes that are probably less formal and less
institutionalized, but that nevertheless result in instruments having some legal character.
The word “soft law” has been coined to cover this phenomenon. It refers to a wide range of
instruments and documents adopted by a great variety of actors30 – instruments whose normative
status is unclear but which nevertheless carry a certain weight and a certain influence that brings
them close to having the status of legal norms. All those instruments, those documents, are not legal
instruments sensu stricto, but they nevertheless exert a great influence across national borders. To a
certain extent soft law instruments are complied with and are used as instruments of governance.
However, the word “soft law” is ambiguous because it gives the impression that law would exist in
various degrees. The law resulting from the processes that we have studied so far would be “hard
law”, and the rest, all the other documents having some normative pretention, would be “soft law”.
The problem is that if law comes in various degrees (hard and soft), it runs the risk of loosing its
specificity, which is precisely its bindingness.
N.B. There is no doubt that legal obligations can be quite different from each other (e.g. an
obligation of means is not to be confused with an obligation of result). Despite their variety in terms
of what must be done in order to comply with them, all those different obligations are nevertheless
equally binding in law. An obligation of means is not less binding than an obligation of result, if
both are for instance to be found in treaties.
The problem with “soft law” is that the notion seems to suggest that there might be some
instruments that are less binding, as it were, than others, but that would still be legal instruments.
This is problematic and doubtful: either there is a legal command, or there is no legal command; it
cannot really be in between.
Sometimes, it is very clear that the document at stake is not a legal instrument. This is notably the
case:
- When the people drafting the document have no authority to make law (e.g. a professional
association of manufacturers issuing technical standards for the making and size of bicycle
tires);
- When the drafters have some authority to make law but have clearly no intention to bind
themselves under the law (e.g. when States contract gentlemen’s agreements that look like
treaties but are on purpose not legally binding, or when the G8 heads of States issue a
statement, or when a world conference makes an action plan to combat poverty).
In all those cases and despite having eventually a great influence on the conduct of governments,
those instruments are clearly not legally binding and they do not appertain to any category of law,
be it hard or soft.
But what happens when things are not as clear as that? Should one presume some legal force,
until and unless it is established that the instrument, the document, is not binding? Or should one
presume the opposite: not legal until proven legal?
30
For instance, one can think about technical or industrial standards adopted by associations of certain manufacturers,
or informal decisions taken by the central bankers of the major economies of the world, or tests designed by education
professionals in order to rank schools, etc.
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Legal certainty requires the latter: international law is presumed to come into existence through the
formal processes that we have studied, while it should be presumed that any other process does not
result in the creation of new rules of international law, unless otherwise established.
This being said, some documents that are clearly not legal instruments can not only have a great
bearing on the behaviour of a variety of actors, but they can also be used as benchmarks for the
purpose of establishing whether an international law obligation has been duly complied with or not.
Ø E.g. under a treaty, the riparian States of a river agree that they have an obligation to
prevent the pollution of the river. In particular, they agree that industrial plants under their
control that are discharging effluents in the river should always use the best available
technologies. In such a situation and in order to assess whether the obligation to prevent
pollution through the duty to impose the use of the best available technologies in industry
has been complied with, it is necessary to turn to the industry standards. Those standards
may not be legally binding instruments, but they will need to be referred to in order to assess
whether the legal obligation has been complied with or not. Therefore, indirectly, those
standards have a legal bearing. But it would be a wrong conceptual shortcut to consider that
they are legally binding as such.
Reading: ICJ Pulp Mills on the River Uruguay case

The example used above is taken from a case decided in 2010 by the ICJ.
Please read the following excerpts of the judgment and try to identify the additional legal element
which explains that the Court had no difficulty in using the “ICCP–BAT” document of the
European Commission as the relevant instrument for assessing Uruguay’s compliance with its
substantive obligations under the 1975 Uruguay River Statute.
“220. Argentina maintains that Uruguay has failed to take all measures to prevent pollution by not
requiring the mill to employ the “best available techniques”, even though this is required under
Article 5 (d) of the POPs Convention, the provisions of which are incorporated by virtue of the
“referral clause” in Article 41 (a) of the 1975 Statute. According to Argentina, the experts’ reports
it cites establish that the mill does not use best available techniques and that its performance is not
up to international standards, in the light of the various techniques available for producing pulp.
Uruguay contests these claims. Relying on the CIS, the second Hatfield report and the audit
conducted by AMEC at the IFC’s request, Uruguay asserts that the Orion (Botnia) mill is, by virtue
of the technology employed there, one of the best pulp mills in the world, applying best available
techniques and complying with European Union standards, among others, in the area.
221. Argentina, however, specifically criticizes the absence of any “tertiary treatment of effluent”
(i.e., a third round of processing production waste before discharge into the natural environment),
which is necessary to reduce the quantity of nutrients, including phosphorus, since the effluent is
discharged into a highly sensitive environment. The mill also lacks, according to Argentina, an
empty emergency basin, designed to contain effluent spills. Answering a question asked by a judge,
Argentina considers that a tertiary treatment would be possible, but that Uruguay failed to conduct
an adequate assessment of tertiary treatment options for the Orion (Botnia) mill.
222. Uruguay observes that “the experts did not consider it necessary to equip the mill with a
tertiary treatment phase”. Answering the same question, Uruguay argued that, though feasible, the
addition of a tertiary treatment facility would not be environmentally advantageous overall, as it
would significantly increase the energy consumption of the plant, its carbon emissions, together with
sludge generation and chemical use. Uruguay has consistently maintained that the bleaching
technology used is acceptable, that the emergency basins in place are adequate, that the mill’s
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production of synthetic chemical compounds meets technological requirements and that the
potential risk from this production was indeed assessed.
223. To begin with, the Court observes that the obligation to prevent pollution and protect and
preserve the aquatic environment of the River Uruguay, laid down in Article 41 (a), and the exercise
of due diligence implied in it, entail a careful consideration of the technology to be used by the
industrial plant to be established, particularly in a sector such as pulp manufacturing, which often
involves the use or production of substances which have an impact on the environment. This is all
the more important in view of the fact that Article 41 (a) provides that the regulatory framework to
be adopted by the Parties has to be in keeping with the guidelines and recommendations of
international technical bodies. 224. The Court notes that the Orion (Botnia) mill uses the bleached
Kraft pulping process. According to the December 2001 Integrated Pollution Prevention and
Control Reference Document on Best Available Techniques in the Pulp and Paper Industry of the
European Commission (hereinafter “IPPC- BAT”), which the Parties referred to as the industry
standard in this sector, the Kraft process already accounted at that time for about 80 per cent of the
world’s pulp production and is therefore the most applied production method of chemical pulping
processes. The plant employs an ECF-light (Elemental chlorine-free) bleaching process and a
primary and secondary wastewater treatment involving activated sludge treatment.
225. The Court finds that, from the point of view of the technology employed, and based on the
documents submitted to it by the Parties, particularly the IPPC-BAT, there is no evidence to support
the claim of Argentina that the Orion (Botnia) mill is not BAT-compliant in terms of the discharges
of effluent for each tonne of pulp produced. This finding is supported by the fact that, as shown
below, no clear evidence has been presented by Argentina establishing that the Orion (Botnia) mill
is not in compliance with the 1975 Statute, the CARU Digest and applicable regulations of the
Parties in terms of the concentration of effluents per litre of wastewater discharged from the plant
and the absolute amount of effluents that can be discharged in a day.” (ICJ, Pulp Mills on the River
Uruguay (Argentina v. Uruguay), Judgment of 20 April 2010, ICJ Reports, p. 14)
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Week 5: Applying international law

Applying international law
The various sources of international law that were surveyed in the preceding weeks do not live in
isolation from each other, but they very often interact with each other (e.g. a State may accept by a
unilateral undertaking an obligation which is contained in a treaty to which it is not party; or
customary rules assist in the interpretation of treaties; or again customary international law may
also arise out of the practice stemming from identical treaties or from multilateral treaties).
But what the sources of international law have in common is that they are all formal processes by
which international obligations are created. In other words, the origin of any international
obligation, and of any corresponding right, is to be found in one or several of those processes.
But things are a little bit complicated because the interaction between the sources is such that the
same obligation may exist for a State or an international organization under a treaty and under a rule
of customary international law, or under a treaty and a unilateral act of that State or organization, or
a general principle and a treaty. Sources are grounds for international obligations and several
different sources can each be ground of an identical obligation, which will simply have different
origins – origins that remain legally distinct and independent of each other in terms of validity and
in terms of scope.
Conversely, and because the production of international law is decentralized, the same State or the
same international organization will sometimes not be bound by the same international obligation
through different sources, but will be facing obligations that contradict each other because it is
impossible to reconcile them and to perform each of them at the same time. And those
irreconcilable obligations can be found in sources of the same nature (e.g. in two treaties) or in
sources having different nature (e.g. a treaty and a unilateral act of an international organization).
In light of this, when it comes to the application, rather than to the making, of international
obligations, a few elementary questions arise:
- Who is bound by the obligation at stake and is it always owed by those who are bound?
- What does the obligation actually mean and what must be done in order to comply with the
obligation?
- Which obligation should be preferred in case several obligations conflict with each other?
Those are the questions that we will address this week and that we shall try to answer.
Let’s turn first to the first question, that is the personal scope of what can also be called the ratione
personae scope of the various sources of international law we have surveyed: who is bound by the
obligation at stake? That question must be answered in light of the source where the obligation is
grounded.
- Customary international law

On customary international law, we may recall two important things:
1) First, the fact that customary international law provides for rules that are binding on all
States, and also all international organizations which are by their very object concerned by
the rule at stake. In other words, customary international law is general international law.
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There are two exceptions to such generality in terms of the ratione personae scope of
customary international law:
1.1) The situation of the persistent objector;
1.2) The possibility for certain customs to be regional or local and therefore to be only
binding on a few States.
2) Secondly, you may recall also that customary international law is jus dispositivum and that
it can be displaced, derogated from, by treaty. In such a case, and as long as the treaty is
binding on the parties to it, the parties to the treaty will have to respect between them the
obligations contained in the treaty, rather than the obligations existing under the customary
rule at stake. Of course, that customary rule continues to be binding on the parties to the
treaty in their relations with States and organizations that are not party to that treaty.
We also remember that when the customary obligation is not of a jus dispositivum nature,
but of a jus cogens nature, it must be respected by all, irrespective of any contrary
obligation contained in a treaty, and such treaty is void.
- General principles of law within the meaning of Article 38 of the ICJ Statute
Let’s turn now to the same question, but in relation to general principles of law within the
specific meaning of Article 38, paragraph 1, c) of the ICJ Statute (and not general principles as
synonymous to customary rules of international law). As their name indicates, and as the
comparative law process forming them requires, general principles of law are general in personal
scope: they are binding on all States. But because general principles within the meaning of Article
38 are filling the gaps as it were in the absence of a customary rule or an applicable treaty, they are
also of a jus dispositivum nature and they can be derogated from by custom or by treaty.
- Unilateral acts (of States and IOs)

As far as unilateral acts of States are concerned, the answer to their ratione personae scope is
quite straightforward: unilateral undertakings are binding on their authors only.
The same is true as far as unilateral acts of international organizations are concerned: being part
of the rules of the organization, unilateral acts of international organizations are binding on the
organization and on its members according to the conditions set forth in the basic instrument
establishing the organization and as long as they have not been changed or repelled by a subsequent
act of the organization adopted under the same procedure. Unilateral acts of organizations may also
be binding on individuals and on corporations, again according to the conditions set forth in the
basic instrument. This can notably be the case of some EU secondary legislation or some UNSC
Resolutions, as we shall see at the end of the course.
The binding character of treaties: generalities

- Treaties
The basic rule of the law of treaties is pacta sunt servanda. As Article 26 of the Vienna
Convention on the Law of Treaties reads: “Every treaty in force is binding upon the parties to it
and must be performed by them in good faith”. Observance of the treaty is owed by its parties from
the moment it enters into force for each of them. It is not owed before that moment.
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However, it is possible that the parties to the treaty agree to apply the treaty (or some of its
provisions) provisionally, pending its entry into force. This is because the ratifications procedures
in every State may be a very lengthy process. Article 25 of the Vienna Convention provides for
such possibility, possibility which actually is quite common in practice, notably for treaties
concluded by the EU and its member States on the one hand, with other States on the other hand. Of
course, the provisional application of a treaty with respect to a party is terminated if that party
notifies the other parties that it does not intend to become a party to the treaty (Article 25, §2).
Another basic rule of international law is that a State may not invoke the provisions of its internal
law as a justification for its failure to perform the treaty. As Article 27 of the Vienna Convention
also recalls, the only exception to that basic rule is Article 46, i.e. a defect of consent consisting in
the manifest breach of a domestic law provision relating to the competence to conclude treaties.
Let’s turn now to the temporal, spatial and personal scopes of treaties:
o Temporal scope of treaties
From a temporal point of view, it is quite elementary in every legal system that, as a matter of
principle, new rules only apply for the future and not to the past. This is true also in the law of
treaties and Article 28 of the Vienna Convention provides for the principle of non-retroactivity of
their provisions: a treaty does not bind a party in relation to any act or fact which took place, or any
situation which ceased to exist, before the entry into force of the treaty for that party.
Of course, States may provide otherwise, but this will remain exceptional and it must be made clear
in the treaty.
The rule on non-retroactivity also governs the temporal application of customary rules and other
sources of international law.
o Spatial scope of treaties
From a spatial point of view, and as Article 29 of the Vienna Convention puts it: “a treaty is
binding upon each party in respect of its entire territory”. In other words, the territorial sovereignty
of States defines the scope of application of their respective treaties.
Again, this principle is not absolute and a different intention may appear from the treaty (e.g. a
treaty relating to the construction of a dam on an international watercourse may be applicable only
to the section of the river where the dam must be built).
o Personal scope of treaties
From a ratione personae point of view, the basic principle of pacta sunt servanda explains that
because any treaty must be performed in good faith by the parties to it, a contrario, a treaty does not
create any right or any obligation for States or for international organizations that are not party to it.
This is made clear by Article 34 of the Vienna Convention and this principle is called the relative
effect of treaties, which in domestic law would correspond to what is called the privity of
contracts.
But of course, it is entirely possible, if a non-party consents, that a treaty confers to it a right or
impose on it an obligation. According to Article 35, the third State must expressly accept the
obligation in writing for such obligation to arise under a treaty to which it is not party. In practice,
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this is really exceptional that States accept obligations imposed upon them by treaties to which they
are not parties.
According to Article 36, the consent of the third State is presumed if the treaty confers a right to it,
but the treaty may nevertheless require express consent. And in exercising the right conferred to it
under the treaty, the third State must comply with
the conditions for its exercise. Thus, the conditions
for the exercise of the right are somehow
obligations on the third State. Such conditions for
the exercise of the right extended to the third party
can be provided for under the treaty, or under other instruments deriving from it. This is more
frequent in practice and for instance, the right of passage through the Suez Canal has been
extended to the ships of all States under the Convention of Constantinople of 1888, which was
however only concluded between eight European powers at the time and the Ottoman empire.
Of course, when speaking about the borders of new States, State succession to border treaties is
an exception to the rule according to which treaties are not binding on third States.
Furthermore, one should not forget that some treaty provisions may have a double nature: any treaty
provision is of course binding on the parties, as a matter of treaty law; but if the treaty provision
also reflects a customary rule of international law, its normative content will be binding on the
third States as custom, and Article 38 of the Vienna Convention recalls that. And if, at some point
in time, the treaty terminates but that the customary rule reflected in one of its provision continues
to exist, then, all States – including the parties to the terminated treaty – will continue to be bound
by that customary rule. And if the customary rule is well phrased, well expressed, by the treaty
provision, there is no reason not to continue to refer to it as a matter of convenience, knowing of
course that the words and sentences are those of a customary rule of international law, not of a
treaty.
Most-favored nation (MFN)

The Most-Favoured Nation (MFN) principle is at the heart of the international trading system.
Notably, it is to be found in Article 1 of the GATT (General Agreement on Tariffs and Trade),
Article 2 of the GATS (General Agreement on Trade in Services) and Article 4 of the TRIPS
(Agreement on Trade-Related Aspects of Intellectual Property Rights), which are all parts of the
WTO (World Trade Organization) agreements.
When the MFN status is accorded to a country, that country benefits from the same trade
advantages as the “most favored” ones (in terms of tariffs, quotas, trade barriers, etc.) afforded to
any other country by the country granting such treatment.
When an MFN clause is inserted in a trade agreement and is reciprocal, it has the effect of
conferring to each of the contracting parties all the trade advantages that any of them could grant by
a separate agreement to any other country. As a result, the MFN clause has the effect of levelling
and equalizing trade advantages because any favor (e.g. a lower duty rate for the import of a certain
type of product) granted to one country automatically benefits all the others. The MFN is an
instrument of non-discrimination between trading partners.
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There are of course exceptions to the MFN obligation under the WTO agreements, such as the
establishment of free trade agreements between certain countries, or market access discrimination in
favor of developing countries, or trade defense measures.
For the purpose of an introductory course on international law, the point is to see that the MFN is
not an exception to the relative effect of treaties. If an MFN clause is inserted in a treaty between
States A, B and C, any trading advantage granted by State A to State E will automatically benefit
States B and C, not because the agreement between A and E would confer them certain rights, but
because of the effect of the MFN clause inserted in the treaty between A, B and C. The benefits
derived by B and C from the treaty concluded between A and E is not a legal effect of the latter
treaty, but of the treaty between A, B and C and its MFN clause.
Termination, withdrawal and suspension of treaties

The grounds for invalidating a treaty are listed in the Vienna Convention and are limited in
numbers: only the grounds listed in the Convention may be invoked in order to impeach the
validity of a treaty.
Under Article 42, paragraph 2, of the Vienna Convention, the same principle applies to the
grounds that may serve to terminate, to withdraw from or to suspend treaties. Termination,
withdrawal and suspension create situations where the treaty obligations are not owed anymore.
Of course, when a treaty is lawfully terminated, the parties to the treaty are definitively relieved
from the duty to perform it in its entirety. The same is true for the party that has lawfully withdrawn
from a treaty, even if what is called a “sunset clause” will often differ the effect of the withdrawal
notification for a certain period of time.
Suspending the operation of a treaty is an interesting issue: in such a situation, the treaty is still in
force and binding for the party invoking the suspension, but that party will be entitled not to
perform the treaty temporarily. So, compared with termination and withdrawal which result in
parties not being bound anymore by a treaty, the consequence of the suspension of the operation of
a treaty is, as Article 72 of the Vienna Convention puts it, to “release […] the parties between
which the operation of the treaty is suspended from the obligation to perform the treaty in their
mutual relations during the period of the suspension”. But the suspension has no effect for the
parties which are not affected by the suspension. During the time of suspension, the parties must
“refrain from acts tending to obstruct the resumption of the operation of the treaty”, and this is
indeed because suspension is only a temporary measure.
Let’s turn to two grounds that may serve either to terminate a treaty or to suspend its operation, and
look at them from the perspective of suspending the operation of a treaty.
1) The first ground is provided for under Article 60 of the Vienna Convention, which is
entitled “Termination or suspension of the operation of a treaty as a consequence of its
breach”. It reflects a legal mechanism which is common to contract law in many national
legal orders and which is expressed by the Latin maxim inadimplenti non est adimplendum
(or also exceptio non adimpleti contractus).
This ground is probably the most commonly used when States want to justify the fact that
they have not complied with their treaty obligations or intend not to comply anymore. The
idea is very simple and based on reciprocity or quid pro quo, which is at the heart of any
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legal instrument based on the exchange of consent. A contracting party would say simply:
“I’m not performing this treaty because you have seriously breached it in the first place”.
Furthermore, the mechanism of inadimplenti non est adimplendum is also used to justify
human rights policies pursued through trade incentives. This is called the policy of
“conditionality” because trade benefits and access to market are conditioned upon the
respect for fundamental human rights by the governments of the countries benefiting from
such favorable trade access or other instruments of cooperation. The EU has notably
inserted such conditionality in treaties concluded with developing countries and we’ll see
one prime example of such clauses.
2) The second ground is less used in practice, but it is nevertheless important from a
conceptual point of view. It relates to the impact of a fundamental change of circumstances
on the duty to perform the treaty. Are the treaty obligations still owed when the
circumstances for their performance have radically changed from what was envisaged by the
contracting parties? If performing the treaty becomes not impossible but much more
onerous, or that performing the treaty does not make the same sense because of the changed
circumstances, must it still be performed?
The issue is addressed by Article 62 of the Vienna Convention. And, of course, there is a
Latin maxim to express the principle: rebus sic stantibus.
Inadimplenti non est adimplendum

Please read carefully Article 60 of the Vienna Convention on the Law of Treaties.
In its advisory opinion on the continued presence of South Africa in Namibia (see Week 2), the ICJ
held that Article 60 “may in many respects be considered as a codification of existing customary
law of the subject”. The Court insisted on the need for a “material breach” (instead of any breach),
within the meaning of Article 60, paragraph 3, to exist, but it did not elaborate further on the aspects
of the provision which would eventually not reflect customary international law. Stating that Article
60 codifies existing customary law “in many respects” seems indeed to imply that in some respects,
it does not. The words carefully chosen by the Court can be explained by the fact that it did not
really need to decide on the customary nature of the provision as a whole. Be that as it may, the
important point is that the principle inadimplenti non est adimplendum may not be triggered by a
breach which cannot be qualified as “material” within the meaning of Article 60, paragraph 3.
The reference to the “object or purpose of the treaty” is reminiscent of other provisions of the
Vienna Convention which refer to those concepts (Article 18, Article 19 c), Article 20, paragraph 2,
Article 31, etc.). However, under Article 60, paragraph 3, b), the two concepts are used alternatively
(“or”) and there is no need that the breach hurts both the object “and” the purpose of the treaty in
order to be considered as a material breach.
Most often, States will rely on Article 60, paragraph 1, in case of a bilateral treaty, or, in case of a
multilateral treaty, on Article 60, paragraph 2, b). In the latter provision, the requirement of being
“specially affected” institutes an element of bilateralism within the multilateral treaty, allowing to
identify one or several States as (injured) victims of the material breach. Terminating or suspending
a multilateral treaty by unanimous agreement of the other parties, as envisaged under Article 60,
paragraph 2, a), will not often occur.
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Under Article 60, paragraph 2, c), the drafters of the Vienna Convention envisaged the situation
resulting from the material breach of an “interdependent” obligation. This type of obligation will
usually arise under treaties establishing particular regimes, i.e. a treaty where the performance of
each party is effectively conditioned upon the performance of each of the other parties and actually
requires such performance by others. Examples of such treaties are disarmament treaties, nuclear-
free zone treaties, etc. In all those type of treaties, the material breach by one party does not really
specially affect any other party, but it simply does not make sense anymore for those other parties
to continue to perform the treaty. For instance, if one party to a disarmament treaty fails to
dismantle the amount and type of weaponry required under the treaty, the other parties would be
fully entitled not to disarm unilaterally and are therefore entitled to suspend the performance of
their own disarmament obligations.
By codifying the principle inadimplenti non est adimplendum, it is important to realize that Article
60 provides for a right to terminate a treaty or to suspend its operation. Doing so if the conditions
stated under Article 60 are met does not result in any treaty breach. However, as stated under
Article 60, paragraph 4, such right is “without prejudice to any provision in the treaty applicable in
the event of a breach”: if the final provisions of the treaty provide for a procedure relating to the
settlement of disputes about the application or interpretation of the treaty, those provisions continue
to be binding and could very well be resorted to by the party which contests to be the author of a
material breach that led one or several of the other parties to suspend or terminate the treaty.
Finally, paragraph 5 of Article 60 puts a material limit to the application of the principle
inadimplenti non est adimplendum as it may not be used in order to suspend or terminate
“provisions relating to the protection of the human person contained in treaties of a humanitarian
character, in particular to provisions prohibiting any form of reprisals against persons protected by
such treaties”. Human beings are protected from interstate reciprocity and, for instance, a State may
not decide not to abide anymore to the prohibition of the killing of prisoners of war because its own
prisoners of war were summarily executed. Those type of obligations are sometimes referred to as
“integral” obligations.
EU conditionality
One very remarkable example of conditioning market access and other trade benefits to the respect
for basic human rights is to be found in the Partnership Agreement between the members of the
African, Caribbean and Pacific Group of States of the one part, and the European
Community and its Member States, of the other part, signed in Cotonou on 23 June 2000. The
Agreement has been amended since (see the consolidated version).
In its original form, the Cotonou Agreement is a voluminous treaty of 284 pages establishing a
framework for the economic, social and cultural cooperation between the European Community
(now the EU) and its member States, and the African, Caribbean and Pacific States (ACP – former
colonies of EU member States for most of them). The main objectives of the Partnership are the
reduction and eventual eradication of poverty and the gradual integration of African, Caribbean and
Pacific States into the global economy, whilst adhering to the aims of sustainable development.
The Partnership was concluded for a period of 20 years and may be revised every five years.
Following the two Yaoundé conventions and the four Lomé conventions, it represented in 2000 a
new phase in the cooperation between the ACP states and the European Community.
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The Partnership has a strong political dimension, which includes the promotion of human rights,
democratic principles based on the rule of law and transparent and accountable governance. Those
elements are qualified as “essential elements” of the Agreement and it lays down measures in cases
of non-compliance with those essential elements. Preliminary consultation must take place in such
cases, but, in the absence of an acceptable solution, supplementary measures may be taken
unilaterally, including suspending the Agreement, although suspension is envisaged as a measure of
last resort.
When the Agreement was concluded in 2000, Articles 9 and 96 of the Agreement read as follows:
Article 9 – Essential Elements and Fundamental Element
1. Cooperation shall be directed towards sustainable development centered on the human person,
who is the main protagonist and beneficiary of development; this entails respect for and promotion
of all human rights.
Respect for all human rights and fundamental freedoms, including respect for fundamental social
rights, democracy based on the rule of law and transparent and accountable governance are an
integral part of sustainable development.
2. The Parties refer to their international obligations and commitments concerning respect for human
rights. They reiterate their deep attachment to human dignity and human rights, which are legitimate
aspirations of individuals and peoples. Human rights are universal, indivisible and interrelated. The
Parties undertake to promote and protect all fundamental freedoms and human rights, be they civil
and political, or economic, social and cultural. In this context, the Parties reaffirm the equality of
men and women.
The Parties reaffirm that democratization, development and the protection of fundamental freedoms
and human rights are interrelated and mutually reinforcing. Democratic principles are universally
recognized principles underpinning the organization of the State to ensure the legitimacy of its
authority, the legality of its actions reflected in its constitutional, legislative and regulatory system,
and the existence of participatory mechanisms. On the basis of universally recognized principles,
each country develops its democratic culture.
The structure of government and the prerogatives of the different powers shall be founded on rule of
law, which shall entail in particular effective and accessible means of legal redress, an independent
legal system guaranteeing equality before the law and an executive that is fully subject to the law.
Respect for human rights, democratic principles and the rule of law, which underpin the ACP-EU
Partnership, shall underpin the domestic and international policies of the Parties and constitute the
essential elements of this Agreement.
3. In the context of a political and institutional environment that upholds human rights, democratic
principles and the rule of law, good governance is the transparent and accountable management of
human, natural, economic and financial resources for the purposes of equitable and sustainable
development. It entails clear decision-making procedures at the level of public authorities,
transparent and accountable institutions, the primacy of law in the management and distribution of
resources and capacity building for elaborating and implementing measures aiming in particular at
preventing and combating corruption.
Good governance, which underpins the ACP-EU Partnership, shall underpin the domestic and
international policies of the Parties and constitute a fundamental element of this Agreement. The
Parties agree that only serious cases of corruption, including acts of bribery leading to such
corruption, as defined in Article 97 constitute a violation of that element.
4. The Partnership shall actively support the promotion of human rights, processes of
democratization, consolidation of the rule of law, and good governance.
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These areas will be an important subject for the political dialogue. In the context of this dialogue,
the Parties shall attach particular importance to the changes underway and to the continuity of the
progress achieved. This regular assessment shall take into account each country’s economic, social,
cultural and historical context.
These areas will also be a focus of support for development strategies. The Community shall provide
support for political, institutional and legal reforms and for building the capacity of public and
private actors and civil society in the framework of strategies agreed jointly between the State
concerned and the Community.
Article 96 – Essential elements: consultation procedure and appropriate measures as regards
human rights, democratic principles and the rule of law
1. Within the meaning of this Article, the term ‘Party’ refers to the Community and the Member
States of the European Union, of the one part, and each ACP State, of the other part.
2. (a) If, despite the political dialogue conducted regularly between the Parties, a Party considers that
the other Party has failed to fulfill an obligation stemming from respect for human rights, democratic
principles and the rule of law referred to in paragraph 2 of Article 9, it shall, except in cases of
special urgency, supply the other Party and the Council of Ministers with the relevant information
required for a thorough examination of the situation with a view to seeking a solution acceptable to
the Parties. To this end, it shall invite the other Party to hold consultations that focus on the
measures taken or to be taken by the party concerned to remedy the situation.
The consultations shall be conducted at the level and in the form considered most appropriate for
finding a solution.
The consultations shall begin no later than 15 days after the invitation and shall continue for a period
established by mutual agreement, depending on the nature and gravity of the violation. In any case,
the consultations shall last no longer than 60 days.
If the consultations do not lead to a solution acceptable to both Parties, if consultation is refused, or
in cases of special urgency, appropriate measures may be taken. These measures shall be revoked as
soon as the reasons for taking them have disappeared.
(b) The term ‘cases of special urgency’ shall refer to exceptional cases of particularly serious and
flagrant violation of one of the essential elements referred to in paragraph 2 of Article 9, that require
an immediate reaction.
The Party resorting to the special urgency procedure shall inform the other Party and the Council of
Ministers separately of the fact unless it does not have time to do so.
The ‘appropriate measures’ referred to in this Article are measures taken in accordance with
international law, and proportional to the violation. In the selection of these measures, priority must
be given to those which least disrupt the application of this agreement. It is understood that
suspension would be a measure of last resort.
If measures are taken in cases of special urgency, they shall be immediately notified to the other
Party and the Council of Ministers. At the request of the Party concerned, consultations may then be
called in order to examine the situation thoroughly and, if possible, find solutions. These
consultations shall be conducted according to the arrangements set out in the second and third
subparagraphs of paragraph (a).
Those provisions have been amended since, but the fundamental idea has remained (see the
consolidated version).
The EU has always presented the sanction mechanism in the Cotonou Agreement as being based on
the principle inadimplenti non est adimplendum. However, there is no need to refer to the
customary principle reflected in Article 60 of the Vienna Convention once a treaty establishes a
specific mechanism for the purpose of sanctioning certain of its violations.
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The fact of the matter is that in the absence of a clause similar to Article 9, paragraph 2, it would be
very difficult to consider the elements it refers to as treaty obligations that are “essential to the
accomplishment of the object or purpose of the treaty”. Indeed, while the Partnership often refers to
human rights, democratic principles and the rule of law, it does not contain any specific substantial
obligations in that regard – the Agreement is not a human rights treaty. Furthermore, it is not certain
that human rights and democracy are “essential for the accomplishment” of the overall objectives of
reduction of poverty and sustainable development, even if a desirable link can be made between the
two. But this link is internal to each developing State and is not essential for the actual performance
by the EU of its trade obligations.
However, this does not mean that the mechanism instituted by the Cotonou Agreement is illegal: on
the contrary, it is perfectly legal and valid, and binding on the parties by virtue of pacta sunt
servanda.
Rebus sic stantibus

Please read carefully Article 62 of the Vienna Convention on the Law of Treaties.
Look at the structure of the provision:
- It starts by affirming negatively that, as a matter of principle, an unforeseen fundamental
change of circumstances compared to those existing at the time of the conclusion of the
treaty may not be invoked as a ground for terminating or withdrawing from the treaty, i.e.
for not performing it.
- Then, the provision introduces an exception to that principle (“unless”), if two cumulative
conditions are met (paragraph 1, a) and b)). Then, even if those cumulative conditions are
met, the fundamental change of circumstances cannot operate in any of the two cases listed
under paragraph 2.
- Finally, paragraph 3 indicates (along the lines that “who can do more can do less”) that if
termination is possibility, then suspension must be also.
In 1977, Hungary and Czechoslovakia concluded a treaty providing for the construction and
operation of a system of locks on a section of the Danube river between the localities of Gabčíkovo
(in Czechoslovak territory at that time) and Nagymaros (in Hungarian territory). At the time of the
conclusion of the treaty, the two countries were part of the Warsaw Pact and had communist
governments. Moreover, environmental protection was not much a concern of the day.
Two decades later, and after the break-up of Czechoslovakia, a dispute arose between Hungary and
Slovakia (Gabčíkovo being then in Slovak territory) about the implementation of the treaty.
The ICJ was called to settle the dispute and considered that it did not need to decide on the
applicability in the case of the Vienna Convention as such because “some of the rules laid down in
that Convention might be considered as a codification of existing customary law”. Using the same
formula as the one present in the Namibia advisory opinion about Article 60, the Court took “the
view that in many respects this applies to the provisions of the Vienna Convention concerning the
termination and the suspension of the operation of treaties, set forth in Articles 60 to 62”31. The
Court had already opined in the same way in the Fisheries Jurisdiction case, decided in 1973, and it
referred to that case also.
31
ICJ, Gabčíkovo-Nagymaros Project (Hungary/Slovakia), 25 Sept. 1997, ICJ Reports, p. 38, para. 46.
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“104. Hungary further argued that it was entitled to invoke a number of events which, cumulatively,
would have constituted a fundamental change of circumstances. In this respect it specified profound
changes of a political nature, the Project’s diminishing economic viability, the progress of
environmental knowledge and the development of new norms and prescriptions of international
environmental law (see §95 above).
The Court recalls that, in the Fisheries Jurisdiction case, it stated that:
“Article 62 of the Vienna Convention on the Law of Treaties may in many respects be considered as
a codification of existing customary law on the subject of the termination of a treaty relationship on
account of change of circumstances” (I.C.J. Reports 1973, p. 63, para. 36).
The prevailing political situation was certainly relevant for the conclusion of the 1977 Treaty. But
the Court will recall that the Treaty provided for a joint investment programme for the production of
energy, the control of floods and the improvement of navigation on the Danube. In the Court's view,
the prevalent political conditions were thus not so closely linked to the object and purpose of the
Treaty that they constituted an essential basis of the consent of the parties and, in changing,
radically altered the extent of the obligations still to be performed. The same holds good for the
economic system in force at the time of the conclusion of the 1977 Treaty. Besides, even though the
estimated profitability of the Project might have appeared less in 1992 than in 1977, it does not
appear from the record before the Court that it was bound to diminish to such an extent that the
treaty obligations of the parties would have been radically transformed as a result.
The Court does not consider that new developments in the state of environmental knowledge and of
environmental law can be said to have been completely unforeseen. What is more, the formulation of
Articles 15, 19 and 20, designed to accommodate change, made it possible for the parties to take
account of such developments and to apply them when implementing those treaty provisions.
The changed circumstances advanced by Hungary are, in the Court's view, not of such a nature,
either individually or collectively, that their effect would radically transform the extent of the
obligations still to be performed in order to accomplish the Project. A fundamental change of
circumstances must have been unforeseen; the existence of the circumstances at the time of the
Treaty's conclusion must have constituted an essential basis of the consent of the parties to be bound
by the Treaty. The negative and conditional wording of Article 62 of the Vienna Convention on the
Law of Treaties is a clear indication moreover that the stability of treaty relations requires that the
plea of fundamental change of circumstances be applied only in exceptional cases.”
Interpreting international law

In order to correctly perform an international obligation, one must understand what it means and
what it requires.
The issue of interpretation is co-substantial with law, and, as a professional practice, being a lawyer
very often boils down to giving meaning to words and to sentences because law is only made of
words. Much of what civil servants, attorneys and judges do in their daily life is ultimately about
arguing and deciding on interpretations. There is no application of legal rules without interpretation.
This is because very often interpretation precedes application or, more fundamentally and even in
the absence of any interpretative moment and endeavor identified as such, it is because applying a
rule of law always conveys, or if you prefer betrays, an understanding of that rule.
Furthermore, interpreting law is never an abstract exercise, even when it is done for the sake of the
exercise. Interpretation is always about giving meaning to a rule, to an obligation or to a right, in
light of particular set of existing, or potential, facts. Interpretation is about giving flesh to a
particular set of normative words in order to make them apply, or not, to certain facts. For the
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interpreter, the question is whether the facts at hand come within the purview of the rule, such
question leading to the need to read within the words used to phrase the rule, and somehow see
whether the facts are in it, the facts are covered by those words.
Interpretation, like law, is not a natural science. Very often, various credible interpretations are
possible and a choice between them will have to be made. Or rather, a choice which reflects
preferences often lying outside the law will be reasoned and justified according to legal
parameters, notably on the basis of the rules on interpretation.
Moreover, interpretation does not take place in a vacuum, but interpretation is a social practice
taking place between a certain breed of professionals which have been trained through law schools
and practice to argue about the meaning of rules. What will be considered as a convincing
interpretation will not be a matter of objective assessment, but of collective judgment at a certain
moment in time, in a specific context. Interpretation will be admitted – a specific interpretation will
be admitted – as a good interpretation because it is shared and considered as making sense. The
choice of a certain interpretation will be explained, notably by courts and tribunals, through a
specific argumentation bridging the interpreted legal norm and the relevant rules on interpretation.
In international law, the issue of interpretation is no less present than in domestic law. In a way, it is
even more present, because treaties are always the result of compromises – treaties are, to use a
famous sentence by Philip Allott, “disagreement reduced to writing”. And that writing is sometimes
obscure or capable of various understandings because the drafters have resorted to so-called
“constructive ambiguities” in order to reach an agreement.
And the same questions about the purpose of what has to be achieved through interpretation will
arise: what is interpretation about? Is it about faithfully finding the original intent of the author of
the rule at the time the rule was designed? Or is it about discovering what should be achieved
through the rule, about what its purpose and raison d’être are? In other words, is interpretation
backward-looking or forward-looking? Must it be historical or teleological?
That tension is always present in the art of interpreting legal texts. It is easy to explain that tension.
- On the one hand, interpreting a legal rule is nothing more than saying what that rule is
presumed to require from the very moment it came to exist. As a matter of principle,
interpretation is said to be retroactive, and this conception is perfectly in line with the idea
that judges do not make new laws but only apply existing ones.
- But on the other hand, interpreting a legal rule is making sense of that rule today, in light of
a particular set of facts and circumstances that could most probably not have been envisaged
by the authors of the rule at stake.
The only rules on interpretation that exist in international law relate to treaty interpretation and they
are essentially provided for under Articles 31 and 32 of the Vienna Convention. A few remarks
about those provisions:
1) First, and as you will realize after having read those provisions, Articles 31 and 32 strike a
balance between the historical approach to interpretation and the teleological approach.
2) Second, Articles 31 and 32 of the Vienna Convention are rules for interpreting treaties, and
treaties only, but because they are the only rules around on the interpretation of international
law, those articles will also have some influence, sometimes even only as a matter of
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contrast, when it comes to the interpretation of other sources and instruments of

international law.
We shall notably see that when discussing the interpretation of Security Council resolutions
during the last week of the course.
3) Third, it is now undisputed that Article 31 and also 32 of the Vienna Convention reflect
customary international law and can therefore be used to interpret any treaty.
There are many cases in which courts and tribunals have affirmed that those provisions are
declaratory of customary international law. To take just one example, let’s refer to the
judgment of the ICJ in a case between Botswana and Namibia about the boundary around an
Island on the Chobe River which runs between the two African countries.
The island is know as Kasikili in Namibia and as Sedutu in Botswana, and the Court in the
judgment of 1999 finally ruled that the island is part of the territory of Botswana.
The dispute between the two States was essentially about the meaning of a treaty concluded
on first of July 1890 between the United Kingdom and Germany, who were the colonial
powers ruling over, respectively Botswana and Namibia. Of course, when the treaty was
concluded in 1890, the Vienna Convention of 1969 did not exist. Furthermore, neither
Botswana, nor Namibia, are parties to the Vienna Convention when the dispute was decided
by the Court.
But both disputing States referred to its provisions on treaty interpretation and the Court
ruled, as it did on many prior occasions, that “customary international law found expression
in Article 31 of the Vienna Convention”. Therefore, the Court considered that Article 4 of
the Vienna Convention, which says that the Convention applies only to treaties concluded
after its entry into force, “did not prevent the Court from interpreting the 1890 treaty in
accordance with the rules reflected in Article 31 of the Convention”32.
Articles 31-33 of the Vienna Convention

Section 3 of Part III of the 1969 Vienna Convention on the Law of Treaties is entitled
“Interpretation of Treaties”. It comprises three articles. Please, read them carefully.
- Interpretation of treaties authenticated in two or more languages (Article 33)
Of those three provisions, Article 33 is the most easy to understand and does not require lengthy
explanations.
- General rule of interpretation: good faith (Article 31)

On the face of it, Article 31, paragraph 1, is also easy to understand and the primary rule of treaty
interpretation it contains is fairly undisputable. After all, it would make absolutely no sense to
interpret a treaty in bad faith, irrespective of the ordinary meaning of its terms, outside their context
and without considering the object and purpose of the treaty.
32
ICJ, Kasikili/Sedudu Island (Botswana/Namibia), 13 December 1999.
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If Article 31, paragraph 1, seems therefore to state the obvious to the point of looking trivial, it is
however important to stress that, as the paramount rule of treaty interpretation, it does not require
from the interpreter to embark on a soul-searching exercise about the possible hidden intent of the
drafters of the treaty. In that sense, Article 31, paragraph 1, indicates that interpretation is not
primarily backward-looking and historical – or rather, it presumes that the intention of the drafters
of the treaty is duly and correctly reflected by the text of the treaty, i.e. by the terms they used, put
in their context and in light of the object and purpose of the treaty. The interpreter is called to read
the treaty “objectively”, on the face of it.
This is important because, very often, States accede to multilateral treaties they have not negotiated:
States do so on the basis of what they understand from the very text treaty, looking at the terms it
uses, its object and purpose. It would not only be unfair, but also politically unsound, to later tell the
acceding State that what it thought to be its obligations or rights under the treaty are not what they
seemed to be, because of a presumed intention of the drafters, hidden behind the words and
uncovered years later. The acceding State was, by definition, not present when the treaty was
drafted and there is no way it could have imagined the intent of the drafters except by reading the
words they used in the treaty.
The notion of “ordinary meaning” of the terms of the treaty must be understood in contrast to any
“special meaning” as envisaged under paragraph 4 of Article 31. The ordinary meaning of a term is
to be displaced only if it is established, i.e. proven, that the common intention of the parties was to
retain a specific, non-ordinary, meaning. Readings below will illustrate how to interpret generic
terms.
The terms of the treaty must be interpreted “in their context and in light of [the treaty’s] object and
purpose”. In other words, the terms of the treaty must be given their proper effect, taking into
account the reason of their presence and place in the treaty, in light of its object and purpose. This
idea that the terms of the treaty are presumed to be useful, that they have been included in the treaty
in order to fulfill a certain purpose and that, therefore, the interpreter must give effect to those
terms, is often referred to as the principle of “effectiveness” in treaty interpretation. Even in
English, the French expression “effet utile” is also used. According to the ICJ, the principle of
effectiveness (or “effet utile”) is “one of the fundamental principles of interpretation of treaties”
(ICJ, Territorial dispute (Libya/Tchad), 3 February 1994, ICJ Reports, p. 25, para. 51). It has
been applied and referred to in many cases by international courts and tribunals.
Paragraph 2 of Article 31 indicates that “for the purpose of interpretation”, the context of the treaty
“shall comprise” not only its “text, including its preamble and annexes”, but also any of the
agreement or instrument respectively referred to under (a) and (b). Very often, aside from the treaty,
other agreements or instruments are established in connection with its conclusion. Those
agreements and instruments that are connected to the process of making the treaty must of course be
duly taken into account because they form part of the context of the treaty33.
According to paragraph 3 of Article 31, subsequent agreement (a) and practice (b) conveying a
common interpretation by the parties must also be “taken into account, together with the context”.
While paragraph 2 refers to elements existing at the time of the conclusion of the treaty, paragraph
33
Example of this can be found in the Declaration inserted in the Final Act of the Vienna conference on the Law of
Treaties and which condemns economic and political coercion: as we have seen when addressing Article 52 of the
Vienna Convention (see Week 4), that Declaration is important to interpret the notion of “force” under Article 52.
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3 (a) and (b) deal with subsequent elements. Parties are of course free to agree on an interpretation
of the treaty, or to agree on a way to apply it, which is indicative of their joint interpretation.
Interpretation of the treaty by the parties themselves, in the form of an agreement or subsequent
practice, is of course especially relevant and the Vienna Convention requires that it be ‘taken into
account”. It is important to note that, in some instances, subsequent practice can be, on the face of
it, contrary to the black-letter law of the treaty, but that it will nevertheless constitute the correct
interpretation of the treaty. As we shall see when discussing the adoption of Resolutions by the UN
Security Council (see Week 8), Article 27, paragraph 3, of the UN Charter requires that the
resolutions be adopted by an “affirmative vote of nine members [out of 15] including the concurring
votes of the permanent members”. From that text, not only the negative vote of any of the five
permanent member (veto), but also the abstention of any of them, should prevent the adoption of a
resolution. However, since 1946, subsequent practice has made a distinction between an abstention
by a permanent member and veto. And this interpretation of the Charter has been accepted by the
ICJ:
“the proceedings of the Security Council extending over a long period supply abundant evidence
that presidential rulings and the positions taken by members of the Council, in particular its
permanent members, have consistently and uniformly interpreted the practice of voluntary
abstention by a permanent member as not constituting a bar to the adoption of resolutions. By
abstaining, a member does not signify its objection to the approval of what is being proposed; in
order to prevent the adoption of a resolution requiring unanimity of the permanent members, a
permanent member has only to cast a negative vote. This procedure followed by the Security
Council, which has continued unchanged after the amendment in 1965 of Article 27 of the Charter,
has been generally accepted by Members of the United Nations and evidences a general practice of
that Organization” (ICJ, Legal Consequences for States of the Continued Presence of South Africa
in Namibia (South West Africa) notwithstanding Security Council Resolution 276 (1970), advisory
opinion, 21 June 1971, ICJ Reports, para. 22, p. 22).
Furthermore, Article 31, paragraph 3, (c), compels that interpretation takes into account “any
relevant rules of international law applicable in the relations between the parties”. Those rules must
not be subsequent to the conclusion of the treaty, they can be prior to it. Moreover, the rules of
international law at stake are not limited to treaty rules, but they can be customary rules or general
principles. However, they must be “relevant” and “applicable in the relations between the parties”.
Article 31, paragraph 3, (c), is an important provision and it has proved very useful in recent years
to put order and coherence within international law. By Article 31 (3), (c), the interpreter is called
to avoid conflict between international obligations and, as much as possible, to retain interpretations
that reconcile them. Even if the production of international law is decentralized, Article 31 (3) (c),
presumes that States and other parties to treaties act rationally and coherently.
Doctrine has called Article 31 (3) (c), the principle of “systemic integration” because through its
interpretation in light of the other relevant rules of international law, the treaty is integrated in the
system of international law. This interpretative principle brings cohesion and coherence within
international law, and also allows to update treaty commitments. Readings below will illustrate how
the principle of systemic integration has been applied and how it helps to move beyond the tension
between the historical or teleological approach to treaty interpretation.
- Supplementary means of interpretation (Article 32)

Under Article 32, preparatory work (often referred to, even in English, as the “travaux
préparatoires”) of the treaty is considered as “supplementary means of interpretation”.
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Travaux are not always available: many treaty negotiations take place without any archives being
put on the record. When they exist, travaux are supposed to be used either to confirm the
interpretation reached by application of Article 31, or to determine the meaning when the
application of Article 31 has left the meaning “ambiguous or obscure”, or if it results in a
construction of the treaty provision which is “manifestly absurd or unreasonable”.
From those rules of interpretation, it is clear that treaties must be given their full meaning and that
nothing requires to interpret treaties restrictively because they are, as recalled in the Wimbledon
case (see Week 3), “restriction upon the exercise of the sovereign rights of the State” (PCIJ,
Wimbledon, 17 August 1923, Series A, n°1, p. 25). True, such restrictive approach has been
favored by the PCIJ from the Wimbledon case onwards in case of doubt. However, the Vienna
Convention does not mention any principle of restrictive interpretation and it does not require
that treaties be interpreted narrowly.
In a case between Costa Rica and Nicaragua about navigational and related rights of Costa Rica on
the San Juan River which is under Nicaraguan sovereignty (the border between the two countries
being the right bank of the river), the International Court of Justice did not uphold a principle of
restrictive interpretation.
Treaty interpretation, including of generic terms

As the ICJ recalled, Article VI of the Treaty of Limits concluded in 1858 between Costa Rica and
Nicaragua “established Nicaragua’s dominion and sovereign jurisdiction over the waters of the San
Juan River, but at the same time affirmed Costa Rica’s navigational rights “con objectos de
comercio” on the lower course of the river” (ICJ, Dispute regarding Navigational and Related
Rights (Costa Rica v. Nicaragua), 13 July 2009, ICJ Reports, para. 19, p. 229). The dispute between
the two countries was essentially about the meaning of the Spanish terms “con objetos de comercio”.
Please read the following excerpts of the judgment delivered by the ICJ on 13 July 2009. It is worth
reading to see how the construction of just a few words is carefully reasoned. While reading, please
pay attention to the way the Court justifies the interpretation finally upheld. Of course, this is just
one example of treaty interpretation in a very specific context, and many other cases could be
reported, knowing that human rights bodies and courts, and also regional courts like the European
Court of Justice (ECJ), rely much more on teleological interpretations. However, this judgment by
the ICJ offers an interesting example of a classical approach to treaty interpretation:
“45. The Parties’ disagreement is greatest on the meaning of the words “con objetos de comercio”.
For Nicaragua, this expression must be translated into French as “avec des marchandises de
commerce” and into English as “with articles of trade”; in other words, the “objetos” in question
here are objects in the concrete and material sense of the term. Consequently, the freedom of
navigation guaranteed to Costa Rica by Article VI relates only to the transport of goods intended to
be sold in a commercial exchange. For Costa Rica, on the contrary, the expression means in French
“à des fins de commerce” and in English “for the purposes of commerce”; the “objetos” in the
original text are therefore said to be objects in the abstract sense of ends and purposes.
Consequently, according to Costa Rica, the freedom of navigation given to it by the Treaty must be
attributed the broadest possible scope, and in any event encompasses not only the transport of goods
but also the transport of passengers, including tourists.
46. Before directly addressing the question which has been submitted to it, the Court will make three
preliminary observations of a more general nature. It will then consider what is to be understood by
“con objetos” and then by “comercio” within the meaning of Article VI, since there is in fact a
twofold disagreement between the Parties.
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(i) Preliminary observations

47. In the first place, it is for the Court to interpret the provisions of a treaty in the present case. It
will do so in terms of customary international law on the subject, as reflected in Articles 31 and 32
of the 1969 Vienna Convention on the Law of Treaties, as the Court has stated on several occasions
(see Application of the Convention on the Prevention and Punishment of the Crime of Genocide
(Bosnia and Herzegovina v. Serbia and Montenegro), Judgment, I.C.J. Reports 2007 (I), pp. 109-
110, para. 160; see also Territorial Dispute (Libyan Arab Jamahiriya/ Chad), Judgment, I.C.J.
Reports 1994, pp. 21-22, para. 41).
Consequently, neither the circumstance that Nicaragua is not a party to the Vienna Convention on
the Law of Treaties nor the fact that the treaty which is to be interpreted here considerably pre-
dates the drafting of the said Convention has the effect of preventing the Court from referring to the
principles of interpretation set forth in Articles 31 and 32 of the Vienna Convention.
48. In the second place, the Court is not convinced by Nicaragua’s argument that Costa Rica’s right
of free navigation should be interpreted narrowly because it represents a limitation of the
sovereignty over the river conferred by the Treaty on Nicaragua, that being the most important
principle set forth by Article VI.
While it is certainly true that limitations of the sovereignty of a State over its territory are not to be
presumed, this does not mean that treaty provisions establishing such limitations, such as those that
are in issue in the present case, should for this reason be interpreted a priori in a restrictive way. A
treaty provision which has the purpose of limiting the sovereign powers of a State must be
interpreted like any other provision of a treaty, i.e. in accordance with the intentions of its authors
as reflected by the text of the treaty and the other relevant factors in terms of interpretation.
A simple reading of Article VI shows that the Parties did not intend to establish any hierarchy as
between Nicaragua’s sovereignty over the river and Costa Rica’s right of free navigation,
characterized as “perpetual”, with each of these affirmations counter-balancing the other.
Nicaragua’s sovereignty is affirmed only to the extent that it does not prejudice the substance of
Costa Rica’s right of free navigation in its domain, the establishment of which is precisely the point
at issue; the right of free navigation, albeit “perpetual”, is granted only on condition that it does not
prejudice the key prerogatives of territorial sovereignty.
There are thus no grounds for supposing, a priori, that the words “libre navegación . . . con objetos
de comercio” should be given a specially restrictive interpretation, any more than an extensive one.
49. Lastly, the Court observes that none of the points under examination in this case was settled by
the Cleveland Award of 1888 or by the decision of the Central American Court of Justice of 1916.
Each of the Parties has sought to use these previous decisions as an argument to support its own
case. However, these attempts do not convince the Court one way or the other.
The Cleveland Award confined itself to settling the questions of interpretation which the Parties had
expressly submitted to the arbitrator. Those questions did not concern the meaning of the words
“con objetos de comercio”; it is therefore futile to seek in the Award the answer to a question that
was not put before the arbitrator. Consequently, while the Award declares that Costa Rica does not
have the right, under the Treaty, to navigate on the San Juan with vessels of war, whereas it does
have the right to do so with vessels of its revenue service, there is nothing to be inferred from this
with regard to vessels belonging to the State and not falling into either of those two categories.
Likewise, while the arbitrator used the words “for the purposes of commerce” and placed them in
quotation marks, it may be supposed that this was simply because that was the English translation of
the words “con objetos de comercio” which both Parties had supplied to the arbitrator, who did not
wish, in his interpretation of the Treaty, to go beyond the questions which had been put before him.
As for the decision of the Central American Court of Justice of 1916, however important this might
be, its operative part was based only on the application of the express provisions of Article VIII of
the Treaty, which are not at issue in the present case.
(ii) The meaning of the phrase “con objetos”
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50. It is now appropriate to consider the issue of the meaning of the phrase “con objetos de” as
used in Article VI of the 1858 Treaty, specifically whether it means “for the purposes of” — as
Costa Rica contends — or “with articles of” — as Nicaragua contends.
51. It should first be observed that the Spanish word “objetos” can, depending on its context, have
either of the two meanings put forward. Thus, the context must be examined to ascertain the
meaning to be ascribed here. The two meanings — one concrete and the other abstract — are
sufficiently different that examination of the context will generally allow for a firm conclusion to be
reached.
52. Having conducted this examination, the Court is of the view that the interpretation advocated by
Nicaragua cannot be upheld.
The main reason for this is that ascribing the meaning “with goods” or “with articles” to the
phrase “con objetos” results in rendering meaningless the entire sentence in which the phrase
appears.
The part of Article VI which is relevant in this connection reads: “Costa Rica tendrá . . . los
derechos perpetuos de libre navegación . . ., con objetos de comercio, ya sea con Nicaragua ó al
interior de Costa Rica”.
If Nicaragua’s interpretation were to be accepted, there would be no intelligible relationship
between the clause following the phrase “con objetos de comercio”, i.e., “ya sea con Nicaragua ó
al interior de Costa Rica” (“whether with Nicaragua or with the interior of Costa Rica”), and the
preceding part of the sentence.
Either the words “with Nicaragua” would relate to “objetos de comercio”, which would hardly
make sense, since it would not be meaningful to speak of “goods (or articles) of trade with
Nicaragua”; or these words relate to “navegación” and that would make even less sense, because
the expression “navegación . . . con Nicaragua” would simply be incomprehensible.
By contrast, Costa Rica’s interpretation of the words “con objetos” allows the entire sentence to be
given coherent meaning. If the phrase means “purposes of commerce”, then the immediately
following clause, “ya sea con Nicaragua . . .”, plainly relates to “comercio” (“for the purposes of
commerce with Nicaragua . . .”), and the sentence then conveys a perfectly comprehensible idea.
Thus, in the present instance a literal analysis of the sentence containing the words requiring
interpretation leads to one of the proposed meanings being preferred over the other.
53. The preceding finding is supported by three additional arguments which all point to the same
conclusion.
54. First, “objetos” is used in another article of the 1858 Treaty, Article VIII, in which context it
can only have the abstract meaning of “purposes” or “subjects”: “Nicaragua se compromete á no
concluir otro (contrato) sobre los expresados objetos . . .” (“Nicaragua engages not to conclude
any other contract for those purposes . . .”).
It is reasonable to infer that the Parties tended to understand “objetos” in its abstract sense, or, at
least, that this meaning was familiar to them in their treaty practice.
55. Second, a further indication may be deduced from the “Cañas- Martinez” Peace Treaty signed
by the Parties on 8 December 1857 but which was never ratified and hence did not enter into force.
On the question of navigation on the San Juan, this instrument, replaced by the 1858 Treaty of
Limits, which repeats some of the earlier provisions, included the expression “artículos de
comercio”, which undoubtedly translates as “articles” or “goods” of commerce. This would tend to
show that when the Parties at the time wished to refer to physical property giving rise to commercial
transactions, they used a term other than “objetos de comercio”, a term having the advantage of
being unambiguous. Further, it is reasonable to believe that the Parties’ replacement of one word
with another in two successive instruments, the second of which was drafted shortly after the first,
indicates that the Parties wished in the second to refer to something different from that in the first
and that the two terms used must not be taken to mean the same thing.
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56. Finally, the Court also considers it significant that in 1887, when the two Parties each submitted
an English translation of the 1858 Treaty to President Cleveland for use in the arbitration
proceedings he was asked to conduct, even though their translations were not identical on all points,
they did use the same phrase to render the original “con objetos de comercio”: “for the purposes of
commerce”.
By itself, this argument is undoubtedly not conclusive, because the only authoritative version of the
instrument is the Spanish one and at the time the Parties might have made the same mistake in
translation, which cannot be treated as an implicit amendment of the 1858 Treaty. It is also no
doubt true that Nicaragua might have paid insufficient heed to the meaning of the term “objetos de
comercio”, which was not at issue in the questions submitted to the arbitrator; this could be the
explanation for a translation done by it in haste. It nonetheless remains the case that this
concurrence, occurring relatively soon after the Treaty was concluded, is a significant indication
that at the time both Parties understood “con objetos de comercio” to mean “for the purposes of
commerce”.
This is the meaning accepted by the Court.
(iii) The meaning of the word “commerce”
57. The preceding finding does not entirely resolve the issue of interpretation argued by the Parties.
Now that it has been determined that “con objetos de comercio” means “for the purposes of
commerce”, the meaning to be ascribed to the word “commerce” in the context of Article VI
remains to be determined, so that the exact extent of the right of free navigation can be defined. On
this point as well, the Parties disagree.
58. In Nicaragua’s view, for purposes of the Treaty, “commerce” covers solely the purchase and
sale of merchandise, of physical goods, and excludes all services, such as passenger transport. This
interpretation is clearly consistent with Nicaragua’s contention, just rejected, that “con objetos”
means “with merchandise”. But, Nicaragua argues, even if the phrase is translated as “for the
purposes of commerce”, the result is the same, because in 1858 the word “commerce” necessarily
meant trade in goods and did not extend to services, the inclusion of services being a very recent
development. Nicaragua admits that passengers were already being transported on the San Juan in
1858, and even that this was an especially profitable activity, but it adds that this activity did not fall
within the scope of what was commonly called “commerce” at that time. As for the transport of
tourists, there was no such activity at the time in the area in question.
Nicaragua contends that it is important to give the words used in the Treaty the meaning they had at
the time the Treaty was concluded, not their current meaning, which can be quite different, because
this is the only way to remain true to the intent of the drafters of the Treaty; and determining that
intent is the main task in the work of interpretation.
59. Costa Rica argues that “commerce” as used in the Treaty takes in any activity in pursuit of
commercial purposes and includes, inter alia, the transport of passengers, tourists among them, as
well as of goods. The Applicant adds that “commerce” is a broad concept which extends even
beyond for-profit activities; in this regard it cites the nineteenth- century editions of the Dictionary
of the Royal Spanish Academy, which gives the word “comercio” the second meaning of
“comunicación y trato de unas gentes ó pueblos con otros”, or communication and dealings of some
persons or peoples with others. It follows, argues Costa Rica, that “commerce” includes movement
and contact between inhabitants of the villages on the Costa Rican bank of the San Juan River, and
the use of the river for purposes of navigation by Costa Rican public officials providing the local
population with essential services, in areas such as health, education and security.
60. The Court can subscribe to neither the particularly broad interpretation advocated by Costa
Rica nor the excessively narrow one put forward by Nicaragua.
61. In respect of the first, the Court observes that, were it to be accepted, the result would be to
bring within the ambit of “navigation for the purposes of commerce” all, or virtually all, forms of
navigation on the river. If that had been the intent of the parties to the Treaty, it would be difficult to
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see why they went to the trouble of specifying that the right of free navigation was guaranteed “for
the purposes of commerce”, given that this language would have had virtually no effect. While
Costa Rica did maintain in the hearings that the phrase “for the purposes of commerce” in the
context of Article VI did not result in restricting the scope of the “right of free navigation” granted
earlier in the same sentence, but rather was intended to enlarge that right, the Court cannot adopt
this view: expressly stating the purpose for which a right may be exercised implies in principle the
exclusion of all other purposes and, consequently, imposes the limitation thus defined on the field of
application of the right in question — subject to the possibility that the right may be exercisable
beyond that scope on separate legal bases.
Thus, the language found in Article VI means that the right of free navigation granted to Costa Rica
in that provision applies exclusively within the ambit of navigation “for the purposes of commerce”
and ceases to apply beyond that ambit; the bounds of which it is now for the Court to determine.
This determination is without effect on the existence of any right of navigation which Costa Rica
may enjoy pursuant to provisions other than Article VI.
62. In respect of the narrow interpretation advanced by Nicaragua, the Court observes that it is
supported mainly by two arguments : the first is based on the Respondent’s interpretation of the
phrase “con objetos”, which has just been rejected; the second is based on the assertion that
“commerce” should be given the narrow meaning it had when the Treaty was entered into.
63. The Court does not agree with this second argument.
It is true that the terms used in a treaty must be interpreted in light of what is determined to have
been the parties’ common intention, which is, by definition, contemporaneous with the treaty’s
conclusion. That may lead a court seized of a dispute, or the parties themselves, when they seek to
determine the meaning of a treaty for purposes of good-faith compliance with it, to ascertain the
meaning a term had when the treaty was drafted, since doing so can shed light on the parties’
common intention. The Court has so proceeded in certain cases requiring it to interpret a term
whose meaning had evolved since the conclusion of the treaty at issue, and in those cases the Court
adhered to the original meaning (to this effect, see, for example, the Judgment of 27 August 1952 in
the case concerning Rights of Nationals of the United States of America in Morocco (France v.
United States of America) (I.C.J. Reports 1952, p. 176), on the question of the meaning of “dispute”
in the context of a treaty concluded in 1836, the Court having determined the meaning of this term
in Morocco when the treaty was concluded; the Judgment of 13 December 1999 in the case
concerning Kasikili/Sedudu Island (Bot- swana/Namibia) (I.C.J. Reports 1999 (II), p. 1062, para.
25) in respect of the meaning of “centre of the main channel” and “thalweg” when the Anglo-
German Agreement of 1890 was concluded).
64. This does not however signify that, where a term’s meaning is no longer the same as it was at
the date of conclusion, no account should ever be taken of its meaning at the time when the treaty is
to be interpreted for purposes of applying it.
On the one hand, the subsequent practice of the parties, within the meaning of Article 31 (3) (b) of
the Vienna Convention, can result in a departure from the original intent on the basis of a tacit
agreement between the parties. On the other hand, there are situations in which the parties’ intent
upon conclusion of the treaty was, or may be presumed to have been, to give the terms used — or
some of them — a meaning or content capable of evolving, not one fixed once and for all, so as to
make allowance for, among other things, developments in international law. In such instances it is
indeed in order to respect the parties’ common intention at the time the treaty was concluded, not
to depart from it, that account should be taken of the meaning acquired by the terms in question
upon each occasion on which the treaty is to be applied.
65. A good illustration of this reasoning is found in the Judgment handed down by the Court on 18
December 1978 in the case concerning Aegean Sea Continental Shelf (Greece v. Turkey) (I.C.J.
Reports 1978, p. 3).
Called upon to interpret a State’s reservation to a treaty excluding from the Court’s jurisdiction
“disputes relating to territorial status” of that State, where the meaning of “territorial status” was
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contested, the Court stated:

“Once it is established that the expression ‘the territorial status of Greece’ was used in Greece’s
instrument of accession [to the General Act of 1928] as a generic term denoting any matters
comprised within the concept of territorial status under general international law, the presumption
necessarily arises that its meaning was intended to follow the evolution of the law and to correspond
with the meaning attached to the expression by the law in force at any given time. This
presumption, in the view of the Court, is even more compelling when it is recalled that the 1928 Act
was a convention for the pacific settlement of disputes designed to be of the most general kind and of
continuing duration, for it hardly seems conceivable that in such a convention terms like ‘domestic
jurisdiction’ and ‘territorial status’ were intended to have a fixed content regardless of the
subsequent evolution of international law.” (Aegean Sea Continental Shelf (Greece v. Turkey),
Judgment, I.C.J. Reports 1978, p. 32, para. 77.)
66. Though adopted in connection with the interpretation of a reservation to a treaty, the Court’s
reasoning in that case is fully transposable for purposes of interpreting the terms themselves of a
treaty.
It is founded on the idea that, where the parties have used generic terms in a treaty, the parties
necessarily having been aware that the meaning of the terms was likely to evolve over time, and
where the treaty has been entered into for a very long period or is “of continuing duration”, the
parties must be presumed, as a general rule, to have intended those terms to have an evolving
meaning.
67. This is so in the present case in respect of the term “comercio” as used in Article VI of the 1858
Treaty. First, this is a generic term, referring to a class of activity. Second, the 1858 Treaty was
entered into for an unlimited duration; from the outset it was intended to create a legal régime
characterized by its perpetuity.
68. This last observation is buttressed by the object itself of the Treaty, which was to achieve a
permanent settlement between the parties of their territorial disputes. The territorial rules laid down
in treaties of this type are, by nature, particularly marked in their permanence, for, as the Court has
recently recalled:
“[I]t is a principle of international law that a territorial régime established by treaty ‘achieves a
permanence which the treaty itself does not necessarily enjoy’ and the continued existence of that
régime is not dependent upon the continuing life of the treaty under which the régime is agreed”
(Territorial and Maritime Dispute (Nicaragua v. Colombia), Preliminary Objections, I.C.J. Reports
2007 (II), p. 861, para. 89).
69. This is true as well of the right of free navigation guaranteed to Costa Rica by Article VI. This
right, described as “perpetual”, is so closely linked with the territorial settlement defined by the
Treaty — to such an extent that it can be considered an integral part of it — that it is characterized
by the same permanence as the territorial régime stricto sensu itself.
70. The Court concludes from the foregoing that the terms by which the extent of Costa Rica’s right
of free navigation has been defined, including in particular the term “comercio”, must be
understood to have the meaning they bear on each occasion on which the Treaty is to be applied,
and not necessarily their original meaning.
Thus, even assuming that the notion of “commerce” does not have the same meaning today as it did
in the mid-nineteenth century, it is the present meaning which must be accepted for purposes of
applying the Treaty.
71. Accordingly, the Court finds that the right of free navigation in question applies to the transport
of persons as well as the transport of goods, as the activity of transporting persons can be
commercial in nature nowadays. This is the case if the carrier engages in the activity for profit-
making purposes. A decisive consideration in this respect is whether a price (other than a token
price) is paid to the carrier — the boat operator — by the passengers or on their behalf. If so, then
the carrier’s activity is commercial in nature and the navigation in question must be regarded as
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“for the purposes of commerce” within the meaning of Article VI. The Court sees no persuasive
reason to exclude the transport of tourists from this category, subject to fulfillment of the same
condition.
On the other hand, any navigation not carried out either to transport goods intended to form the
subject of commercial transactions or to transport passengers in exchange for money paid by them
or on their behalf cannot be regarded as falling within the “purposes of commerce” under Article
VI. That is the case, in particular, of navigation by vessels used in the performance of governmental
activities or to provide public services which are not commercial in nature.”
Interpretation and systemic integration

Let us turn now to the principle of “systemic integration” which stems from the requirement of
Article 31 (3) (c) according to which “any relevant rules of international law applicable in the
relations between the parties” “shall be taken into account” when interpreting treaty provisions.
That rule of treaty interpretation has not been much used in the immediate years after it was inserted
in the Vienna Convention, but it was gradually applied by some courts and tribunals (notably, the
European Court of Human Rights in cases relating to the balance to be struck between the right to a
fair trial and the customary rule relating to the jurisdictional immunity of foreign State in domestic
courts: see Week 7). The true potential of Article 31 (3) (c) was brought to light when it was
applied by the ICJ in 2003, in a case between the Islamic Republic of Iran and the United States
of America.
The dispute between the two States arose out of the destruction of three offshore Iranian oil
platforms by the US Navy in October 1987 and April 1988, during what was called the “Tanker
War” which took place during the war between Iraq and Iran (1980-1988). The US alleged to have
carried out these attacks in self-defense, accusing Iran of having attacked vessels in the Persian Gulf
with mines and missiles and having engaged in military actions that were dangerous and
detrimental to commerce and navigation.
The case was brought by Iran under the Treaty of Amity, Economic Relations and Consular Rights
that had been concluded in 1955 between the two countries and that was still in force. Article XXI,
paragraph 2, of the Treaty provided for ICJ jurisdiction in case of disputes between the contracting
States about the interpretation or application of the Treaty. In 1996 and 1998, the Court found it had
jurisdiction to entertain the claim brought by Iran for violation of the Treaty and, respectively, the
counter-claim presented by the US for breach of the same Treaty. The two States based their
grievances on alleged breaches of Article X, paragraph 1, of the Treaty, which protects the
"freedom of commerce and navigation" between the two disputing States.
During the proceedings on the merits, the US tried to rely on Article XX, paragraph 1, (d) of the
Treaty, which provides that “the Treaty shall not preclude the application of measures...
(d) necessary to fulfill the obligations of a High Contracting Party for the maintenance or
restoration of international peace and security, or necessary to protect its essential security
interests”. The US argued that this provision was determinative of the question of the existence of
alleged breaches of its obligations under Article X because the actions complained of by Iran were
measures “necessary to protect its essential security interests”. The US denied to have breached
Article X by its military actions, but even if it were the case, it argued that the effect of the national
security interest clause under Article XX (1) (d) was to render those actions justified under the
Treaty itself.
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At the moment of the incidents, but also throughout the proceedings, the US justified its actions
under the right of self-defense (see Week 8). However, it considered that the Court’s jurisdiction
was limited to the provisions of the Treaty and could not extend to alleged breaches of the rules on
the use of force in international relations.
The Court had therefore to examine whether the measures “necessary to protect [the] essential
security interests” of the contracting parties under the Treaty could include unlawful use of force by
one party against the other one:
“39. The question of the relationship between self-defense and Article XX, paragraph 1 (d), of the
Treaty has been disputed between the Parties, in particular as regards the jurisdiction of the Court.
The United States emphasizes that the Court's jurisdiction in this case is limited, pursuant to Article
XXI, paragraph 2, of the 1955 Treaty, to the interpretation and application of that Treaty, and does
not extend directly to the determination of the legality of any action of either Party under general
international law. It has contended that “the Court need not address the question of self-defense …
[T]he scope of the exemption provided by Article XX, paragraph 1 (d), is not limited to those actions
that would also meet the standards for self-defense under customary international law and the
United Nations Charter." It however does not contend that the Treaty exempts it, as between the
parties, from the obligations of international law on the use of force, but simply that where a party
justifies certain action on the basis of Article XX, paragraph 1 (d), that action has to be tested solely
against the criteria of that Article, and the jurisdiction conferred on the Court by Article XXI,
paragraph 2, of the Treaty goes no further than that.
40. In the view of the Court, the matter is one of interpretation of the Treaty, and in particular of
Article XX, paragraph 1 (d). The question is whether the parties to the 1955 Treaty, when providing
therein that it should “not preclude the application of measures . . . necessary to protect [the]
essential security interests” of either party, intended that such should be the effect of the Treaty even
where those measures involved a use of armed force; and if so, whether they contemplated, or
assumed, a limitation that such use would have to comply with the conditions laid down by
international law. In the case concerning Military and Paramilitary Activities in and against
Nicaragua, the Court took the view that “action taken in self-defense, individual or collective, might
be considered as part of the wider category of measures qualified in Article XXI” – the text in that
case corresponding to Article XX of the 1955 Treaty – “as ‘necessary to protect’ the ‘essential
security interests’ of a party” (ICJ Reports 1986, p. 117, para. 224); and it cited an extract from the
proceedings of the United States Senate Foreign Relations Committee tending to show that such had
been the intentions of the Parties (ibid.). This approach is consistent with the view that, when Article
XX, paragraph 1 (d), is invoked to justify actions involving the use of armed force, allegedly in self-
defense, the interpretation and application of that Article will necessarily entail an assessment of the
conditions of legitimate self-defense under international law.
41. It should not be overlooked that Article 1 of the 1955 Treaty, quoted in paragraph 31 above,
declares that “There shall be firm and enduring peace and sincere friendship between the United
States of America and Iran”. The Court found in 1996 that this Article “is such as to throw light on
the interpretation of the other Treaty provisions” (I.C.J. Reports 1996 (II), p. 815, para. 3 1). It is
hardly consistent with Article 1 to interpret Article XX, paragraph 1 (d), to the effect that the
“measures” there contemplated could include even an unlawful use of force by one party against
the other. Moreover, under the general rules of treaty interpretation, as reflected in the 1969 Vienna
Convention on the Law of Treaties, interpretation must take into account “any relevant rules of
international law applicable in the relations between the parties” (Art. 31, para. 3 (c)). The Court
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, so as to be capable of
being successfully invoked, even in the limited context of a claim for breach of the Treaty, in relation
to an unlawful use of force. The application of the relevant rules of international law relating to this
question thus forms an integral part of the task of interpretation entrusted to the Court by Article
XXI, paragraph 2, of the 1955 Treaty.
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42. The Court is therefore satisfied that its jurisdiction under Article XXI, paragraph 2, of the 1955
Treaty to decide any question of interpretation or application of (inter alia) Article XX, paragraph 1
(d), of that Treaty extends, where appropriate, to the determination whether action alleged to be
justified under that paragraph was or was not an unlawful use of force, by reference to international
law applicable to this question, that is to say, the provisions of the Charter of the United Nations
and customary international law. The Court would however emphasize that its jurisdiction remains
limited to that conferred on it by Article XXI, paragraph 2, of the 1955 Treaty. The Court is always
conscious that it has jurisdiction only so far as conferred by the consent of the parties.” (ICJ, Oil
Platforms (Islamic Republic of Iran v. United States of America), 6 Nov. 2003, ICJ Reports, pp. 181-
183)
Another use of Article 31 (3) (c) of the Vienna Convention is to be found, for instance, in the
arbitral award of 24 May 2005 delivered in a case between Belgium and the Netherlands. The
case related to the Iron Rhine Railway, which runs through Dutch territory between the port of
Antwerp in Belgium and the industrial Ruhr region in Germany. The railway was conceded by the
Netherlands under the 1839 Treaty of Separation and another bilateral treaty concluded in 1873.
The railway remained part of Dutch territory, but Belgium was conferred a transit right. Building
and maintenance costs were to be paid by Belgium.
In mid-1990s, Belgium wanted to reactivate the railway line, which had gradually stopped to be
used. The parties disagreed on the costs of the reactivation, the Netherlands considering that
Belgium had to pay for expenses now required because of the development of environmental
protection law. The Tribunal referred to Article 31 (3) (c) and ruled that
“Provisions of general international law are also applicable to the relations between the Parties,
and thus should be taken into account in interpreting Article XII of the 1839 Treaty of Separation
and Article IV of the [1873] Iron Rhine Treaty. Further, international environmental law has
relevance to the relations between the Parties.” (PCA, Iron Rhine Arbitration (Belgium v.
Netherlands), 24 May 2005, para. 58)
The Tribunal somehow “updated” the 1839 and 1873 Treaties and interpreted them by taking due
account of current general international law and international environmental law.
Conflicting obligations (I + II)

The principle of systemic integration leads to interpret different rules of international law in an
harmonious way. Therefore, it promotes the avoidance of conflict between international
obligations.
However, harmonious interpretation is not always possible, so that situations exist where a State is
facing conflicting obligations: it will be impossible for that State to perform one obligation without
breaching another one at the same time. In such a situation, which obligation should prevail? Which
obligation should be preferred?
- Fake situations of conflict between obligations

Before answering that question, it is important to set aside what could be called fake situations of
conflict between obligations – situations where two irreconcilable obligations are not owed at the
same time by the same subject.
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o Most obviously, there are no conflicting obligations when a treaty derogates from
a general rule of customary international law
The treaty obligations will be owed between the parties to the treaty, while the
parties will have to respect the customary rule in their relations with third parties.
Most of the time, the principle of systemic integration will also help to accommodate
the coexistence between the treaty obligations on the one hand and the customary
rule on the other.
o Furthermore, no situation of conflict between obligations exist in the rather
hypothetical case where a treaty is void because it conflicts with a peremptory
norm of general international law: because the treaty will be void, no obligation
will be owed under the treaty and no conflict of obligations will exist.
In such a situation, there is of course a conflict between two sources of international
law, but such conflict does not result in a conflict of obligations between the
obligations under the treaty will not be owed since the treaty will lack validity.
o Another fake conflict situation exists when all the parties to a treaty later
conclude another treaty relating to the same subject-matter and that all the
provisions of the new treaty are so far incompatible with the earlier treaty that
the two treaties as a whole cannot be applied at the same time.
In such a situation, and as recalled by Article 59 of the Vienna Convention, the old
treaty is terminated and the parties must only apply the new treaty. Because the
parties to the two treaties are identical, this does not raise any problem. If that is the
case, there would be no conflicting obligations because the obligations under the old
treaty are not owed anymore and have been replaced by the obligations under the
new treaty.
- Real situations of conflict between obligations: possible solutions
o Conflict rule
It is important to keep in mind that a real situation of conflicting obligations requires that several
valid obligations be simultaneously owed by the same subject but that those obligations cannot be
performed at the same time because performing one entails the violation of the other one.
True situations of conflict between international obligations are not frequent in practice, but they
may nevertheless exist, most notably between treaty obligations. And those conflicts arise
essentially because the production of international law is not a centralized process.
In case of conflicting obligations, one possible solution is to consider that one obligation prevails
over the other one. The obligation being overruled is not void, but it is simply set aside as long as
the conflict remains.
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Ø This is what Article 103 of the United Nations Charter provides for: under Article 103,
obligations of the UN Member States under the Charter prevail over their obligations under
any other international agreement. In other words, the Charter, and the obligations arising
under the Charter – notably, the obligations imposed by the Security Council through
binding resolutions – enjoy hierarchical supremacy.
Paragraph 1 of Article 30 of the Vienna Convention, and Article 30 is the provision of the
Convention about conflicting obligations, Paragraph 1 of Article 30 refers to Article 103 of
the UN Charter.
No other treaty but the Charter and the obligations flowing from it enjoy a similar and
automatic supremacy. And of course, if several treaties had a similar legal supremacy, the
very notion of supremacy would run into trouble.
Another possibility is that, to use the words of Article 30, paragraph 2, of the Vienna
Convention: “a treaty specifies that it is subject to, or that it is not to be considered as incompatible
with, an earlier or a later treaty”. If that is the case, then the provisions of the earlier or later treaty
prevail depending on the choice made. Such a situation is not uncommon in practice.
Ø For instance, under Article 351 of the Treaty on the Functioning of the European Union,
treaties concluded by EU member States with third States before they acceded to the
Union are said to be not affected by the EU treaties. This means concretely that EU
Member States can validly disobey its EU obligations if that is needed in order to perform a
treaty it concluded with a third State before joining the Union.
However, the member State is also bound under Article 351 to “take all appropriate steps to
eliminate the incompatibilities” between the obligations under the pre-accession treaty
concluded with the third State and the obligations under EU law. The duty to eliminate the
conflict between those two types of obligations has been interpreted by the ECJ as requiring
that the pre-accession treaty be terminated by the member State if such possibility exists
under international law. And of course the termination of the pre-accession treaty puts an
end to any conflict of obligations.
Ø In other treaties, the preference for one treaty is expressed by a provision declaring that
the application of the treaty cannot be impeded by other agreements. For instance,
under Article 91 of the Cotonou Agreement, the contracting parties declared that “No treaty,
convention, agreement or arrangement of any kind between one or more Member States of
the [Union] and one or more ACP States may impede the implementation of this
Agreement”.
Sometimes, a treaty contains a commitment not to conclude agreements that would conflict
with the treaty. For instance, under Article 8 of the Washington Treaty of 1949 which established
the North Atlantic Treaty Organization, NATO member States undertook under that article “not to
enter into any international engagement in conflict with this Treaty”. Such commitment can be
interpreted as a conflict rule, from the point of view of the members of NATO.
In all those cases, it is not too difficult to decide which obligation must prevail.
o No conflict rule
In such a situation, which treaty should prevail?
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Absent any rule governing the conflict between obligations, the crucial distinction to be made is
whether the two successive and conflicting treaties are binding on exactly all the same parties, or
not.
In case of successive treaties that are binding on all the same parties, Article 30, paragraph 3, of
the Vienna Convention gives preference to the later treaty by saying that “the earlier treaty applies
only to the extent that its provisions are compatible with those of the later treaty”. In other words,
and to use again a latin phrase: lex posterior derogat priori. The later treaty prevails between the
parties and the earlier treaty which has not been terminated only applies to the extent it is
compatible with the obligations under the new treaty.
Giving preference to the obligations arising from the more recent treaty is a sensible solution
because one can presume that States have concluded the new treaty knowing what their prior
obligations are. And that if they decided to have new obligations conflicting with the old ones, it
was precisely in order to replace the old ones by the new ones. As all the parties to the earlier and
the later treaties are the same, there is no risk that any of them concluded the new treaty in order
to escape prior commitments.
But what happens if the parties to the later treaty do not include all the parties to the earlier
one? What happens if the earlier treaty was concluded between A, B, C and D, but that only A, B
and C have concluded the later treaty, leaving D out of it?
- In such a case, if preference is given to the later treaty, then D would be deprived of its
rights under the earlier treaty. Applying lex posteriori in such a case would amount to
lawfully permit to circumvent commitments made under the old treaty and indirectly
encourage States to conclude a new treaty in order to deprive some parties to the old treaty
of their rights under that treaty.
- However, as a matter of treaty law, such deprivation cannot occur without the consent of
the parties to the earlier treaty which are not bound by the new treaty.
Article 30, paragraph 4, of the Vienna Convention does not provide for a uniform solution and
requires to make distinctions according to the specific relations that are at stake.
- In the relations between the parties that are bound by both treaties, the same solution applies
as when the parties to earlier and the later treaty are identical.
So, between A, B and C, the later treaty applies and the earlier treaty will only apply
between them to the extent that its provisions are compatible with those of the later treaty.
- However, in the relations “between a State party to both treaties and a State party to only
one of the treaties, the treaty to which both States are parties governs their mutual rights and
obligations” under Article 30 paragraph 4 (b).
This means that between D and any of the other States A, B or C, the earlier treaty is the
only treaty common to all of them and therefore the only to apply between them. In other
words, D can require from A, B or C that they continue to perform the earlier treaty in its
favor, even at the cost of a breach of the later treaty between them. And if A, B or C choose
not to perform the earlier treaty in favor of D, then any of them would be responsible vis-à-
vis that State.
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In other words, an issue of responsibility for the breach of either of the conflicting treaties
will be unavoidable, and if the breach is a material breach within the meaning of Article 60
(cf. supra), then the issue of the suspension or the termination of the breached treaty may
occur. Article 30, paragraph 5, of the Vienna Convention recognizes that.
In other words, there is no perfect, harmonious solution to all cases of conflicting treaties and a
State will sometimes have to make a choice between its various treaty obligations. The choice
between preferring one obligation over another one will be unavoidable because performing one
treaty will necessarily entail the breach of the other treaty.
That choice is not controlled by preexisting legal rules on the basis of the nature of the treaties at
stake – is it for instance a human rights treaty or a trade agreement? – or on the basis of the special
or general character of the respective treaties – is it a humanitarian law treaty or a human rights
treaty? – or on the basis the nature of the parties at stake – is it a treaty owed to another State or to
an other international organization? At the end of the day, the choice to be made by the State will be
a political choice, rather than a legal choice because it will not be directed by legal rules. But, of
course, the State will also make its choice in light of the respective consequences and costs resulting
from each of the potential breaches, and those costs are issues of responsibility under international
law.
Performing international obligations

The rules on the sources of international do not say much about the content of international
obligations: they just explain how those obligations come to existence. Likewise, the Vienna
Convention on the Law of Treaties is essentially “instrument oriented”, i.e. it pays attention to
treaties as instruments for the creation of international obligations, but it is not “content oriented” as
it does not deal with the legal régime of the various obligations that can be created through treaties.
However, it is also important to address international law from a substantive point of view by
asking what it means to perform international obligations brought to existence through the different
sources of international law.
Now that we know which obligation is binding on whom and how to interpret international law,
now that we know also which obligation has to be preferred in case of conflicting obligations, let us
turn to the issue of the performance of international obligations: what is required in order to duly
perform an obligation?
It is actually impossible to give a general and abstract answer to that question and one needs to look
on a case-by-case basis on each obligation to determine what performing that obligation requires.
Moreover, it is often when a breach of the obligation is alleged that the issue of the proper
performance of the obligation will arise. And it is only then, if a breach is found, that the proper
performance will appear, and will appear a contrario.
As the International Law Commission has written in its 2001 final report on its draft Articles on the
responsibility of States for internationally wrongful acts:
“In some cases precisely defined conduct is expected from the State concerned; in others the
obligation only sets a minimum standard above which the State is free to act.
Conduct proscribed by an international obligation may involve an act or an omission or a
combination of acts and omissions; it may involve the passage of legislation, or specific
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administrative or other action in a given case, or even a threat of such action, whether or not the
threat is carried out, or a final judicial decision.
It may require the provision of facilities, or the taking of precautions or the enforcement of a
prohibition.
In every case, it is by comparing the conduct in fact engaged in by the State with the conduct legally
prescribed by the international obligation that one can determine whether or not there is a breach of
that obligation.”
It is beyond the scope of this course to detail the various types and characters of international
obligations and to see what behavior is required to duly perform each of them.
Furthermore, one must immediately point to the fact that there is no clear and authorized typology
of international obligations, with a specific regime attached to each of them.
And also it is important to realize that the specificities of each treaty prevent any
overgeneralization, while the drafters of treaties remain always free to invent obligations and to
invent their content.
This being said, let’s examine a few basic recurring distinctions:
1) First of all, some obligations may require that a certain result be achieved, either through an
action or through an abstention.
An obligation of result requiring to act would for instance the obligation by which two
neighborly States decide to build a dam on a common watercourse. Or an obligation by
which States have agreed to dismantle certain type and quantities of weapons. In those
cases, States have undertaken to do a certain thing and that thing has to be achieved for the
obligation to be duly performed.
An obligation of result requiring an abstention to act can be found in numerous obligations
taking the form of a prohibition, like the prohibition to use of force or the prohibition of
torture.
2) In contrast to obligations requiring that a certain result be achieved, other obligations only
require a certain conduct. In those cases, it is the behavior expected which is the object of
the obligation rather than its result.
For instance, the obligation to take all necessary measures to ensure that activities taking
place in the territory of the State do not cause any pollution abroad is an obligation requiring
a certain conduct, rather than a certain result in the sense that it does require the State to
succeed in avoiding pollution. To perform such obligation of conduct, the State will have
to act with due diligence in the particular case, and the obligation to prevent pollution can be
fulfilled even if pollution occurs.
Likewise, States must exercise administrative controls and take the necessary measures over
fishing vessels flying their flag, in particular in order to ensure that those vessels are not
engaged in what is called illegal, unreported and unregulated fishing activities in the
exclusive economic zones of other States. That obligation is also an obligation of due
diligence, as the International Tribunal for the Law of the Sea has ruled in April 2015.
Obligations to prevent certain outcomes, like pollution or even genocide, are all obligations
of conduct in that sense.
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Those obligations to prevent are only breached if the outcome to be prevented has occurred,
but it is not because it has occurred that the obligation to prevent has been breached. To put
in differently: the obligation to prevent will only be breached if the outcome to be prevented
has occurred and if the State breached the standard of due diligence required. As the ICJ has
put it in the case between Bosnia-Herzegovina and Serbia concerning the application of the
Convention on the prevention and punishment of the crime of genocide, responsibility for
breach of the obligation to prevent genocide “is incurred if the State manifestly failed to take
all measures to prevent genocide which were within its power, and which might have
contributed to preventing the genocide”.
The yardstick to assess the State conduct is whether it acted with due diligence, which calls
for an assessment in concreto.
3) If you turn to human rights obligations, most notably to social and economic rights, you will
see that a trilogy of obligations are usually referred to. It is said that by becoming parties to
human rights treaties, States assume the obligations to respect, to protect and to fulfill
human rights.
If you look at the website of the Office of the UN High Commissioner for Human Rights,
you will see those obligations defined as follows:
“The obligation to respect means that States must refrain from interfering with or curtailing
the enjoyment of human rights.
The obligation to protect requires States to protect individuals and groups against human
rights abuses.
The obligation to fulfill means that States must take positive action to facilitate the
enjoyment of basic human rights.”
Those obligations require negative or positive behavior, but they are not all obligations of
conduct as defined earlier, the obligation to respect being more of the type of an obligation
of result, while the obligation to protect, and certainly the obligation to fulfill, require to act
with due diligence.
In many cases, the State will need to enact domestic legislation in order to comply with its
international obligations. And sometimes, the enactment of domestic legislation will be a
requirement under the obligation itself: it will be a result required by the obligation (e.g. under a
treaty the State may be bound to criminalize certain acts under its own laws, like for instance the
financing of terrorism).
But more generally, enacting domestic legislation will not be a specific result required by the
international obligation itself, but it will be a necessary step to make sure that the obligation is
fulfilled and the treaty duly performed.
What is required to perform international obligations?

In 1993, the government of Bosnia and Herzegovina instituted proceedings at the ICJ against the
government of the Federal Republic of Yugoslavia for alleged violations of the 1948 Convention on
the Prevention and Punishment of the Crime of Genocide. The case raised many difficult legal
issues, both from a jurisdictional point of view as well as on the merits.
The judgment on the merits was delivered in 2007 and it dealt essentially with the alleged
responsibility of Serbia for having committed genocide and for acts of complicity in genocide.
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Without denying that a genocide had taken place in Srebrenica, the Court ruled that Serbia did not
commit genocide because the acts of the Bosnian Serbs militias that carried out the genocide could
not be attributed to Serbia under the customary rules governing the international responsibility of
States (see Week 6). Furthermore, the Court found that Serbia had not been complicit in genocide.
However, the Court found Serbia responsible for having violated two other obligations under the
1948 Convention: the obligation to prevent genocide and the obligation to punish genocide. Let us
turn to the reasoning of the Court on those two obligations:
“425. The Court now turns to the third and last of the questions set out in paragraph 379 above: has
the respondent State complied with its obligations to prevent and punish genocide under Article I of
the Convention? Despite the clear links between the duty to prevent genocide and the duty to punish
its perpetrators, these are, in the view of the Court, two distinct yet connected obligations, each of
which must be considered in turn.
426. It is true that, simply by its wording, Article I of the Convention brings out the close link
between prevention and punishment: “The Contracting Parties confirm that genocide, whether
committed in time of peace or in time of war, is a crime under international law which they
undertake to prevent and to punish.” It is also true that one of the most effective ways of preventing
criminal acts, in general, is to provide penalties for persons committing such acts, and to impose
those penalties effectively on those who commit the acts one is trying to prevent. Lastly, it is true
that, although in the subsequent Articles, the Convention includes fairly detailed provisions
concerning the duty to punish (Articles III to VII), it reverts to the obligation of prevention, stated as
a principle in Article I, only in Article VIII: “any Contracting Party may call upon the competent
organs of the United Nations to take such action under the Charter of the United Nations as they
consider appropriate for the prevention and suppression of acts of genocide or any of the other acts
enumerated in article III”.
427. However, it is not the case that the obligation to prevent has no separate legal existence of its
own; that it is, as it were, absorbed by the obligation to punish, which is therefore the only duty the
performance of which may be subject to review by the Court. The obligation on each contracting
State to prevent genocide is both normative and compelling. It is not merged in the duty to punish,
nor can it be regarded as simply a component of that duty. It has its own scope, which extends
beyond the particular case envisaged in Article VIII, namely reference to the competent organs of
the United Nations, for them to take such action as they deem appropriate. Even if and when these
organs have been called upon, this does not mean that the States parties to the Convention are
relieved of the obligation to take such action as they can to prevent genocide from occurring, while
respecting the United Nations Charter and any decisions that may have been taken by its competent
organs. This is the reason why the Court will first consider the manner in which the Respondent has
performed its obligation to prevent before examining the situation as regards the obligation to
punish.
(1) The Obligation to Prevent Genocide
428. As regards the obligation to prevent genocide, the Court thinks it necessary to begin with the
following introductory remarks and clarifications, amplifying the observations already made above.
429. First, the Genocide Convention is not the only international instrument providing for an
obligation on the States parties to it to take certain steps to prevent the acts it seeks to prohibit.
Many other instruments include a similar obligation, in various forms: see, for example, the
Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment of
10 December 1984 (Art. 2); the Convention on the Prevention and Punishment of Crimes against
Internationally Protected Persons, Including Diplomatic Agents, of 14 December 1973 (Art. 4); the
Convention on the Safety of United Nations and Associated Personnel of 9 December 1994 (Art.
11); the International Convention on the Suppression of Terrorist Bombings of 15 December 1997
(Art. 15). The content of the duty to prevent varies from one instrument to another, according to the
wording of the relevant provisions, and depending on the nature of the acts to be prevented.
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The decision of the Court does not, in this case, purport to establish a general jurisprudence
applicable to all cases where a treaty instrument, or other binding legal norm, includes an
obligation for States to prevent certain acts. Still less does the decision of the Court purport to find
whether, apart from the texts applicable to specific fields, there is a general obligation on States to
prevent the commission by other persons or entities of acts contrary to certain norms of general
international law. The Court will therefore confine itself to determining the specific scope of the
duty to prevent in the Genocide Convention, and to the extent that such a determination is necessary
to the decision to be given on the dispute before it. This will, of course, not absolve it of the need to
refer, if need be, to the rules of law whose scope extends beyond the specific field covered by the
Convention.
430. Secondly, it is clear that the obligation in question is one of conduct and not one of result, in
the sense that a State cannot be under an obligation to succeed, whatever the circumstances, in
preventing the commission of genocide: the obligation of States parties is rather to employ all
means reasonably available to them, so as to prevent genocide so far as possible. A State does not
incur responsibility simply because the desired result is not achieved; responsibility is however
incurred if the State manifestly failed to take all measures to prevent genocide which were within its
power, and which might have contributed to preventing the genocide. In this area the notion of “due
diligence”, which calls for an assessment in concreto, is of critical importance. Various parameters
operate when assessing whether a State has duly discharged the obligation concerned. The first,
which varies greatly from one State to another, is clearly the capacity to influence effectively the
action of persons likely to commit, or already committing, genocide. This capacity itself depends,
among other things, on the geographical distance of the State concerned from the scene of the
events, and on the strength of the political links, as well as links of all other kinds, between the
authorities of that State and the main actors in the events. The State’s capacity to influence must
also be assessed by legal criteria, since it is clear that every State may only act within the limits
permitted by international law; seen thus, a State’s capacity to influence may vary depending on its
particular legal position vis-à-vis the situations and persons facing the danger, or the reality, of
genocide. On the other hand, it is irrelevant whether the State whose responsibility is in issue
claims, or even proves, that even if it had employed all means reasonably at its disposal, they would
not have sufficed to prevent the commission of genocide. As well as being generally difficult to
prove, this is irrelevant to the breach of the obligation of conduct in question, the more so since the
possibility remains that the combined efforts of several States, each complying with its obligation to
prevent, might have achieved the result — averting the commission of genocide — which the efforts
of only one State were insufficient to produce.
431. Thirdly, a State can be held responsible for breaching the obligation to prevent genocide only if
genocide was actually committed. It is at the time when commission of the prohibited act (genocide
or any of the other acts listed in Article III of the Convention) begins that the breach of an
obligation of prevention occurs. In this respect, the Court refers to a general rule of the law of State
responsibility, stated by the ILC in Article 14, paragraph 3, of its Articles on State Responsibility:
“3. The breach of an international obligation requiring a State to prevent a given event occurs when
the event occurs and extends over the entire period during which the event continues and remains
not in conformity with that obligation”.
This obviously does not mean that the obligation to prevent genocide only comes into being when
perpetration of genocide commences; that would be absurd, since the whole point of the obligation
is to prevent, or attempt to prevent, the occurrence of the act. In fact, a State’s obligation to prevent,
and the corresponding duty to act, arise at the instant that the State learns of, or should normally
have learned of, the existence of a serious risk that genocide will be committed. From that moment
onwards, if the State has available to it means likely to have a deterrent effect on those suspected of
preparing genocide, or reasonably suspected of harbouring specific intent (dolus specialis), it is
under a duty to make such use of these means as the circumstances permit. However, if neither
genocide nor any of the other acts listed in Article III of the Convention are ultimately carried out,
then a State that omitted to act when it could have done so cannot be held responsible a posteriori,
since the event did not happen which, under the rule set out above, must occur for there to be a
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violation of the obligation to prevent. In consequence, in the present case the Court will have to
consider the Respondent’s conduct, in the light of its duty to prevent, solely in connection with the
massacres at Srebrenica, because these are the only acts in respect of which the Court has
concluded in this case that genocide was committed.
432. Fourth and finally, the Court believes it especially important to lay stress on the differences
between the requirements to be met before a State can be held to have violated the obligation to
prevent genocide — within the meaning of Article I of the Convention — and those to be satisfied in
order for a State to be held responsible for “complicity in genocide” — within the meaning of
Article III, paragraph (e) — as previously discussed. There are two main differences; they are so
significant as to make it impossible to treat the two types of violation in the same way. In the first
place, as noted above, complicity always requires that some positive action has been taken to
furnish aid or assistance to the perpetrators of the genocide, while a violation of the obligation to
prevent results from mere failure to adopt and implement suitable measures to prevent genocide
from being committed. In other words, while complicity results from commission, violation of the
obligation to prevent results from omission; this is merely the reflection of the notion that the ban on
genocide and the other acts listed in Article III, including complicity, places States under a negative
obligation, the obligation not to commit the prohibited acts, while the duty to prevent places States
under positive obligations, to do their best to ensure that such acts do not occur. In the second
place, as also noted above, there cannot be a finding of complicity against a State unless at the least
its organs were aware that genocide was about to be committed or was under way, and if the aid
and assistance supplied, from the moment they became so aware onwards, to the perpetrators of the
criminal acts or to those who were on the point of committing them, enabled or facilitated the
commission of the acts. In other words, an accomplice must have given support in perpetrating the
genocide with full knowledge of the facts. By contrast, a State may be found to have violated its
obligation to prevent even though it had no certainty, at the time when it should have acted, but
failed to do so, that genocide was about to be committed or was under way; for it to incur
responsibility on this basis it is enough that the State was aware, or should normally have been
aware, of the serious danger that acts of genocide would be committed. As will be seen below, this
latter difference could prove decisive in the present case in determining the responsibility incurred
by the Respondent.
433. In light of the foregoing, the Court will now consider the facts of the case. For the reasons
stated above (paragraph 431), it will confine itself to the FRY’s conduct vis-à-vis the Srebrenica
massacres.
434. The Court would first note that, during the period under consideration, the FRY was in a
position of influence over the Bosnian Serbs who devised and implemented the genocide in
Srebrenica, unlike that of any of the other States parties to the Genocide Convention owing to the
strength of the political, military and financial links between the FRY on the one hand and the
Republika Srpska and the VRS on the other, which, though somewhat weaker than in the preceding
period, nonetheless remained very close.
435. Secondly, the Court cannot but note that, on the relevant date, the FRY was bound by very
specific obligations by virtue of the two Orders indicating provisional measures delivered by the
Court in 1993. In particular, in its Order of 8 April 1993, the Court stated, inter alia, that although
not able, at that early stage in the proceedings, to make “definitive findings of fact or of
imputability” (I.C.J. Reports 1993, p. 22, para. 44) the FRY was required to ensure:
“that any military, paramilitary or irregular armed units which may be directed or supported by it,
as well as any organizations and persons which may be subject to its control, direction or influence,
do not commit any acts of genocide, of conspiracy to commit genocide, of direct and public
incitement to commit genocide, or of complicity in genocide . . .” (I.C.J. Reports 1993, p. 24, para.
52 A (2)).
The Court’s use, in the above passage, of the term “influence” is particularly revealing of the fact
that the Order concerned not only the persons or entities whose conduct was attributable to the
FRY, but also all those with whom the Respondent maintained close links and on which it could
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exert a certain influence. Although in principle the two issues are separate, and the second will be
examined below, it is not possible, when considering the way the Respondent discharged its
obligation of prevention under the Convention, to fail to take account of the obligation incumbent
upon it, albeit on a different basis, to implement the provisional measures indicated by the Court.
436. Thirdly, the Court recalls that although it has not found that the information available to the
Belgrade authorities indicated, as a matter of certainty, that genocide was imminent (which is why
complicity in genocide was not upheld above: paragraph 424), they could hardly have been
unaware of the serious risk of it once the VRS forces had decided to occupy the Srebrenica enclave.
Among the documents containing information clearly suggesting that such an awareness existed,
mention should be made of the above-mentioned report (see paragraphs 283 and 285 above) of the
United Nations Secretary-General prepared pursuant to General Assembly resolution 53/35 on the
“fall of Srebrenica” (United Nations doc. A/54/549), which recounts the visit to Belgrade on 14 July
1995 of the European Union negotiator Mr. Bildt to meet Mr. Miloševic. Mr. Bildt, in substance,
informed Mr. Miloševic of his serious concern and “pressed the President to arrange immediate
access for the UNHCR to assist the people of Srebrenica, and for the ICRC to start to register those
who were being treated by the BSA [Bosnian Serb Army] as prisoners of war”.
437. The Applicant has drawn attention to certain evidence given by General Wesley Clark before
the ICTY in the Miloševic case. General Clark referred to a conversation that he had had with
Miloševic during the negotiation of the Dayton Agreement. He stated that: “I went to Miloševic and
I asked him. I said, ‘If you have so much influence over these [Bosnian] Serbs, how could you have
allowed General Mladic to have killed all those people at Srebrenica? And he looked to me — at
me. His expression was very grave. He paused before he answered, and he said, ‘Well, General
Clark, I warned him not to do this, but he didn’t listen to me.’ And it was in the context of all the
publicity at the time about the Srebrenica massacre.” (Miloševic, IT-02-54-T, Transcript, 16
December 2003, pp. 30494- 30495).
General Clark gave it as his opinion, in his evidence before the ICTY, that the circumstances
indicated that Miloševic had foreknowledge of what was to be “a military operation combined with
a massacre” (ibid., p. 30497). The ICTY record shows that Miloševic denied ever making the
statement to which General Clark referred, but the Trial Chamber nevertheless relied on General
Clark’s testimony in its Decision of 16 June 2004 when rejecting the Motion for Judgment of
Acquittal (Miloševic, IT-02-54-T, Decision on Motion for Judgment of Acquittal, 16 June 2004,
para. 280).
438. In view of their undeniable influence and of the information, voicing serious concern, in their
possession, the Yugoslav federal authorities should, in the view of the Court, have made the best
efforts within their power to try and prevent the tragic events then taking shape, whose scale, though
it could not have been foreseen with certainty, might at least have been surmised. The FRY
leadership, and President Miloševic above all, were fully aware of the climate of deep-seated hatred
which reigned between the Bosnian Serbs and the Muslims in the Srebrenica region. As the Court
has noted in paragraph 423 above, it has not been shown that the decision to eliminate physically
the whole of the adult male population of the Muslim community of Srebrenica was brought to the
attention of the Belgrade authorities. Nevertheless, given all the international concern about what
looked likely to happen at Srebrenica, given Miloševic’s own observations to Mladic, which made it
clear that the dangers were known and that these dangers seemed to be of an order that could
suggest intent to commit genocide, unless brought under control, it must have been clear that there
was a serious risk of genocide in Srebrenica. Yet the Respondent has not shown that it took any
initiative to prevent what happened, or any action on its part to avert the atrocities which were
committed. It must therefore be concluded that the organs of the Respondent did nothing to prevent
the Srebrenica massacres, claiming that they were powerless to do so, which hardly tallies with
their known influence over the VRS. As indicated above, for a State to be held responsible for
breaching its obligation of prevention, it does not need to be proven that the State concerned
definitely had the power to prevent the genocide; it is sufficient that it had the means to do so and
that it manifestly refrained from using them.
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Such is the case here. In view of the foregoing, the Court concludes that the Respondent violated its
obligation to prevent the Srebrenica genocide in such a manner as to engage its international
responsibility.
(2) The Obligation to Punish Genocide
439. The Court now turns to the question of the Respondent’s compliance with its obligation to
punish the crime of genocide stemming from Article I and the other relevant provisions of the
Convention.
440. In its fifth final submission, Bosnia and Herzegovina requests the Court to adjudge and
declare: “5. That Serbia and Montenegro has violated and is violating its obligations under the
Convention on the Prevention and Punishment of the Crime of Genocide for having failed and for
failing to punish acts of genocide or any other act prohibited by the Convention on the Prevention
and Punishment of the Crime of Genocide, and for having failed and for failing to transfer
individuals accused of genocide or any other act prohibited by the Convention to the International
Criminal Tribunal for the former Yugoslavia and to fully co-operate with this Tribunal.”
441. This submission implicitly refers to Article VI of the Convention, according to which: “Persons
charged with genocide or any of the other acts enumerated in article III shall be tried by a
competent tribunal of the State in the territory of which the act was committed, or by such
international penal tribunal as may have jurisdiction with respect to those Contracting Parties
which shall have accepted its jurisdiction.”
442. The Court would first recall that the genocide in Srebrenica, the commission of which it has
established above, was not carried out in the Respondent’s territory. It concludes from this that the
Respondent cannot be charged with not having tried before its own courts those accused of having
participated in the Srebrenica genocide, either as principal perpetrators or as accomplices, or of
having committed one of the other acts mentioned in Article III of the Convention in connection with
the Srebrenica genocide. Even if Serbian domestic law granted jurisdiction to its criminal courts to
try those accused, and even supposing such proceedings were compatible with Serbia’s other
international obligations, inter alia its obligation to co-operate with the ICTY, to which the Court
will revert below, an obligation to try the perpetrators of the Srebrenica massacre in Serbia’s
domestic courts cannot be deduced from Article VI. Article VI only obliges the Contracting Parties
to institute and exercise territorial criminal jurisdiction; while it certainly does not prohibit States,
with respect to genocide, from conferring jurisdiction on their criminal courts based on criteria
other than where the crime was committed which are compatible with international law, in
particular the nationality of the accused, it does not oblige them to do so.
443. It is thus to the obligation for States parties to co-operate with the “international penal
tribunal” mentioned in the above provision that the Court must now turn its attention. For it is
certain that once such a court has been established, Article VI obliges the Contracting Parties
“which shall have accepted its jurisdiction” to co-operate with it, which implies that they will arrest
persons accused of genocide who are in their territory — even if the crime of which they are
accused was committed outside it — and, failing prosecution of them in the parties’ own courts, that
they will hand them over for trial by the competent international tribunal.
444. In order to determine whether the Respondent has fulfilled its obligations in this respect, the
Court must first answer two preliminary questions: does the ICTY constitute an “international penal
tribunal” within the meaning of Article VI? And must the Respondent be regarded as having
“accepted the jurisdiction” of the tribunal within the meaning of that provision?
445. As regards the first question, the Court considers that the reply must definitely be in the
affirmative. The notion of an “international penal tribunal” within the meaning of Article VI must at
least cover all international criminal courts created after the adoption of the Convention (at which
date no such court existed) of potentially universal scope, and competent to try the perpetrators of
genocide or any of the other acts enumerated in Article III. The nature of the legal instrument by
which such a court is established is without importance in this respect. When drafting the Genocide
Convention, its authors probably thought that such a court would be created by treaty: a clear
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pointer to this lies in the reference to “those Contracting Parties which shall have accepted [the]
jurisdiction” of the international penal tribunal. Yet, it would be contrary to the object of the
provision to interpret the notion of “international penal tribunal” restrictively in order to exclude
from it a court which, as in the case of the ICTY, was created pursuant to a United Nations Security
Council resolution adopted under Chapter VII of the Charter. The Court has found nothing to
suggest that such a possibility was considered by the authors of the Convention, but no intention of
seeking to exclude it can be imputed to them.
446. The question whether the Respondent must be regarded as having “accepted the jurisdiction”
of the ICTY within the meaning of Article VI must consequently be formulated as follows: is the
Respondent obliged to accept the jurisdiction of the ICTY, and to co-operate with the Tribunal by
virtue of the Security Council resolution which established it, or of some other rule of international
law? If so, it would have to be concluded that, for the Respondent, co-operation with the ICTY
constitutes both an obligation stemming from the resolution concerned and from the United Nations
Charter, or from another norm of international law obliging the Respondent to co-operate, and an
obligation arising from its status as a party to the Genocide Convention, this last clearly being the
only one of direct relevance in the present case.
447. For the purposes of the present case, the Court only has to determine whether the FRY was
under an obligation to co-operate with the ICTY, and if so, on what basis, from when the Srebrenica
genocide was committed in July 1995. To that end, suffice it to note that the FRY was under an
obligation to co-operate with the ICTY from 14 December 1995 at the latest, the date of the signing
and entry into force of the Dayton Agreement between Bosnia and Herzegovina, Croatia and the
FRY. Annex 1A of that treaty, made binding on the parties by virtue of its Article II, provides that
they must fully co-operate, notably with the ICTY. Thus, from 14 December 1995 at the latest, and at
least on the basis of the Dayton Agreement, the FRY must be regarded as having “accepted [the]
jurisdiction” of the ICTY within the meaning of Article VI of the Convention. This fact is sufficient
for the Court in its consideration of the present case, since its task is to rule upon the Respondent’s
compliance with the obligation resulting from Article VI of the Convention in relation to the
Srebrenica genocide, from when it was perpetrated to the present day, and since the Applicant has
not invoked any failure to respect the obligation to co-operate alleged to have occurred specifically
between July and December 1995. Similarly, the Court is not required to decide whether, between
1995 and 2000, the FRY’s obligation to co-operate had any legal basis besides the Dayton
Agreement. Needless to say, the admission of the FRY to the United Nations in 2000 provided a
further basis for its obligation to co-operate: but while the legal basis concerned was thereby
confirmed, that did not change the scope of the obligation. There is therefore no need, for the
purposes of assessing how the Respondent has complied with its obligation under Article VI of the
Convention, to distinguish between the period before and the period after its admission as a Member
of the United Nations, at any event from 14 December 1995 onwards.
448. Turning now to the facts of the case, the question the Court must answer is whether the
Respondent has fully co-operated with the ICTY, in particular by arresting and handing over to the
Tribunal any persons accused of genocide as a result of the Srebrenica genocide and finding
themselves on its territory. In this connection, the Court would first observe that, during the oral
proceedings, the Respondent asserted that the duty to co-operate had been complied with following
the régime change in Belgrade in the year 2000, thus implicitly admitting that such had not been the
case during the preceding period. The conduct of the organs of the FRY before the régime change
however engages the Respondent’s international responsibility just as much as it does that of its
State authorities from that date. Further, the Court cannot but attach a certain weight to the
plentiful, and mutually corroborative, information suggesting that General Mladic, indicted by the
ICTY for genocide, as one of those principally responsible for the Srebrenica massacres, was on the
territory of the Respondent at least on several occasions and for substantial periods during the last
few years and is still there now, without the Serb authorities doing what they could and can
reasonably do to ascertain exactly where he is living and arrest him. In particular, counsel for the
Applicant referred during the hearings to recent statements made by the Respondent’s Minister for
Foreign Affairs, reproduced in the national press in April 2006, and according to which the
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intelligence services of that State knew where Mladic was living in Serbia, but refrained from
informing the authorities competent to order his arrest because certain members of those services
had allegedly remained loyal to the fugitive. The authenticity and accuracy of those statements has
not been disputed by the Respondent at any time.
449. It therefore appears to the Court sufficiently established that the Respondent failed in its duty
to co-operate fully with the ICTY. This failure constitutes a violation by the Respondent of its duties
as a party to the Dayton Agreement, and as a Member of the United Nations, and accordingly a
violation of its obligations under Article VI of the Genocide Convention. The Court is of course
without jurisdiction in the present case to declare that the Respondent has breached any obligations
other than those under the Convention. But as the Court has jurisdiction to declare a breach of
Article VI insofar as it obliges States to co-operate with the “international penal tribunal”, the
Court may find for that purpose that the requirements for the existence of such a breach have been
met. One of those requirements is that the State whose responsibility is in issue must have “accepted
[the] jurisdiction” of that “international penal tribunal”; the Court thus finds that the Respondent
was under a duty to co-operate with the tribunal concerned pursuant to international instruments
other than the Convention, and failed in that duty. On this point, the Applicant’s submissions
relating to the violation by the Respondent of Articles I and VI of the Convention must therefore be
upheld.
450. It follows from the foregoing considerations that the Respondent failed to comply both with its
obligation to prevent and its obligation to punish genocide deriving from the Convention, and that
its international responsibility is thereby engaged.” (ICJ, Application of the Convention on the
Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Serbia and
Montenegro), 26 Feb. 2007, ICJ Reports, pp. 219-229, paras. 425-450)
Relationship between international law and domestic law (I + II)

To what extent can individuals or corporations rely on international law provisions to defeat the
application of national laws? To what extent can you sue the public authorities for damages when
public authorities have acted in disregard of the international law obligations of the State? Can you
rely on a treaty provision in order to claim the invalidity of an administrative decision affecting you,
or even the invalidity of an act of Parliament?
Additionally, questions about the relationship between municipal law and international law also
raise constitutional issues about the respective responsibilities of the executive and of the legislature
in the making of treaties. And of course, all those questions receive different answers in the
different States of the world.
There are two ways to look at the issue of the relationship between international law and domestic
law, or rather two perspectives from which that relationship can be viewed and explained: either
you look at that relationship from the point of view of international law, or you look at it from the
point of view of the municipal legal order at stake.
- From the point of view of international law

From that perspective, things are quite easy to understand: from the point of view of international
law, municipal law, domestic law, is a fact.
Remember Article 27 of the Vienna Convention on the Law of Treaties: it is an axiomatic
principle of international law that a State cannot rely on the provisions of its own domestic law as
justification for its failure to perform its international law obligations. The reasons for this is that
the domestic law is the result of the own and unilateral will of the State concerned and such will
cannot validly defeat the performance of obligations resulting from the common will of various
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States. The only exception to that principle is the defect of consent based on Article 46 of the
Vienna Convention.
Saying that domestic law is a fact from the point of view of international law does not mean that
international law would deny the legal nature of domestic law: it simply means that the only
question that arises under international law is whether domestic law is in conformity, or not, with
the international obligations of the State.
- If the domestic law is not in conformity, then the State is responsible for a breach of its
international obligations. The domestic law remains valid as a matter of domestic law, and
the question is not to know whether it is valid or invalid under international law: the only
issue is to know whether it is in fact compatible, or not, with what international law requires
from the State which is the author of the domestic act at stake.
In other words, from the point of international law, it is somehow a misnomer to say that in
case of conflict between a rule of international law and a rule of domestic law, the rule of
international law must prevail. That’s a misnomer because actually it is only if there is a real
conflict between two norms, two rules, than one can call that one prevails over the other
one. But domestic law has no normative status in international law, domestic law is not a
source of international law.
Well, true, when a comparative law exercise leads to the discovery of a general principle of
law within the meaning of Article 38 of the ICJ Statute, domestic law is duly taken into
account in the formation of a rule of international law, but this is of course something
completely different, and when the general principle exists, it exists as a rule of international
law, despite its domestic comparative law origin.
In a case concerning certain German interests in Polish Upper Silesia, the Permanent Court
of International Justice famously stated in 1926 that:
“From the standpoint of International Law and of the Court which is its organ, municipal
laws are merely facts which express the will and constitute the activities of States, in the
same manner as do legal decisions or administrative measures. The Court is certainly not
called upon to interpret the Polish law as such; but there is nothing to prevent the Court's
giving judgment on the question whether or not, in applying that law, Poland is acting in
conformity with its obligations towards Germany under the Geneva Convention.”
The fundamental logic of the relationship between domestic law and international law, from
the standpoint of international law, has not changed since 1926 – and it could not really be
otherwise.
Of course, international courts and tribunals pay attention to domestic law and sometimes
they must refer to domestic law to decide on issues of international law.
Ø For instance, if a bilateral investment treaty gives rights to investors having the
nationality of the parties, the investment tribunal’s jurisdiction can be challenged by
the respondent State by arguing that the person suing the State, the claimant, is not a
national of the other contracting State protected under the treaty, and therefore that
he/she is not entitled to start the arbitral proceedings. In order to decide on that issue,
the tribunal will have to turn to the domestic laws of the State relating to nationality.
But in such a case, the domestic law issue will be somehow a preliminary question
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and will need to be looked at because the treaty provisions refer to the issue of
nationality.
Ø To take another example where a domestic law issue can be relevant: if an
international court has to decide on the international responsibility of a State and that
the State contests that the person who acted was one of its civil servants, the tribunal
or the court will have to look in the domestic rules of the State to see whether the
person had an official status as agent of the State, etc.
- From the point of view of domestic law

From the point of view of the domestic law of each State, international law is not a fact, but it is
law. And this is simply because States participate in the creation of rules of international law,
through their organs and according to their respective constitutions.
It would be ridiculous, from the point of view of every State, to consider that the rules of
international law the State helped to develop would simply be facts and not rules of international
law. After all, the State wanted those rules to exist as rules of international law and the State knows
very well that if it decides to be bound by them, it will have no legal choice but to comply with
them under international law.
However, if international law is law from the perspective of domestic law, is it law that is part of
domestic law or is it law that remains separate from domestic law? Those are two ways of looking
at international law as law from the perspective of domestic law:
- Monism: you consider that international law and domestic law form together one unified
legal order as it were, that international law is part of domestic law automatically and that it
prevails over domestic law in case of conflict.
- Dualism: you consider that international law is law but that it remains distinct from
domestic law, that they both exist as law, but that international law remains separate from
domestic law and only penetrates domestic law, and interacts with it, according to the
conditions laid out in domestic law itself.
The truth of the matter is that pure monism or pure dualism do not really exist in the real world.
True, some States are more monist or more dualist than others, but each rather monist State has a
dose of dualism and each rather dualist State has a dose of monism.
Ø For instance, Belgium is traditionally considered as a rather monist State, but treaties do not
penetrate the domestic Belgian legal order without being approved by the parliament –
which is an element of dualism. If they are not approved by parliament, treaties ratified by
the government are internationally binding on the State, but they remain outside the
domestic legal order, they have no effect in Belgium and cannot be applied by the Belgian
courts.
Ø In the United Kingdom – which is traditionally considered as a dualist State –, as in most
States, it is said that “customary international law is part of the law of the land”. In other
words, that customary international law applies in English law and is a source of law in
English law – and that’s an element of monism.
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This diversity points to something which is essential: international law does not compel States to be
monist and it does not prohibit them to be dualist. Actually, there is no rule of international law
on the matter and States remain absolutely free in that regard.
Of course, if a State decides to adopt a rather monist approach of its relationship with international
law, and if it decides also that in case of conflict between domestic law and international law, the
latter shall prevail, then that State is statistically less likely of being found in breach of international
law.
But the State is perfectly free to prefer to stick with a dualist approach, even at the risk of being
more often found guilty, at the international level, of being in violation of its international law
obligations. The State may prefer to see its constitution or its laws prevail over its international law
commitments. True, that is absolutely not acceptable from the point of view of international law.
And it would result in the State being found responsible for a breach of its international obligations
because, from the point of international law again, not even the constitution of the State might serve
as an excuse for not implementing international obligations.
But the fact of the matter is that being a dualist is not, as such, a violation of any international
obligation. It is only the implementation of a dualist stance that leads to breaches of specific
international obligations.
Direct effect of treaties

In every State, there are rules, most often, constitutional rules, rules governing the treaty-making
power of the State.
Usually, the government – the executive – is entitled to negotiate and to sign treaties. Sometimes
the government is also entitled to conclude and ratify certain treaties, while in some States the
executive is not entitled to ratify any treaty on its own and treaties must be ratified by the
legislature. In other States, the executive is entitled to ratify treaties but those treaties must be
approved by an act of parliament in order to have legal effect in the domestic legal order of the
State.
International law does not govern those issues. They are entirely left to the sovereign choices of
States, and those choices reflect fundamental conceptions about the relations and separations
between the various powers within the State, choices that are based on political philosophy, on
history and on constitutional traditions.
Furthermore, each State remains free to decide if international law produces legal effects within its
own municipal legal order, and to what extent those effects exist in case of conflict between
domestic law provisions and international law provisions. The State is free to accept that
international law prevails over its laws or even over its constitution (which is extremely rare but
exists), or the State may prefer that in case of conflict, its own rules prevail. Those choices, again,
are left to States, knowing of course that the more the State refuses that international law produces
effects in its domestic legal order, the more likely it is that it will be found in breach of its
international law obligations on the international level.
After a treaty has been duly ratified by a State and that all the constitutional requirements have been
met, the State is called to implement the treaty and that may require enacting a domestic statute –
but it does not always require that. And this is because certain treaties, or even certain provisions of
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certain treaties, are said to be self-executing or, to put it differently, they have direct effect or are
directly applicable.
Let’s refer here to the very first case decided by a prominent international court on the matter.
After the First World War, the German city of Danzig (today Gdansk in Poland) and the nearby
villages were established as the Free City of Danzig by the Treaty of Versailles. The Free City had a
very special status: it was separated from Germany but it was not incorporated into the newly
independent Polish State. The Free City was not an independent State as such, but was put under the
protection of the League of Nations. It formed a customs union with Poland and Poland received the
right to use the port facilities and organize the railways.
Some railway officials of Danzig who had passed into the Polish service had pecuniary claims
against the Polish railways administration, on the basis of what was called in German the
“Beamtenabkommen”, i.e. an agreement about those officials that had been concluded between the
Free City of Danzig and Poland.
The jurisdiction of the Danzig courts to hear the case depended on the possibility for those officials
to benefit from the agreement.
Poland argued that the Danzig officials had no right under the agreement because the agreement
only created rights and obligations between the contracting parties, that is the Free City and the
Polish State. Poland argued that, in the absence of any Polish implementing legislation, the
agreement could not be applied to the benefit of individuals and that Poland’s possible failure to
implement the agreement and to legislate for that purpose could only trigger the responsibility of
Poland vis-à-vis the Free City of Danzig. So Poland did not contest that it had to respect the
agreement, but it argued that the relations between the former Danzig railways officials who had
passed to the service of the Polish railways was exclusively governed by Polish law and that they
could not rely on the agreement to claim benefits in Danzig courts. The High Commissioner of the
League of Nations at Danzig agreed with Poland.
The Council of the League of Nations requested an advisory opinion of the Permanent Court of
International Justice on the matter.
And in 1928, the Court overturned the decision of the High Commissioner and it ruled that the
former Danzig officials were entitled to rely on the agreement and to benefit from it, even in the
absence of any Polish implementing act.
According to the Court, the question to be asked was as follows: “Does the Beamtenabkommen, as
it stands, form part of the series of provisions governing the legal relationship between the Polish
Railways Administration and the Danzig officials who have passed into its service?”. And the Court
answered: “The answer to this question depends upon the intention of the contracting Parties”.
The Court said that, indeed, in general, treaties only created rights and obligations between the
contracting parties. However, in light of the very object of the treaty, the Court stressed that the
parties may very well establish definite rules creating individual rights and obligations. To know
whether such was the intention of the parties, the Court said that one had to look at the terms of the
agreement, at its content. And the Court concluded that “the provisions [of the agreement] are
directly applicable as between the [Danzig] officials and the [Polish railways] Administration”.
In other words, treaties may create rights and obligations to the direct benefit of individuals. In
order to know whether a treaty has such an effect, one needs to look at two things:
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1) The object of the treaty: does the treaty concern individuals? Is it about individuals?
2) If that is the case, one needs to determine whether it was the intention of the parties to create
rights or obligations to the direct benefit of individuals, rights and obligations that do not
need to be implemented through domestic legislation.
In order to discover such intention, one needs to look at the terms of the treaty. In other
words, deciding whether a treaty provision is directly applicable or not is an issue of treaty
interpretation. If the terms of the treaty are sufficiently clear, precise and unconditional,
courts will most likely consider that the treaty does not need an implementing act in order
for individuals to directly benefit from it. The treaty provision will be considered as self-
sufficient, as having direct effect.
Ø For instance, it is not the same thing to write in a treaty: “The death penalty is
abolished” or to write “The High Contracting parties will take the necessary
measures to abolish the death penalty in their respective criminal legislation”.
Under the first and concise draft, one could consider that the provision is self-
executing – the death penalty is abolished – and it does not require implementing
legislation.
This is not the case of the second draft. It calls for implementation.
If direct effect is a matter of international law, such effect can however only take place in the
domestic legal order of a State if that order has opened its door to the treaty as it were. That is if the
internal effectiveness of the treaty has been granted because the treaty has been duly approved by
the constitutional organ competent in that regard.
This being said, it is important to keep in mind that direct effect of treaties is not a matter of
domestic law: the issue appertaining to domestic law is whether the treaty has duly entered into the
domestic legal order.
But the treaty accessing the domestic legal order, its normative status in that order, is not to be
confused with the issue of the direct effect of the treaty, which is an issue of international law, as it
depends ultimately on the intention of the contracting parties as expressed in the terms of the treaty.
Direct effect of treaties is now a well-established issue in human rights treaties and in many other
treaties and is a central feature of the law of the European Union. It is a daily issue, and hundreds of
cases of international or domestic courts could be quoted to illustrate the concept and its
application.
Direct effect plays an important role in the relationship between municipal law and international
law because in some legal orders, the primacy of international law over domestic law (which is a
domestic law issue) is conditioned upon the direct effect of the treaty provision (which is an
international law issue).
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Week 6: Claiming responsibility

I. NOTION
The notion of responsibility in international law

What happens when international obligations are breached, i.e. when international law is not duly
applied? In other words: what are, under international law, the legal consequences of internationally
wrongful acts?
- Notion
Asking such a question is asking about the regime of international responsibility. Of course,
responsibility is first and foremost a moral concept, but it is also a legal concept and it exists, in
various forms (from criminal responsibility to civil or tortious responsibility), in every legal system.
What the rules on responsibility have all in common is the fact that they come into play when the
conduct of a legal subject does not conform with what is required from it under the law. In order to
preserve the integrity of the legal order and to protect the victim of the breach, the breach is not left
without legal consequences, those consequences being required under the rules on responsibility. In
that sense, the rules on responsibility are said to constitute together “secondary rules” which are
triggered when obligations that are owed under “primary rules” commanding certain conducts are
breached. The primary rules are the substantive obligations created through the various processes
that we identified as the sources of international law. And the secondary rules on international
responsibility are rules of customary international law that automatically apply in case an obligation
under a primary rule is breached.
- The ILC and the ARSIWA
Those customary rules have been codified and developed over the years by the International Law
Commission. The ILC took about half a century to codify the customary rules relating to State
responsibility, and the United Nations General Assembly finally took note in 2001 of the draft
Articles prepared by the ILC. It is entitled Articles on State Responsibility for Internationally
Wrongful Act (ARSIWA). The work of the ILC is essential in that regard and it is just impossible
today to speak about international responsibility without referring to it. The Articles were
elaborated by the ILC on the basis of a careful digestion of State practice and they were adopted by
the General Assembly without any opposition and without a vote. It is usually therefore considered
that they reflect customary international law to a very large extent. And furthermore, since the
adoption of the Articles, States and courts have referred to them and so they confirmed their
customary status. Those Articles undoubtedly constitute today acceptable law on State
responsibility.
Let’s now say a few words about the intellectual and the conceptual foundation of the ILC work on
international responsibility. To a large extent, the Articles on State Responsibility conceptually
stem from the work of Roberto Ago, an Italian scholar who had been one of the key special
rapporteur of the ILC on the topic of State responsibility and who later became judge at the ICJ.
Other special rapporteurs34 were involved in the work of the ILC on State responsibility and they all
34
To name just a few: Willem Riphagen, a Dutch jurist, Gaetano Arangio-Ruiz, another Italian scholar, and finally
James Crawford from Australia who was professor at Cambridge for many years. Crawford concluded the work of the
ILC on the topic in 2001 and he was later elected judge at the ICJ in 2014.
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built from the conceptual foundations that was laid down by Ago. The conceptual breakthrough that
was brought over by Roberto Ago – and which resulted from earlier work dating from the 1930s
under the influence of his master Dionisio Anzilotti – was to consider that there was one unified
regime of responsibility in international law, that responsibility automatically stemmed from the
commission of any internationally wrongful act and that all the legal consequences resulting from
any wrongful act were forming part of the secondary rules on State responsibility. According to
Roberto Ago, those legal consequences are of two different types, and those are elaborated under
the Articles on State Responsibility:
- On the one hand, any wrongful act triggers the substantial obligation to make good the
injury resulting from it (reparation).
In domestic law, this could be called the “civil” or tortious side of responsibility.
- On the other hand, and because international law is a decentralized legal order, the
commission of a wrongful act also gives rise to the possibility for the injured State to take
certain measures – measures that are called “counter-measures” in order to protect itself
from the wrongful act and to put pressure on the State that is responsible for it.
In domestic law, this would rather correspond to the criminal, the sanctioning, side of
responsibility, but of course this comparison is, as we shall see, not perfectly adequate.
All those substantial and instrumental consequences are governed by the rules on State
Responsibility for Internationally Wrongful Act. Article 1 ARSIWA, finally adopted by the
General Assembly in 2001, reflects the conceptual views of Ago and defines international
responsibility as follows: “Every internationally wrongful act of a State entails the international
responsibility of that State”. In other words, what triggers international responsibility is the
commission of an internationally wrongful act, and of a wrongful act only. There is no need that
the internationally wrongful act results in an injury for responsibility to exist. Responsibility results
from a behaviour which is objectively contrary to an international obligation, irrespective of any
fault being committed.
Article 2 continues by stating the elements of an internationally wrongful act. An internationally
wrongful act is made of two elements:
- An objective element, which is the fact that a conduct consisting of an action or omission
does not conform with the international obligation of the State.
- And a subjective element, which is the fact that such a conduct is legally attributable to the
State “under international law”.
Attribution, as we shall see, is a central issue in international responsibility because States
are abstract entities and they only act through human beings.
The Articles on State Responsibility deal first with attribution and then with wrongfulness, but, for
the sake of convenience, we’ll reverse that order and start with wrongfulness.
In that regard, Article 3 of the Articles on State Responsibility states that:
“The characterization of an act of a State as internationally wrongful is governed by international
law. Such characterization is not affected by the characterization of the same act as lawful by
internal law.”
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And this is fundamental and it reflects an axiomatic principle that we know already, according to
which a State cannot rely on its internal law in order to escape its international obligations. In a case
between the United States of America and Italy, the ICJ recalled that:
“Compliance with municipal law and compliance with the provisions of a treaty are different
questions. What is a breach of treaty may be lawful in the municipal law and what is unlawful in the
municipal law may be wholly innocent of violation of a treaty provision.”
Those three Articles form together the general principles governing the law of State responsibility
for internationally wrongful act.
In substance, the same principles apply to the responsibility of international organizations when
they commit internationally wrongful acts. The ILC has also codified the rules on international
responsibility of international organizations. And its work on this topic was conducted by another
Italian scholar, professor Giorgio Gaja who was elected judge at the ICJ in 2011, just after the
General Assembly also took note of the completed work of the ILC on the subject. Conceptually,
the Articles on the Responsibility of International Organizations (ARIO) very much resemble
the Articles on the Responsibility of States.
II. INTERNATIONALLY WRONGFUL ACT
The objective element of the internationally wrongful act: the breach of an international
obligation
As the International Law Commission has put it: “[...]it is by comparing the conduct in fact
engaged in by the State with the conduct legally prescribed by the international obligation that one
can determine whether or not there is a breach of that obligation” (Report of the Commission to
the General Assembly on the work of 53rd session, YbILC, 2001, Vol. 2, Part II, Art. 12, p. 55).
Article 12 ARSIWA conveys the same elementary idea.
- “[R]egardless of its origin” means that it does not matter whether the obligation breached is
to be found in a treaty, or if it is a rule of customary international law, a general principle of
law, a unilateral undertaking by the State concerned or a unilateral act of an international
organization binding on that State.
- “[R]egardless of its [...] character” means that it does not matter whether the obligation
breached is an obligation of result, or an obligation of conduct, or an obligation to prevent,
etc.
Article 13 ARSIWA requires that the international obligation breached be in force and binding on
the State when it acted.
In the Island of Palmas case (cf. Week 2), arbitrator Max Huber famously considered that: “[A]
juridical fact must be appreciated in the light of the law contemporary with it, and not of the law in
force at the time when a dispute in regard to it arises or falls to be settled.” (PCA, Island of
Palmas (Netherlands/United States of America), 4 April 1928, UNRIAA, vol. II, at p. 845). That
essential principle of international law is called the “contemporaneity principle”: there is no
wrongful act, and hence no international responsibility, if the obligation allegedly breached did not
exist as an obligation for the State at the moment of its impugned conduct. International
responsibility is never retroactive and the legality of a conduct must be assessed in light of the rules
binding on the State at the time of its conduct.
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Ø For instance, and despite having been morally abhorrent, slavery was not prohibited
under international law for many centuries and it was only (universally) outlawed
around 1820.
Claiming that States incur international responsibility for having engaged in slave-
trade prior to that date is not legally sound. However, States may accept ex gratia to
be morally responsible for past wrongs that were not wrongful at the time they
occurred. If the act is wrongful at the time it occurred, responsibility for it remains,
even if the obligation breached has been replaced or terminated at the time of the
claim: the principle of incurred rights is another feature of international law.
Article 14 ARSIWA is about the extension in time of wrongful acts, which is another feature of
their temporality. The distinction between instantaneous breaches and continuing breaches,
which is of great importance in order to determine if the obligation of cessation is owed (cf. infra),
is reflected in paragraphs 1 and 2 of Articles 14.
Ø Instantaneous wrongful acts are for instance: the assassination of a foreign diplomat,
the killing of prisoners of war, the destruction of a single military target abroad,
torturing of an inmate, etc.
The continued effects of such acts has no influence on their instantaneous character.
Ø Wrongful acts that extend over time, and are therefore of a continuing character, are
very frequent in practice: the continued occupation of foreign territory, the wrongful
detention of individuals, the continued seizure of property without expropriation, the
failure to conduct judicial enquiry over wrongful killings, etc.
Wrongful acts that extended over time may have come to an end by the time of the
claim: while there ongoing character will be lacking, their temporal extension will
nevertheless need to be taken into account.
Article 14, paragraph 3, relates to the temporal dimensions of the breach of a particular category of
obligations, i.e. the obligation to prevent certain outcomes.
Article 15 ARSIWA deals with a further category of wrongful acts having a continuing character
and their extension in time: composite acts.
Ø Some of the most serious internationally wrongful acts are composite acts within the
meaning of Article 15: genocide, apartheid, crimes against humanity, systematic acts
of racial discrimination, etc.
Ø Less serious acts, like systematic discriminatory trade policies prohibited under trade
agreements, can also constitute composite acts.
In all these cases, single acts may be separately wrongful as such under another heading, but it is
their accumulation which gives rise to the composite act, the obligation breached being “defined in
terms of the cumulative character of the conduct, i.e. [...] the cumulative conduct constitutes the
essence of the wrongful act” (Report of the Commission to the General Assembly on the work of
53rd session, YbILC, 2001, Vol. 2, Part II, Art. 15, p. 63).
Ø For instance, individual acts of racial discrimination may be wrongful as such, but it is their
accumulation that may constitute apartheid.
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Ø Likewise, genocide is different in kind from racially of ethnically motivated killings that
remain isolated.
Circumstances precluding wrongfulness: breach without responsibility

- Six circumstances precluding wrongfulness
Articles 20 to 25 ARSIWA define six “circumstances precluding wrongfulness”, i.e. circumstances
that provide a shield against an otherwise well-founded claim that a wrongful act has occurred.
When any of those circumstances exist, the State conduct which is objectively not in conformity
with any of its international obligations will not give rise to responsibility. The international
obligation which has not been complied with is not terminated nor annulled by those circumstances.
Rather, each of those six circumstances provide for an excuse for the non-performance of
international obligations. Under those circumstances, international responsibility does not arise: the
wrongfulness of the conduct is only apparent and is precluded.
However, such excuse or justification is not absolute:
- It exists only as long as the circumstance in question subsists, so that compliance with the
obligation is owed when the “circumstance precluding wrongfulness no longer exists”
(Article 27 (a)).
- None of those circumstances preclude the wrongfulness of “any act of a State which is not
in conformity with an obligation arising under a peremptory norm of general international
law” (Article 26). In other words, a violation of an obligation arising under a jus cogens
norm cannot be excused or justified by any of those circumstances. Jus cogens obligations
are owed in all circumstances.
- Furthermore, the absence of any responsibility for the breach excused is without prejudice to
“[t]he question of compensation for any material loss caused by the act in question” (Article
27 (b)): the State invoking the precluding circumstance may nevertheless agree to pay
compensation for the material loss caused by its action, despite the fact that its unlawfulness
has been excused. Such payment would be made ex gratia since no responsibility is incurred
as a result of the circumstance.
- Article 25 ARSIWA
Article 25 starts by rejecting necessity as a legal justification for the non-performance of
international obligations, and then it opens a strict exception to that rejection if two conditions are
cumulatively met (paragraph 1, (a) and (b)). Even if those two conditions are met, paragraph 2
limits the application of necessity in certain circumstances.
Necessity is probably the most controversial circumstance precluding wrongfulness, because of the
dangers it represents for the integrity of international law.
The first two paragraphs of the ILC commentary on Article 25 read as follows:
“(1) The term “necessity” (état de nécessité) is used to denote those exceptional cases where the
only way a State can safeguard an essential interest threatened by a grave and imminent peril is, for
the time being, not to perform some other international obligation of lesser weight or urgency.
Under conditions narrowly defined in article 25, such a plea is recognized as a circumstance
precluding wrongfulness.
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(2) The plea of necessity is exceptional in a number of respects. Unlike consent (art. 20), self-
defence (art. 21) or countermeasures (art. 22), it is not dependent on the prior conduct of the injured
State. Unlike force majeure (art. 23), it does not involve conduct which is involuntary or coerced.
Unlike distress (art. 24), necessity consists not in danger to the lives of individuals in the charge of a
State official but in a grave danger either to the essential interests of the State or of the international
community as a whole. It arises where there is an irreconcilable conflict between an essential
interest on the one hand and an obligation of the State invoking necessity on the other. These special
features mean that necessity will only rarely be available to excuse non-performance of an
obligation and that it is subject to strict limitations to safeguard against possible abuse.” (Report of
the Commission to the General Assembly on the work of 53rd session, YbILC, 2001, Vol. 2, Part II,
Art. 25, p. 80)
In the Gabčíkovo-Nagymaros case, the ICJ considered that those strict conditions reflected
customary international law, but ruled that they were not met in the circumstances of the case:
“51. The Court considers [...] that the state of necessity is a ground recognized by customary
international law for precluding the wrongfulness of an act not in conformity with an international
obligation. It observes moreover that such ground for precluding wrongfulness can only be accepted
on an exceptional basis. The International Law Commission was of the same opinion when it
explained that it had opted for a negative form of words [...]. Thus, according to the Commission,
the state of necessity can only be invoked under certain strictly defined conditions which must be
cumulatively satisfied; and the State concerned is not the sole judge of whether those conditions
have been met.
52. In the present case, the following basic conditions [...] are relevant: it must have been
occasioned by an “essential interest” of the State which is the author of the act conflicting with one
of its international obligations; that interest must have been threatened by a “grave and imminent
peril”; the act being challenged must have been the “only means” of safeguarding that interest; that
act must not have “seriously impair[ed] an essential interest” of the State towards which the
obligation existed; and the State which is the author of that act must not have “contributed to the
occurrence of the state of necessity”. Those conditions reflect customary international law.” (ICJ,
Gabčíkovo-Nagymaros Project (Hungary/Slovakia), 25 Sept. 1997, ICJ Reports, paras. 51-52, pp.
40-41)
In 1967, a Liberian oil tanker, the Torrey Canyon, went aground on submerged rock off the coast
of Cornwall, outside the British territorial waters. The Cornish coastline was threatened by a large
oil spill. Having exhausted all other remedial means, the British government decided to bomb and
sink the ship in order to burn the remaining oil, so as to limit the coastal pollution. Even if the
British government did not specifically refer to necessity as a circumstance precluding the
wrongfulness of its decision to set the ship and its cargo ablaze, that incident offers one of the few
uncontroversial situations of necessity.
Responsibility without breach, accountability and collective responsibility

- Strict (absolute) liability regimes
Under customary international law, there is no responsibility in the absence of any internationally
wrongful act. It is however possible to create by treaty an obligation to make good the damage
resulting from certain activities, despite their conformity with international law. Those regimes are
usually referred to as “strict (or absolute) liability” regimes. They are always treaty-based and aim
to strike a balance between the need to encourage (new) activities that are dangerous, but
nevertheless considered desirable, and the need to afford protection to the victims of those
activities.
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The duty to make good the damage stems from the existence of the damage, no proof of any
malconduct being needed.
Ø Example of such regimes is, for instance, to be found in the Convention on International
Liability for Damage Caused by Space Objects, signed in London, Moscow and Washington
on 29 March 1972.
The Convention establishes a strict liability regime for any injury caused on the surface of
the Earth or to an aircraft fly by falling satellites and other space objects. Liability is owed
by the launching State or jointly by the launching States, as defined under the Convention.
- Accountability
The concept of responsibility under customary international law must furthermore be distinguished
from the notion of accountability.
Accountability is not a legal concept, but a moral and political notion. It refers to the need to hold
certain public authorities, most notably international organizations, accountable for their decisions
and actions. Mechanisms of accountability rely on increased requirements of transparency, public
debate and external scrutiny.
If accountability is a political notion, those requirements can nevertheless be established under legal
instruments and therefore duly regulated under the law.
- Responsibility of States and collective responsibility
Finally, and before turning to the rules on attribution, it is important to realize that the State is
considered as an abstract single entity for the purpose of the rules on international responsibility.
The State, as a single unity, is said to bear responsibility.
But by doing so, international law actually simplifies things: indeed, while the obligation is for the
State as an abstract entity, the actual contribution to that obligation will most often be concretely
borne by the citizens of the State through various domestic mechanisms (e.g. taxation).
International law stops at the attribution level and does not go deeper, as it were, within the State. In
other words, State responsibility hides the difficult moral question of collective responsibility for
wrongs committed on behalf of the nation. That question is avoided by international law, and all the
more so that the continued legal existence of States, coupled with the absence of any time limit on
claims or prescription period, allow for deferred settlements. However, political and moral
judgment will at some point be unavoidable because even the poorest country on the planet has an
unlimited capacity to pay if its reparation debt were to be fractioned over an unlimited period of
time.
III. ATTRIBUTION
The subjective element of the internationally wrongful act: attribution

The non-conformity of an action or omission with an international obligation is the objective
element of any internationally wrongful act.
In addition to such non-conformity, the wrongful act must be attributable to a State or to an
international organization for the international responsibility of any of those legal subjects to
exist. Attribution is the subjective element of the internationally wrongful act.
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- Action
Attribution is a legal operation: it is the operation by which the behaviour of human beings in the
real world is legally deemed to be the conduct of a subject of international law, i.e. a State or an
international organization. States and international organizations are indeed abstract legal entities.
Like corporations in domestic law, they do not physically act by themselves, but they act through
human beings whose behaviour is then legally attributed, imputed, to the abstract legal entity.
- Omission (failure to act)
Of course, when the internationally wrongful act is an omission (i.e. the absence of any action
instead of a positive act), it will be sufficient to identify the international subject who was under the
obligation to take a specific action and failed to do so.
In such a case, attribution as a legal operation will not really take place and will be reduced to
taking note of a wrongful failure to act by the subject owing the obligation. International
responsibility will be established by identifying the character of the obligation as an obligation to
act and the failure to act by the subject owing the obligation, without really addressing the
attribution of such wrongful failure. Attribution will be somehow implied and automatic.
- Rules on attribution to States
Those rules are really at play when actual conducts, rather than omissions, occurred.
The rules on attribution are customary rules of international law that are part of the secondary rules
on responsibility codified by the ILC. A careful study of the rules on attribution is not only needed
in order to understand what attribution is about, but it also helps us to understand more concretely
what States or international organizations are.
o Art. 4 ARSIWA: a State is responsible for the conduct of any of its organs
Article 4 ARSIWA recalls that “an organ includes any person or entity which has that status in
accordance with the internal law of the State” and that it does not matter “whether the organ
exercises legislative, executive, judicial or any other functions”. In other words, States are
internationally responsible for the conduct of their governments, but also for the conduct of their
legislature or of their courts and tribunals, despite the constitutional independence of the latter.
Ø For instance, in 2012, in a case between Germany and Italy that will be addressed later in
the course, the ICJ found the Italian Republic internationally responsible for judgments of
the Corte di Cassazione.
Moreover, under Article 4 ARSIWA, it does not matter whether the organ of the State is a high-
ranking official (e.g. a minister), or a low-ranking civil servant, or whether it is part of the central
government of the State or of a decentralized entity or even a municipality. The State can be held
responsible for the conduct of any of its organs, instrumentalities or officials which form part of its
organization, whether or not they have a separate legal personality under its internal law.
The basic rule on attribution of the conduct of State organs helps us to understand that, as a subject
of international law, the State is one single entity and it presents itself as a unity for the purpose of
international responsibility.
It is important to stress that when the State organ is a physical person, the State is responsible for
his or her conduct provided that he or she acted in his or her capacity as organ in the
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particular instance. This condition is not expressed by Article 4 but it is subsumed in the notion of
organ and it must be kept in mind. A civil servant is not organ of the State twenty-four hours a day,
three hundred and sixty-five days a year: sometimes, the civil servant is off-duty or on holidays.
He/she does not act then as an organ of the State, but as an individual and his or her action is
therefore not attributable to the State.
o Art. 5 ARSIWA: a State is responsible for the conduct of persons or entities that are
empowered under domestic law to exercise elements of governmental authority
Here again, those persons or entities must act in such a capacity in the particular instance.
This rule of attribution is intended to cover the situation of parastatal entities or of private
companies entrusted with governmental tasks (e.g. private security firms contracted to act as prison
guards or as immigration officials).
o Art. 6 ARSIWA: a foreign State is responsible for the conduct of organs that were
lent to it by another State
When one State lends some of its organs to another State, the conduct of the foreign organs is
attributed to the State at whose disposal they have been placed, provided they effectively acted in
the exercise of the elements of the governmental authority of the latter State.
o Art. 7 ARSIWA: ultra vires responsibility
A State may not escape its responsibility by claiming that its organ, or the person or entity
empowered to exercise some of its authority, has acted ultra vires, i.e. in excess of its authority or
in violation of specific instructions.
Ø For instance, if a police officer tortures a foreign inmate despite clear instructions to the
contrary, such wrongful act remains legally attributed to the State.
Unauthorized acts and misconducts by State officials are and remain acts of the State, even if higher
organs have disowned the wrongful conduct.
Any other solution would contradict the basic principle recalled in Article 3 according to which a
State may not rely on its internal law in order to avoid being found responsible.
But again, even if acting in an unauthorized way, it remains of paramount importance that the
organ, person or entity acted in an “official” capacity, with apparent authority, rather than in a
purely private capacity.
There is however one exception to the requirement that the organ of the State acts in such capacity
in the particular instance of the wrongful act. That exception is not to be found in the ILC Articles
on State responsibility. It relates to the members of the armed forces of a State when the State is
engaged in an international armed conflict. In such a situation, the State is of course responsible for
any misconduct of its soldiers acting as soldiers even when they have contravened to their
instructions. But the State is also responsible for any wrongful conduct of the members of its armed
forces, irrespective of the fact that those members acted in their capacity as organs of the State or
not. In time of war, in other words, the State is thus responsible for private acts of its soldiers
when they are off-duty, enjoying a military leave.
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Ø For instance, in time of war, the State is responsible for the conduct of off-duty soldiers
dressed as civilians who go to bars, have too many drinks and end up killing the local bar
tender in a fight.
This specific rule is provided for under Article 3 of the Hague Rules of 1907 and it is repeated in
Article 91 of the First Protocol of 1977, additional to the 1949 Geneva Conventions on the Laws
of War. This specific rule has been established in order for States to keep the discipline within their
armed forces and to protect foreign citizens.
Attribution of private acts (I + II)

States do not incur responsibility for the acts of their organs when they do not act in their capacity
as organs – except in the case of members of the armed forces in time of war. As a rule, individuals
do not act on behalf of States and, therefore, their behaviour is not attributable to any State.
- Private acts revealing a wrongful omission
Of course, the fact that individuals have acted in a certain way may reveal a wrongful omission by
the State.
Ø For instance, if a crowd attacks a foreign embassy and sets it ablaze, the host or receiving
State will not be responsible for the acts of the crowd as such. The acts of the crowd will not
be attributed to the host State, but such acts will reveal the failure of the State to fulfil its
obligation to protect the diplomatic premises, an obligation which is owed by the receiving
State to the sending State under Article 22 of the 1961 Vienna Convention on Diplomatic
Relations, and it is also a customary obligation.
Because of its failure to protect the embassy from the crowd, the receiving State could be
held responsible for the damage caused by the crowd, even if the crowd’s violence is not
considered as such as an act of that State.
- Art. 9 ARSIWA: absence or default of official authorities
This being said, there are situations where a State will directly bear international responsibility for
the conduct of certain individuals.
Article 9 ARSIWA envisages a situation which has notably happened in the last days of wars,
when a territory has been freed from foreign occupation but that the State administration has not yet
been able to re-establish its authority over the territory. In those circumstances, some individuals or
groups of individuals may locally take the initiative and may organize public services to the benefit
of the community – which is fine of course. But sometimes those individuals will take measures
that are much more questionable (e.g. ordering summary executions of foreigners in the name of
justice). Those individuals have not been asked and officially entrusted with such functions, but
they de facto act on behalf of the State, as if they were empowered to do so. If that is the case, what
those individuals do is attributable to the State.
This is what Article 9 provides for:
“The conduct of a person or group of persons shall be considered an act of a State under
international law if the person or group of persons is in fact exercising elements of the governmental
authority in the absence or default of the official authorities and in circumstances such as to call for
the exercise of those elements of authority.”
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- Art. 10 ARSIWA: attribution to the State of the conduct of an insurrectional movement

If the insurrectional movement fails to take control of the government, the wrongful conduct of the
members of the movement will not be attributable to the State. The State is fighting against the
movement. But the State will be responsible for the conduct, actions or omissions of its own organs.
However, if the insurrectional movement succeeds in its fight against the government and manages
to establish itself as the government of the State, the State will be responsible for the acts of the
former government, which is only normal. The State will also be responsible for the acts of the new
government once it becomes the government of the State, which is only normal also. But the State
will also be responsible for the acts of the insurrectional movement at the time it was not yet the
government of the State. The wrongful conduct of the insurrectional movement will be
retrospectively attributed to the State, provided that the insurrectional movement succeeds and
becomes the government of the State.
And likewise, if the insurrectional movement is a separatist movement and if it succeeds in
establishing a new State on the part of the territory of the pre-existing State, the mother State, the
new State will be responsible for the acts of the movement at the time it was still fighting for
independence. And at the time the State still did not yet exist.
- Art. 11 ARSIWA: acknowledgement and adoption of conduct
A State may always acknowledge and adopt the conduct of individuals as its own, and therefore be
responsible for it.
Ø Such a situation notably happened in 1979, during the Islamic revolution in Iran, after
Iranian students stormed the US embassy in Tehran and held the diplomatic and consular
staff hostage for over a year.
The case was decided by the ICJ at the request of the US. The Court found that Iran was not
responsible for the acts of the students as such at the time they stormed the embassy, but, as
mentioned earlier, that the students’ action revealed a wrongful failure by Iran to protect the
diplomatic mission.
But the Court took also note of the fact that, as time was passing by, the new Iranian
authorities were praising the acts of the students, were commending them as heroes of the
revolution and approving their action. The Supreme leader of the Iranian revolution,
Ayatollah Khomeini, went so far as issuing a decree in November 1979, stating that the
embassy was a centre of espionage and conspiracy and that the US diplomatic staff would
not be freed until the US acceded to the demands of Iran. Therefore, the Court considered
that, from the moment Iran acknowledged and adopted the students’ conduct as its own, the
students were acting on behalf of the government and their conduct was therefore
attributable to Iran.
As the Court concluded:
“The result of that policy was fundamentally to transform the legal nature of the situation created
by the occupation of the Embassy and the detention of its diplomatic and consular staff as hostages.
The approval given to these facts by the Ayatollah Khomeini and other organs of the Iranian State,
and the decision to perpetuate them, translated continuing occupation of the Embassy and detention
of the hostages into acts of that State.
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The militants, authors of the invasion and jailors of the hostages had now become agents of the
Iranian State for whose acts the State itself was internationally responsible.” (ICJ, United States
Diplomatic and Consular Staff in Tehran (United States of America v. Iran), 24 May 1980)
- Art. 8 ARSIWA: conduct directed or controlled by a State

The question is to know to what extent and on what basis can a State be held responsible for the
conduct of persons that it sponsors and helps abroad.
You may think at different situations where a government exerts influence abroad by supporting
local groups that are sometimes engaged in violent political action, or even in terrorism. Of course,
the mere fact of helping or funding those groups in a foreign country is usually constitutive of a
prohibited interference in the domestic affairs of another State or also of other wrongful acts, the
sponsoring State being responsible for its own conduct.
But the questions goes further: is it possible to consider that the wrongful acts that are materially
committed by the local group be considered, from a legal point of view, as attributable to the
sponsoring State? The answer to that question depends on the nature and the extent of the influence
of the sponsoring State over the group, or rather, to put it more precisely in the words of the ILC, it
depends on “the existence of a real link between the person or group performing the act and the
State machinery”.
o First situation: the group acts upon the instructions of the sponsoring State
In such a case, there is no doubt that the State is responsible for the wrongful acts committed by the
individuals which have been specifically instructed by it to act in a certain way. In such a case, the
individuals are undoubtedly acting on behalf of the State because of such instructions.
This is reflected in Article 8 ARSIWA:
“The conduct of a person or group of persons shall be considered an act of a State under
international law if the person or group of persons is in fact acting on the instructions of, or under
the direction or control of, that State in carrying out the conduct.”
o Second situation: it is impossible to prove that the group acts upon the instructions of
the sponsoring State
Most of the time, it will be impossible to prove such instructions because of the secret character of
the involvement of the foreign State.
Therefore, the question will arise whether the direction or control by the foreign State over the
individuals could result in their conduct being attributed to that State.
Article 8 also deals with such direction or control. However, the degree and nature of the control by
the State over the conduct of the individuals or group has been controversial.
Ø In the early 1980s, the Sandinista government of Nicaragua was viewed by the US
government as a dangerous communist regime in Central America. It was the time of the
cold war and, as a usual response then, the administration of president Reagan decided to
fund and to train an armed movement opposed to the government in Managua, that
movement being called the “contras”.
Nicaragua brought a case against the United States at the ICJ. In 1984, the Court ruled that it
had jurisdiction to hear the case and two years later, in 1986, the Court ruled on the merits
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and found the United States to be internationally responsible for several serious breaches of
international law. The ruling was a serious blow to the foreign policy of the US.
However, the Court rejected Nicaragua’s claim according to which the US should also be
held responsible for all the killings and the attacks by the contras in violation of
international humanitarian law. The Court found that the wrongful acts of the contras were
not attributable to the United States because Nicaragua had not established that the US “had
effective control of the military or paramilitary operations in the course of which the alleged
violations were committed”. The Court ruled that it was not sufficient that the US
administration was funding and training the contras for their conduct to be attributed to the
US. A general situation of dependence and support was not enough. Further proof was
needed: the proof that, in the various instances they acted, the contras were actually acting
on behalf of the US because the US had effective control over them when they acted, or
that the US directed their conduct. Discharging such a proof is of course a very difficult, if
not almost impossible task, due to the usual secrecy surrounding the involvement of the
foreign State (ICJ, Military and paramilitary activities in and against Nicaragua
(Nicaragua v. United States of America), 27 June 1986).
Ø A few years later, in 1999, Mr Tadic, a Bosnian Serb, was facing trial at the International
Criminal Tribunal for the former Yugoslavia. Some of the charges against him related to
certain war crimes that only exist in the context of an international armed conflict.
In order to justify that there had been such a conflict and that Mr Tadic had been rightly
charged with those crimes, the Tribunal considered that the acts of the Bosnian Serbs were
attributable to Federal Republic of Yugoslavia, later known as Serbia-and-Montenegro.,
concluding therefore that a war had indeed existed between the Federal Republic of
Yugoslavia and Bosnia-Herzegovina.
This path of reasoning was not absolutely necessary, but it was the way chosen by the
Tribunal, which allowed it to criticize the Nicaragua judgment of the ICJ. The Tribunal said
that the Federal Republic of Yugoslavia could be held responsible for the crimes committed
by the Bosnian Serbs because the government in Belgrade exercised overall control over the
Bosnian Serbs.
The Tribunal held that the mere financing and equipping was not enough to establish overall
control and that some participation of Serbia in the planning and supervision of the military
operations by the Bosnian Serbs was needed. But that there was no need to prove that Serbia
directed the Bosnian Serbs to commit certain crimes, nor that those crimes were carried out
under the effective control of Serbia.
It was sufficient, said the Tribunal, to establish that Serbia exercised overall control over
the Bosnian Serbs for Serbia to be responsible for their conduct (ICTY, Tadic, 15 July
1995).
Those clearly diverging views of the ICJ and of the ICTY on the legal criteria for attribution of
private acts to States fuelled the legal debate and scholars spoke about the “fragmentation” of
international law.
In 2001, when the ILC finalized the Articles on State Responsibility, it opted for a careful drafting
which became Article 8 and in which the nature or degree of control is not qualified.
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In 2007, in a case already mentioned in this course, the ICJ ruled on the responsibility of Serbia, the
State, for the genocide committed at Srebrenica by the Bosnian Serbs. Bosnia-Herzegovina claimed
that the acts of the Bosnian Serbs were attributable to Serbia, as the ICTY had ruled, but the Court
disagreed and rejected the overall control test put forward by the ICTY, upholding the effective
control test of the Nicaragua case.
Effective control upheld

“396. As noted above (paragraph 384), the Court must now determine whether the massacres at
Srebrenica were committed by persons who, though not having the status of organs of the
Respondent, nevertheless acted on its instructions or under its direction or control, as the Applicant
argues in the alternative; the Respondent denies that such was the case.
397. The Court must emphasize, at this stage in its reasoning, that the question just stated is not the
same as those dealt with thus far. It is obvious that it is different from the question whether the
persons who committed the acts of genocide had the status of organs of the Respondent under its
internal law; nor however, and despite some appearance to the contrary, is it the same as the
question whether those persons should be equated with State organs de facto, even though not
enjoying that status under internal law. The answer to the latter question depends, as previously
explained, on whether those persons were in a relationship of such complete dependence on the
State that they cannot be considered otherwise than as organs of the State, so that all their actions
performed in such capacity would be attributable to the State for purposes of international
responsibility. Having answered that question in the negative, the Court now addresses a completely
separate issue: whether, in the specific circumstances surrounding the events at Srebrenica the
perpetrators of genocide were acting on the Respondent’s instructions, or under its direction or
control. An affirmative answer to this question would in no way imply that the perpetrators should
be characterized as organs of the FRY, or equated with such organs. It would merely mean that the
FRY’s international responsibility would be incurred owing to the conduct of those of its own
organs which gave the instructions or exercised the control resulting in the commission of acts in
breach of its international obligations. In other words, it is no longer a question of ascertaining
whether the persons who directly committed the genocide were acting as organs of the FRY, or
could be equated with those organs — this question having already been answered in the negative.
What must be determined is whether FRY organs — incontestably having that status under the
FRY’s internal law — originated the genocide by issuing instructions to the perpetrators or
exercising direction or control, and whether, as a result, the conduct of organs of the Respondent,
having been the cause of the commission of acts in breach of its international obligations,
constituted a violation of those obligations.
398. On this subject the applicable rule, which is one of customary law of international
responsibility, is laid down in Article 8 of the ILC Articles on State Responsibility as follows:
‘Article 8 Conduct directed or controlled by a State
The conduct of a person or group of persons shall be considered an act of a State under international
law if the person or group of persons is in fact acting on the instructions of, or under the direction or
control of, that State in carrying out the conduct.’
399. This provision must be understood in the light of the Court’s jurisprudence on the subject,
particularly that of the 1986 Judgment in the case concerning Military and Paramilitary Activities
in and against Nicaragua (Nicaragua v. United States of America) referred to above (paragraph
391). In that Judgment the Court, as noted above, after having rejected the argument that the
contras were to be equated with organs of the United States because they were 'completely
dependent' on it, added that the responsibility of the Respondent could still arise if it were proved
that it had itself "directed or enforced the perpetration of the acts contrary to human rights and
humanitarian law alleged by the applicant State" (I.C.J. Reports 1986, p. 64, para. 115); this led to
the following significant conclusion:
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'For this conduct to give rise to legal responsibility of the United States, it would in principle have to
be proved that that State had effective control of the military or paramilitary operations in the
course of which the alleged violations were committed.' (Ibid., p. 65.)
400. The test thus formulated differs in two respects from the test — described above — to determine
whether a person or entity may be equated with a State organ even if not having that status under
internal law. First, in this context it is not necessary to show that the persons who performed the
acts alleged to have violated international law were in general in a relationship of 'complete
dependence' on the respondent State; it has to be proved that they acted in accordance with that
State’s instructions or under its 'effective control'. It must however be shown that this 'effective
control' was exercised, or that the State’s instructions were given, in respect of each operation in
which the alleged violations occurred, not generally in respect of the overall actions taken by the
persons or groups of persons having committed the violations.
401. The Applicant has, it is true, contended that the crime of genocide has a particular nature, in
that it may be composed of a considerable number of specific acts separate, to a greater or lesser
extent, in time and space. According to the Applicant, this particular nature would justify, among
other consequences, assessing the 'effective control' of the State allegedly responsible, not in
relation to each of these specific acts, but in relation to the whole body of operations carried out by
the direct perpetrators of the genocide. The Court is however of the view that the particular
characteristics of genocide do not justify the Court in departing from the criterion elaborated in the
Judgment in the case concerning Military and Paramilitary Activities in and against Nicaragua
(Nicaragua v. United States of America) (see paragraph 399 above). The rules for attributing
alleged internationally wrongful conduct to a State do not vary with the nature of the wrongful act
in question in the absence of a clearly expressed lex specialis. Genocide will be considered as
attributable to a State if and to the extent that the physical acts constitutive of genocide that have
been committed by organs or persons other than the State’s own agents were carried out, wholly or
in part, on the instructions or directions of the State, or under its effective control. This is the state
of customary international law, as reflected in the ILC Articles on State Responsibility.
402. The Court notes however that the Applicant has further questioned the validity of applying, in
the present case, the criterion adopted in the Military and Paramilitary Activities Judgment. It has
drawn attention to the Judgment of the ICTY Appeals Chamber in the Tadić case (IT-94-1-A,
Judgment, 15 July 1999). In that case the Chamber did not follow the jurisprudence of the Court in
the Military and Paramilitary Activities case: it held that the appropriate criterion, applicable in its
view both to the characterization of the armed conflict in Bosnia and Herzegovina as international,
and to imputing the acts committed by Bosnian Serbs to the FRY under the law of State
responsibility, was that of the “overall control” exercised over the Bosnian Serbs by the FRY; and
further that that criterion was satisfied in the case (on this point, ibid., para. 145). In other words,
the Appeals Chamber took the view that acts committed by Bosnian Serbs could give rise to
international responsibility of the FRY on the basis of the overall control exercised by the FRY over
the Republika Srpska and the VRS, without there being any need to prove that each operation during
which acts were committed in breach of international law was carried out on the FRY’s instructions,
or under its effective control.
403. The Court has given careful consideration to the Appeals Chamber’s reasoning in support of
the foregoing conclusion, but finds itself unable to subscribe to the Chamber’s view. First, the Court
observes that the ICTY was not called upon in the Tadić case, nor is it in general called upon, to
rule on questions of State responsibility, since its jurisdiction is criminal and extends over persons
only. Thus, in that Judgment the Tribunal addressed an issue which was not indispensable for the
exercise of its jurisdiction. As stated above, the Court attaches the utmost importance to the factual
and legal findings made by the ICTY in ruling on the criminal liability of the accused before it and,
in the present case, the Court takes fullest account of the ICTY’s trial and appellate judgments
dealing with the events underlying the dispute. The situation is not the same for positions adopted by
the ICTY on issues of general international law which do not lie within the specific purview of its
jurisdiction and, moreover, the resolution of which is not always necessary for deciding the criminal
cases before it.
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404. This is the case of the doctrine laid down in the Tadić Judgment. Insofar as the 'overall control'
test is employed to determine whether or not an armed conflict is international, which was the sole
question which the Appeals Chamber was called upon to decide, it may well be that the test is
applicable and suitable; the Court does not however think it appropriate to take a position on the
point in the present case, as there is no need to resolve it for purposes of the present Judgment. On
the other hand, the ICTY presented the 'overall control' test as equally applicable under the law of
State responsibility for the purpose of determining — as the Court is required to do in the present
case — when a State is responsible for acts committed by paramilitary units, armed forces which
are not among its official organs. In this context, the argument in favour of that test is unpersuasive.
405. It should first be observed that logic does not require the same test to be adopted in resolving
the two issues, which are very different in nature: the degree and nature of a State’s involvement in
an armed conflict on another State’s territory which is required for the conflict to be characterized
as international, can very well, and without logical inconsistency, differ from the degree and nature
of involvement required to give rise to that State’s responsibility for a specific act committed in the
course of the conflict.
406. It must next be noted that the 'overall control' test has the major drawback of broadening the
scope of State responsibility well beyond the fundamental principle governing the law of
international responsibility: a State is responsible only for its own conduct, that is to say the
conduct of persons acting, on whatever basis, on its behalf. That is true of acts carried out by its
official organs, and also by persons or entities which are not formally recognized as official organs
under internal law but which must nevertheless be equated with State organs because they are in a
relationship of complete dependence on the State. Apart from these cases, a State’s responsibility
can be incurred for acts committed by persons or groups of persons — neither State organs nor to
be equated with such organs — only if, assuming those acts to be internationally wrongful, they are
attributable to it under the rule of customary international law reflected in Article 8 cited above
(paragraph 398). This is so where an organ of the State gave the instructions or provided the
direction pursuant to which the perpetrators of the wrongful act acted or where it exercised effective
control over the action during which the wrong was committed. In this regard the “overall control”
test is unsuitable, for it stretches too far, almost to breaking point, the connection which must exist
between the conduct of a State’s organs and its international responsibility.
407. Thus it is on the basis of its settled jurisprudence that the Court will determine whether the
Respondent has incurred responsibility under the rule of customary international law set out in
Article 8 of the ILC Articles on State Responsibility.” (ICJ, Application of the Convention on the
Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Serbia and
Montenegro), 26 Feb. 2007, ICJ Reports 2007, p. 43, §§ 396-407)
Responsibility of a State in connection with the act of another State

In contrast with situations of attribution of conduct, Articles 16-19 ARSIWA deal with complex
cases where international responsibility is attributed to one State in connection with the act of
another State, i.e. the conduct attributed to that other State. There is no need to go too much into
details about this, but it is worth paying some attention to the rules reflected in those Articles.
- Art. 16 ARSIWA: aid or assistance in the commission of an internationally wrongful act
Article 16 deals with cases that could be labelled as cases of complicity (aiding and abetting): one
State aids or assists another State in the commission of an internationally wrongful act.
Article 16 states that the aiding or assisting State “is internationally responsible for doing so”, not
that the aiding or assisting State would be responsible for the conduct of the aided or assisted State.
In other words, Article 16 is not a secondary rule of attribution, but a primary rule of conduct:
aiding or assisting is, as such and by itself, an internationally wrongful act and it is to be attributed,
as a conduct, to the aiding or assisting State by application of the usual rules on attribution of
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conduct. The aiding or assisting State will be responsible for its own conduct, which is the fact of
aiding or assisting in the commission of an internationally wrongful act by another State – that latter
State being responsible for its own conduct.
Two conditions must be met:
- The State aids or assists another State “with knowledge of the circumstance of the
internationally wrongful act”; and
- The aiding or assisting State must itself be bound by the obligation breached by the aided or
assisted State.
Ø Examples of such situations can be found when one State authorizes another State to
use its territory in order to launch an illegal military operation against a neighbouring
State.
- Art. 17 ARSIWA: direction and control exercised over the commission of an internationally
wrongful act
A State which directs and controls another State in the commission of an internationally wrongful
act by the latter is internationally responsible for that act 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.
- Art. 18 ARSIWA: coercion of another State
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.
In contrast to Article 16, Articles 17 and 18 are secondary rules on attribution of responsibility.
In those cases of “direction and control” (Article 17) or “coercion” (Article 18), the responsibility
for the internationally wrongful act committed by the directed and controlled State, or by the
coerced State, will be attributed to the directing and controlling, or coercing, State. Responsibility
exists “for that act”, not “for doing so” as in Article 16.
Ø While coercion is probably really exceptional, situations of direction and control
might exist in cases where a State transfers prisoners to another State, the latter being
requested to question those prisoners by using prohibited interrogations techniques.
In those cases, the directed and controlled State, or the coerced State, will also bear responsibility
for its own conduct. So, two States could be responsible for the same internationally wrongful act:
the directed and controlled State, or the coerced State, will be responsible on the basis of the
attribution of conduct, while the directing and controlling State, or coercing State, will be
responsible on the basis of attribution of responsibility under Articles 17 or 18. Article 19
ARSIWA makes that clear.
- Art. 19 ARSIWA: effects of this chapter
This chapter is without prejudice to the international responsibility, under other provisions of these
articles, of the State which commits the act in question, or of any other State.
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Attribution to international organizations

When they are endowed with an international legal personality and are therefore legally distinct
from their member States, international organizations may also incur responsibility for their own
internationally wrongful acts.
The rules on the responsibility of international organizations are based on very similar principles to
those applicable to the responsibility of States and they have been also codified by the ILC. Most
notably, organizations are responsible for the conduct of their organs or agents acting in that
capacity. The ILC draft was endorsed by the General Assembly in a resolution adopted in 2011
which took note of the Articles on the Responsibility of International Organizations (ARIO).
We will only address one issue, which touches both on the responsibility of States and on the
responsibility of international organizations. On many occasions, international organizations cannot
perform their functions by themselves because they do not have enough staff of their own. Member
States will then put some of their organs at the disposal of the organization.
Ø This is notably the case of the many peace-keeping operations conducted by the
United Nations. The UN has no standing army of its own. It must therefore rely on
the contributions of member States that are putting some of their own troops at its
disposal.
In such a situation, who is legally responsible for the wrongful conduct of the peace-
keepers? The United Nations or the member State? Or both? The issue is far from
being theoretical.
Ø Take for instance the dramatic events in Srebrenica in July 1995. A Dutch battalion
of the UN peace-keeping operation was present in the surroundings when up to 8000
Muslim Bosnian men were slaughtered by the Bosnian Serbs.
If there had been a wrongful failure to prevent the genocide at Srebrenica, who is to
be blamed? Serbia, as we saw, but what about the United Nations or the Netherlands
who were also present?
And the attribution issue under the rules of international responsibility has an
immediate bearing on the possibility to bring a claim because if the UN is said to be
responsible, then the 1946 Convention on UN privileges and immunities prevents to
bring any claim against the UN in domestic courts.
While if the Netherlands is the rightful respondent in a civil claim, the Dutch courts
may hear the case.
Ø Another example: who is to bear responsibility, between the UN, France, Germany
or Norway for not having properly cleared unexploded ordnance on a hill in Kosovo
where local children went to play and died because of an explosion? Is it the UN
because KFOR is ultimately under the command of the Security Council, or is it any
of the contributing States to KFOR at the place of the incident?
Ø Or again: if the Nepalese troops present with the UN in Haiti in 2010 are indeed at
the origin of a cholera outbreak, who should be responsible for it? The UN or Nepal
who contributed troops to the UN mission?
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It is important to clearly understand that the situation of State organs put at the disposal of an
international organization is different from the situation of State organs that are fully integrated in
the organization.
- “Fully seconded” organs
When State organs are “fully seconded”, they are not to be considered as State organs anymore, but
as organs of the organization, and of the organization only.
Ø But this is rarely the case of peace-keeping troops: the soldiers from national contingents are
still members of their national armed forces, and the State continues to have disciplinary
powers and criminal jurisdiction over the members of the national contingents put at the
disposal of the UN, but at the same time those soldiers serve with the UN for a specific
mission. The UN has a commanding responsibility, but the soldiers are not fully seconded to
the UN.
- Organs put at the disposal of an IO
Article 7 ARIO deals with the issue of State organs put at the disposal of an international
organization.
Under that Article which is said to reflect the current status of international law, two conditions
must cumulatively be met for the wrongful conduct of the State organ to be attributed to the
organization:
1) The State organ must be put at the disposal of the organization, which means that it must
help the organization to fulfil its own functions; and
2) The organization must exercise effective control over that specific conduct.
In the absence of effective control by the organisation over the conduct of the State organ
put at its disposal, such conduct remains attributed to the State and the conduct is not of the
responsibility of the organization.
Contrary to what the European Court of Human Rights decided in May 2007 in the Behrami and
Saramati v. France, Germany and Norway case, the effective control test refers to an actual
operational control and it must be preferred to the “ultimate control” test used by the European
Court in those cases.
If the organization does not exercise effective control over the conduct of the State organ put at its
disposal, there is no need to ask whether the State itself exercised effective control over the conduct
of its organ. And this is because the organ is not fully seconded and is still an organ of the State, its
conduct is presumed to be the conduct of the State under the rules on attribution codified by
ARSIWA.
It is only if it is established that the organization exercised in fact effective control over that conduct
that it will be attributed to the organization, rather than to the State.
But the questions is: must this choice be so absolute? Must it be attribution either to the State by
default or to the organization in case of effective control over the wrongful conduct? Is it not
possible that the effective control exercised in particular circumstances by the organization does not
totally displace a national chain of command? And if that is the case, would it not be possible to
have a double attribution and two responsibilities?
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This is what the Dutch courts have decided in the Srebrenica case, but the matter remains
controversial and still in development.
Furthermore, the factual specificities of each case, the content of the agreements that may exist
between the lending States and the UN, together with the nature of the obligation allegedly
breached that caused the injury – all those elements will have a decisive bearing on the attribution
reasoning and the conclusion of any court.
IV. NEW OBLIGATIONS
The new obligations arising from international responsibility: cessation

Part two of the Articles on the Responsibility of States for Internationally Wrongful Acts is entitled
“Content of the international responsibility of a State”. It deals with the new obligations that are
owed by the State responsible for an internationally wrongful act and also, as we shall see, with
certain obligations imposed on the other States following serious violations of international law.
- Art. 29 ARSIWA: duty of performance
As stated in Article 29 ARSIWA, those new obligations are without prejudice to the duty of the
responsible State to continue to perform the primary obligation breached, if that obligation of
course is still binding on the State.
- Art. 30(a) ARSIWA: cessation
Article 30(a) ARSIWA deals with the secondary obligation of cessation, which is owed by the
responsible State if its wrongful act is continuing.
Cessation is probably the most immediate and important obligation stemming from any ongoing
internationally wrongful act, the obligation that diplomats will want to see achieved as soon as
possible and on which they will concentrate all their efforts.
Cessation of the ongoing wrongful act seems to be pretty close to simply resuming the obligation of
the primary obligation breached. Cessation of the breach and performance of the breached
obligation seem to be two sides of the same coin.
However, cessation has been identified in practice as a new secondary obligation, distinct from the
duty to perform the primary obligation, and which allows addressing the wrongful act as such.
Ø And for instance, in the advisory opinion about the Legal Consequences of the Construction
of a Wall in the Occupied Palestinian Territory, the ICJ said that Israel was under a duty to
cease the construction of the Wall and also, on the basis of cessation, to dismantle the parts
of the Wall that had already been built.
Dismantling the Wall is owed by Israel as a matter of cessation because the sheer presence
of the Wall – not only its ongoing construction – is a continuing violation of the right of the
Palestinian people to self-determination.
Respecting that right would however require much more than dismantling the Wall and if
Israel were to dismantle the Wall it built, this would of course be favorable to the right of
the Palestinian people to self-determination, but it would be far from equating with full
respect for that right.
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Hence, while Israel must, in general, respect the right of the Palestinian people to self-
determination, it must, more specifically, cease its wrongful act consisting in building and
managing the Wall.
Cessation, as a new obligation, stems from the internationally wrongful act and it is owed by the
responsible State when that act is continuing, when it is ongoing. There is no exception to the duty
to cease ongoing violations.
- Art. 30(b) ARSIWA: assurances and guarantees of non-repetition
Article 30(b) ARSIWA adds that the responsible State is under the obligation “to offer appropriate
assurances and guarantees of non-repetition, if circumstances so require”.
That obligation may exist even when the violation has ceased to exist, but it is far from being
automatically owed. Knowing when the circumstances require that such assurances and guarantees
of non-repetition must be offered is a matter of concrete assessment, the practice being rather scarce
in that regard.
Assurances and guarantees of non-repetition are often claimed but rarely awarded because
international courts and tribunals presume that States will act in good faith in the future and will
comply with their obligations.
The new obligations arising from international responsibility: reparation

The other substantial obligation triggered by the internationally wrongful act and owed by the
responsible State is, as Article 31, paragraph 1 of ARSIWA recalls, the “obligation to make full
reparation for the injury caused by the internationally wrongful act”.
The duty to make reparation for the injury caused by the violation is probably the most obvious
obligation under any regime of responsibility.
It is also well-established under international law, but it nevertheless deserves a few words of
explanation. It is indeed important to understand what is an injury, what making reparation means
and what are the forms by which reparation can be achieved.
- Injury
Article 31, paragraph 2 of ARSIWA says thay the “injury includes any damage, whether material or
moral, caused by the internationally wrongful act of a State”.
This is all good and well, but it is important to realize that a damage, an injury, is a legal construct,
despite its apparent materiality. It is a legal construct for two reasons:
1) First, intrinsically, the injury must concern an interest of the State which is protected under
international law.
The injury must be about a legally protected interest, a legitimate interest under the law.
Under international law States have basically three legally protected interests: States have a
legally protected interest to see their sovereignty respected; to see their property respected;
and, thirdly, to see that international law is respected in the person of their own nationals.
States suffer an injury themselves when the rights of their own nationals are breached and
States may claim reparation in such a case. Doing so is called “diplomatic protection” and
we’ll revert to it later in the course.
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The injury can be actual or future, in the sense that loss of profits can be claimed, provided
of course that it is duly established, as required under Article 36, paragraph 2 of ARSIWA.
2) Second, extrinsically, the damage is also a legal construct because it must be linked by a
causal link to the internationally wrongful act.
The damage must be caused by the violation, it must result from it. Causality under the law
is not the same as material causality in natural sciences. Legal causality results from a
human assessment.
Domestic laws operate under different theories of causality and because there are much
fewer cases in international law, the theories developed in international law are less refined
than in domestic law, but they all refer to the idea of a normal, foreseeable course of events,
of proximate cause, and sometimes a difference is made between direct and indirect damage.
But whatever the words used, they all express a judgment of reasonableness in the particular
circumstances of a case. Assessing causality is no different from judging how far can
humans be held accountable for their acts.
Ø Just one example to illustrate how causality under international law has very little do
to with material causality in nature.
After the Gulf War of 1991, the UNSC established the United Nations
Compensation Commission in order to allocate war reparations.
Iraq was responsible to make reparation for all the damages resulting from its illegal
invasion and occupation of Kuwait and an important share of its oil revenue was
allocated to a special fund for that purpose.
The UN Compensation Commission decided that the destructions that had been
materially caused by the victorious armies that fought against Iraq to liberate Kuwait
were to be compensated by Iraq. Those destructions were materially caused by the
American, the French, the British or other allied armies, not by the Iraqi army.
Nevertheless, those damages were legally considered to be the result of the illegal
invasion for which Iraq was responsible.
The causal assessment was as follows: had there been no illegal invasion, there
would have been no allied military reaction, and it was foreseeable for Iraq that such
reaction would take place. And of course, because those destructions were legitimate
acts of war, if Iraq did not have to pay for them, no one would bear responsibility
and the victims would never be compensated.
Ø After the Second World War, exactly the same causal assessment was made by
various conciliation commissions.
- Reparation
In a case between Germany and Poland about a Factory at Chorzów, the Permanent Court of
International Justice famously stated that “reparation must, as far as possible, wipe out all the
consequences of the illegal act and re-establish the situation which would, in all probability, have
existed if that act had not been committed”.
From this dictum, it is important to realize that reparation in not about re-establishing the situation
which had existed just before the violation occurred, reparation is not about the status quo ante.
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Rather, reparation is about re-establishing the situation which would, in all probability, have existed
now without the violation. Because reparation is about wiping out all the consequences of the
wrongful act, it must aim at establishing at the very moment when reparation is made, establishing
the situation which would, in all probability, have existed had the wrongful act not been committed.
How can this be achieved? What are the forms of reparation? Under customary international law,
and as recalled by Article 34 of ARSIWA, “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”. The three forms of reparation are thus restitution, compensation and
satisfaction.
Depending on the nature and extent of the injury, they may be owed singly or in combination in
order to achieve reparation, that is to establish the situation which in all likelihood would have
existed if the violation had not occured.
The forms of reparation

The obligation to make reparation can take different forms: restitution, compensation or
satisfaction.
- Art. 35: restitution
Restitution aims at re-establishing the situation which existed before the wrongful act. Restitution is
about coming back to the status quo ante.
But, depending on the nature and extent of the injury, this might not be enough in order to discharge
the obligation to make full reparation since reparation is not about re-establishing the situation that
existed just before the violation, but about establishing the situation that would, in all probability
and at the moment reparation is performed, have existed without the violation.
Ø For instance, and to take a domestic law example, handing back a stolen painting
might be adequate as a form of restitution, but may not be enough if the painting has
been damaged. Furthermore, if the painting attracted many tourists, reparation may
include the loss of profits resulting from the drop in museum visits, if that painting
was a highlight of its collection.
Restitution is the most natural form of reparation and should be preferred, but Article 35 puts limits
to it: restitution is not owed if it is materially impossible (e.g. the painting has been destroyed) or if
it would cost the debtor disproportionately more than compensation – the duty to make full
reparation must not be prejudicial to the responsible State if it takes the form of restitution.
- Art. 36: compensation
Despite being owed only “insofar as [the] damage is not made good by restitution”, compensation is
the form of reparation which is most frequently used in international practice. It is precisely because
loss of profits is a compensable head of damage that reparation is not simply about re-establishing
the status quo ante.
Compensation is the payment of a sum of money by the responsible State. Assessing the amount of
compensation, i.e. the damage, is often a difficult task and a matter of controversy between the
creditor and the debtor, all the more so that the “contribution to the injury by wilful or negligent
action or omission of the injured State or any person or entity in relation to whom reparation is
sought” (Article 39 ARSIWA) is to be taken into account when assessing what reparation requires.
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Loss experts are usually called to assess damages on the basis of available evidence and different
economic theories. And, as the ICJ has admitted when it had to assess the amount of compensation
owed by the DRC for having illegally detained and expelled Mr Diallo, a Guinean businessman
who had lived in Kinshasa for many years, some damages, notably non-material damages, can only
be assessed on the basis of equitable considerations (ICJ, Ahmadou Sadio Diallo (Republic of
Guinea v. Democratic Republic of the Congo), 19 June 2012, ICJ Reports, paras. 24, 33, 36).
This being said, it is important to note that:
- The domestic law concept of punitive damages is alien to international law.
- There is no rule of international law about the currency that needs to be used to make the
compensatory payment.
If the US dollar is most often used today, it is because it is easily accessible on the world
market and convertible, and also because assessing damages in US dollars is convenient as
most goods are traded in that currency.
But any other currency can be agreed between the parties. In choosing a currency, it is
important to keep two elements in mind: in order not to increase the reparation burden, it
must be easily accessible for the debtor. At the same time, it must be a currency sufficiently
stable and convertible in order for the payment to effectively compensate the damage and
not be a nominal amount.
- Interest on any principal sum due may be added in order to ensure full compensation (see
Article 38 ARSIWA).
- Art. 37: satisfaction
Satisfaction is a form of reparation which is specific to international law and which reflects its inter-
State nature: the injury or offence caused to State sovereignty, often called a “non-material injury”,
cannot be made good by restitution or compensation, so that a symbolic form of reparation, called
“satisfaction”, is owed by the responsible State.
As its name indicates, satisfaction is performed in order to “satisfy” the injured State, and this is
reflected in the concrete modalities of satisfaction: acknowledgement of the breach, expression of
regret, formal apology or any another appropriate modality, provided that it is not out of proportion
to the injury nor humiliating to the responsible State.
In many disputes, the injured State is not so much interested in receiving compensation. Rather, the
injured State wants that the violation of its rights to be officially established. Acknowledgement of
the breach is often made by the international court or tribunal seized of the dispute, the finding of
such breach being said to “constitute a form of satisfaction which will make good the moral injury
complained of” (see ICJ, Arrest Warrant of 11 April 2000 (Democratic Republic of the Congo v.
Belgium), 14 Feb. 2002, ICJ Reports, p. 31, para. 75).
The official expression of regret by the responsible State, or even a formal apology by that State,
eventually made public through different channels, are other usual forms of satisfaction. The
adequacy of each modality depends on the circumstances of the case.
Ø In the 19th and early 20th century, satisfaction took sometimes the form of a platoon
of the army of the responsible State saluting the flag of the victim State. This
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modality is not used anymore and it could well be considered today as unnecessarily
humiliating.
- Repealing domestic acts
For the responsible State, the obligation to make full reparation may also entail the obligation to
repeal or cancel domestic acts, by means of its own choosing.
Ø In the Arrest Warrant case, the ICJ declared that Belgium violated the rights of the
Democratic Republic of Congo by delivering an arrest warrant against the acting
foreign affairs minister of the DRC.
As recalled above, the Court considered this finding to be an adequate form of
satisfaction. But the DRC also requested that Belgium be ordered to cancel the arrest
warrant. Belgium rejected this claim, arguing that Mr Yerodia was not foreign affairs
minister anymore, that he had no other official function at the time of the ICJ
proceedings on the merits and that, as a result, any internationally wrongful act had
ceased to exist.
Upholding the DRC’s argument, the Court disagreed and ordered Belgium to cancel
the arrest warrant by the means of its own choosing. The decision of the Court is
entirely based on what making reparation means, i.e. establishing the situation which
would, in all probability, have existed if [the illegal act] had not been committed
(ICJ, Arrest Warrant of 11 April 2000 (Democratic Republic of the Congo v.
Belgium), 14 Feb. 2002, ICJ Reports, pp. 31- 32, para. 76).
Ø That outcome can be compared with the advisory opinion delivered by the ICJ about
the Legal Consequences of the Construction of a Wall in the Occupied Palestinian
Territory.
In that opinion, the Court considered that Israel had, notably, the obligation to stop
the construction of the Wall, to dismantle the parts of the Wall already built and ‘to
repeal or render ineffective forthwith all legislative and regulatory acts’ relating to
the construction of the Wall and the establishment of its associated régime (ICJ,
Legal Consequences of the Construction of a Wall in the Occupied Palestinian
Territory, advisory opinion, 9 July 2004, ICJ Reports, para. 163, 3 (b), p. 201).
All those obligations, including the obligation affecting domestic Israeli acts, are
derived from the obligation to terminate the ongoing violations for which Israel
incurred responsibility.
In contrast, in the Arrest Warrant case, and because Belgium’s wrongful act had
come to an end, reparation, rather than cessation, was the basis for the duty to repeal
a domestic act.
The right of individuals to reparation

Are individuals entitled, under international law (rather than under domestic law), to claim
reparation for the injuries they suffered as a result of a violation of international obligations that
exist to their benefit (obligations under human rights or humanitarian law treaties)? Do individuals
have a right to reparation under international law?
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Traditionally, the answer to that question has been negative: international responsibility was said
to give rise to inter-State relations only and the reparation of injuries suffered by individuals was
considered to be an injury of their national State that could be claimed through diplomatic
protection (cf. infra).
However, international law has most probably evolved in that regard. The Articles on the
Responsibility of States for Internationally Wrongful Act do not decide on the matter but are
explicitly “without prejudice to any right, arising from the international responsibility of a State,
which may accrue directly to any person or entity other than a State” (Article 33, paragraph 2,
ARISWA).
In its advisory opinion about the Legal Consequences of the Construction of a Wall in the Occupied
Palestinian Territory, the ICJ held:
“152. Moreover, given that the construction of the wall in the Occupied Palestinian Territory has,
inter alia, entailed the requisition and destruction of homes, businesses and agricultural holdings,
the Court finds further that Israel has the obligation to make reparation for the damage caused to
all the natural or legal persons concerned. The Court would recall that the essential forms of
reparation in customary law were laid down by the Permanent Court of International Justice in the
following terms:
"The essential principle contained in the actual notion of an illegal act - a principle which seems to
be established by international practice and in particular by the decisions of arbitral tribunals - is
that reparation must, as far as possible, wipe out all the consequences of the illegal act and
reestablish the situation which would, in all probability, have existed if that act had not been
committed. Restitution in kind, or, if this is not possible, payment of a sum corresponding to the
value which a restitution in kind would bear; the award, if need be, of damages for loss sustained
which would not be covered by restitution in kind or payment in place of it - such are the principles
which should serve to determine the amount of compensation due for an act contrary to
international law." (Factory at Chorzow, Merits, Judgment, N°13, 1928, PCIJ, Series A, N°17, p.
47)
153. Israel is accordingly under an obligation to return the land, orchards, olive groves and other
immovable property seized from any natural or legal person for purposes of construction of the wall
in the Occupied Palestinian Territory. In the event that such restitution should prove to be
materially impossible, Israel has an obligation to compensate the persons in question for the
damage suffered. The Court considers that Israel also has an obligation to compensate, in
accordance with the applicable rules of international law, all natural or legal persons having
suffered any form of material damage as a result of the wall's construction." (ICJ, Legal
Consequences of the Construction of a Wall in the Occupied Palestinian Territory, advisory
opinion, 9 July 2004, ICJ Reports, p. 198, paras. 152-153)
The Court referred to the Chorzów finding and then applied it to the direct benefit of “all natural
and legal persons having suffered any form of material damage”.
Furthermore, the UN General Assembly has adopted in 2005 a set of Basic Principles and
Guidelines on the Right to a Remedy and Reparation for Victims of Gross Violations of
International Human Rights Law and Serious Violations of International Humanitarian Law
(A/RES/60/147) which give flesh to the concept of the right to redress, both under domestic law
and under international law. However, the resolution is not declaratory of customary international
law in all its aspects and essentially incites States to offer certain redress mechanisms to
individuals.
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Serious breaches of obligations under jus cogens norms

The obligations of cessation and reparation are not differently owed by the responsible State when
the internationally wrongful act is a serious breach of an obligation under a peremptory norm of
general international law. This may sound strange, but there is actually no reason to require more in
terms of cessation or reparation when the illegality is egregious.
Cessation requires that the ongoing wrongful act be terminated. And reparation requires full
reparation, nothing less but nothing more.
However, would it not make sense that some specific additional obligations arise as a result of
serious violations of international law, in particular serious breaches of obligations that are owed
under jus cogens norms?
In 1979, at the suggestion of Roberto Ago, the International Law Commission made the distinction
between “crimes” of international law and “delicts”. The distinction was said to reflect the
normative hierarchy between jus cogens norms and the rest of international law. The word “crime”
was not much appreciated by States and was replaced in the final draft of the ILC by the concept of
“Serious breaches of obligations under peremptory norms of general international law”.
According to Article 40, paragraph 2, ARSIWA, the breach of obligations under jus cogens
norms is said to be serious “if it involves a gross or systematic failure by the responsible State to
fulfil the obligation”.
Article 41 ARSIWA identifies certain “particular consequences” of such serious breaches.
However, those consequences do not constitute any new secondary obligations owed by the
responsible State. Rather, those consequences are primary obligations owed by all the other States
when such serious breach occurs.
- Under Article 41, paragraph 1, “States shall cooperate to bring to an end through lawful
means any serious breach” of a jus cogens obligation.
This is clearly an obligation of conduct, a “best efforts” obligation, not an obligation of
result.
- While under Article 41, paragraph 2, “No State shall recognize as lawful a situation created
by a serious breach [...], nor render aid or assistance in maintaining that situation”.
We are already familiar with those obligations not to recognize and not to render aid or
assistance, and we’ve already come across those obligations. Those are prohibitions that are
best understood as obligations of result.
It is not surprising that serious breaches of the most fundamental norms of international law that
reflect common core values of the international community of States require certain reactions from
all the other States. It is through those reactions that the obligations under jus cogens norms survive,
despite being breached.
V. INVOKING RESPONSIBILITY
Part Three of the Articles on the Responsibility of States for Internationally Wrongful Acts
addresses the implementation of such responsibility. It is divided in two chapters, the first dealing
with the invocation of the responsibility of a State, and the second dealing with countermeasures as
a way to implement such responsibility. Part Three is probably the most conceptual part of the
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codification of State responsibility. It is also in that part that some of the most controversial issues
are hidden, when it comes to countermeasures.
Let’s take the Articles as they stand and address in turn, as they do, the invocation of the
responsibility and, later, countermeasures. As we will see, the two are intimately intertwined and
linked.
As far as the invocation of responsibility is concerned, the summa divisio introduced by the Articles
is between what is called, in Article 42, the invocation of responsibility by an “injured State” and
what is called in Article 48 the invocation of responsibility by “any State other than an injured
State”. This distinction intends to address a rather basic issue: which State has the legitimate
interest to trigger the rules on international responsibility?
Responsibility invoked by the injured State

Under Article 42, the “injured State” is defined as follows:
“A State is entitled as an injured State to invoke the responsibility of another State if the obligation
breached is owed to:
(a) That State individually; or
(b) A group of States including that State, or the international community as a whole, and the breach
of the obligation:
(i) Specially affects that State; or
(ii) Is of such a character as radically to change the position of all the other States to which the
obligation is owed with respect to the further performance of the obligation.”
This is a fairly conceptual definition which requires some explanation, even if the underlying issue
is fairly straightforward. And it is to identify which State can lawfully claim to be the victim of an
internationally wrongful act, so as to officially require by all available legal means that the State
responsible for the breach performs in its favour the new secondary obligations of cessation,
reparation and eventually assurances and guarantees of non-repetition. In order to identify the
injured or victim State, the central issue is to determine to whom the obligation breached is owed.
Article 42 distinguishes between three possible cases.
1) The first case is the easiest to understand: it is when the obligation is owed to the injured
State individually, which means that the injured State has an individual right to the
performance of the obligation breached.
This is notably the case of obligations under a bilateral treaty, but this can also be the case
under a multilateral treaty or a customary international law rule: for instance, the
obligation under Article 22 of the Vienna Convention on Diplomatic Relations (to protect
the diplomatic mission) is an obligation that each receiving State owes individually to each
foreign State having a mission on its territory. And the same is true for instance for
customary obligations relating to the immunity of States that we will be studying later in the
course.
Likewise, international obligations stemming from unilateral undertakings may be owed
individually to States.
2) The second and third cases identified by Article 42 is when the obligation breached is owed
to “a group of States including that State, or the international community as a whole”. The
obligations that are here at stake can be owed to a group of States under a multilateral
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treaty or to the international community as a whole under a customary rule of

international law.
The obligations here at stake are called “collective obligations” in the sense that the
performance of those obligations is not owed to one State in particular, but to a collectivity,
a group of States or the international community as a whole.
When the obligation is owed to the international community as a whole under a rule of
customary international law, the obligation is said to be erga omnes. The concept of
obligation erga omnes was introduced by the ICJ in the 1970 Barcelona Traction case, the
Court having famously drew what it called “an essential distinction” between obligations
owed to particular States and those owed towards the international community as a whole.
We shall come back to the notion of erga omnes obligations when speaking about States
other than the injured States because, as the Court said in the Barcelona Traction case, “all
States can be held to have a legal interest in their protection” because of the importance of
the rights involved, the collective interest. Examples of those obligations are human rights
obligations, or obligations to prevent the pollution of a specific environment (e.g. the seas).
However, the violation of those collective obligations only injures a particular State if some
additional requirements are met. Article 42, (b) (i) refers to the case where the breach of the
collective obligation, which is thus an obligation not individually owed to any specific State,
“specially affects” a particular State. In such a case, that specially affected State will be
considered as the injured State. The concept of being “specially affected” is taken from
Article 60 of the Vienna Convention on the Law of Treaties which relates to the exceptio
non adimpleti contractus. It means that the breach of the collective obligation must affect a
State in a way which distinguishes it from the generality of the other States to which the
obligation is owed.
Ø For instance, if a State party to the 1984 Convention against Torture engages in
torturing the national of another State party, that other State party will be considered
as specially affected and therefore injured.
Ø If an obligation to prevent the pollution of the sea is breached and the pollution
reaches the shores of a specific State, that State will be considered as specially
affected and therefore injured.
Under Article 42, (b) (ii), the other possibility for being considered as an injured State when
a collective obligation has been breached is when the breach “is of such a character as
radically to change the position of all the other States to which the obligation is owed with
respect to the further performance of the obligation”. By this, Article 42 refers to a specific
category of collective obligations called “interdependent” obligations.
Ø They are to be found in disarmament treaties, nuclear-free zones treaties, or treaties
establishing specific regimes like the 1959 Antartic Treaty.
In those cases, the performance of each party is effectively conditioned upon the
performance of each of the other parties and actually it requires such performance by others.
Those obligations are also mentioned under Article 60 of the Vienna Convention on the Law
of Treaties and their breach may trigger the right to terminate, to suspend or to withdraw
from the treaty. But States may be more interested in keeping the treaty and in having the
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legal relationship restored by claiming cessation and reparation. That is why Article 42
considers that when such interdependent obligation is breached, every other State to which
the obligation is owed will per se be considered as affected, and therefore injured.
How to invoke responsibility?
Articles 43-47 ARSIWA refer to some procedural and substantive rules relating to the presentation
of claims by the injured State.
- Art. 43: notice
The customary character of this procedural requirement of notification is doubtful, even if it
reflects a common sense approach: invoking the responsibility should translate concretely into a
claim, and the more explicit the claim is, the better.
The injured State will usually use diplomatic channels to give its notice to the allegedly responsible
State. On the basis of such notified claim, exchanges between the two States will take place. The
parties may find an agreed settlement and eventually conclude a treaty for that purpose. Or they will
fail to find such agreed settlement: the notified State may categorically deny any wrongdoing or,
even if it admits being responsible, it will disagree on the amount of compensation claimed. In
those latter cases, a dispute will arise between the two States and it settlement will have to be
pursued through the means that will be studied during Week 7. As recalled below, the injured State
will also be entitled to put pressure on the responsible State by resorting to countermeasures.
- Art. 44: admissibility of claims
Article 44 refers to two customary requirements relating to the admissibility of claims when the
injured State exercises diplomatic protection. Diplomatic protection has been defined by
the Permanent Court of International Justice as follows:
"It is an elementary principle of international law that a State is entitled to protect its subjects, when
injured by acts contrary to international law committed by another State, from whom they have been
unable to obtain satisfaction through the ordinary channels. By taking up the case of one of its
subjects and by resorting to diplomatic action or international judicial proceedings on his behalf, a
State is in reality asserting its own rights – its right to ensure in the person of its subjects, respects
for the rules of international law" (PCIJ, Mavrommatis Palestine concession (Greece c. United
Kingdom), 30 August 1924, series A, n°2, p. 12)
Diplomatic protection is a customary mechanism of international law. It is based on the fiction,

expressed by the PCIJ, according to which the injury to a national is an injury to the State itself.
However, as stated by the ILC in its Commentary to the Draft Articles on Diplomatic
Protection that were later adopted by the UN General Assembly (A/RES/62/67, 6 Dec. 2007), such
fiction is “a means to an end, the end being the protection of the rights of an injured national” (ILC
Commentary to Article 1 of the Draft Articles on Diplomatic Protection, YbILC, 2006, vol. II, Part
Two, Article 1, para. 4).
Being the right of the State, diplomatic protection may be exercised at the discretion of the State,
the injured national having no entitlement under international law to see its claim being endorsed by
its government. Furthermore, any renunciation by the national to the diplomatic protection of its
State has no effect on the right of the State to claim.
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However, the exercise of such right by the State is conditioned by two requirements recalled under
Article 44:
1) Diplomatic protection can only be exercised in favour of the nationals of the State;
2) Provided that they have unsuccessfully exhausted available and effective local remedies in
the responsible State (residual remedy).
Abundant case-law exists about those requirements, and they are also dealt with under the ILC
Articles on Diplomatic Protection. For the purpose of international responsibility, those
requirements relate to the admissibility of the claim presented by the injured State: the claim may
legitimately be turned down by the notified State if those conditions are not met, because the
injured State was not (or not yet) entitled to invoke the responsibility of the allegedly responsible
State.
The development of international human rights protection (HR courts), together with the
development of bilateral investment treaties (investment arbitration), have limited the need for
individuals or corporations to turn to their national authorities when they are victims of wrongful
acts abroad.
- Art. 45: loss of the right to invoke responsibility
Article 45 refers to two situations in which the conduct of the injured State has the effect of
terminating the right to invoke the responsibility of a State.
1) The first situation occurs when the injured State has “validly waived the claim”.
Consent by the injured State to the wrongful act itself or to its consequences in terms of
responsibility has the effect of limiting (because the waiver can be partial) or terminating the
right to invoke responsibility. The waiver must be validly expressed by the injured State,
which requires that it be freely given by a competent authority to do so. Furthermore, the
waiver must be clear and unequivocal: waiving rights cannot be presumed.
2) In the absence of a waiver, the injured State may nevertheless “be considered as having, by
reason of its conduct, validly acquiesced in the lapse of the claim”.
Acquiescence cannot be automatically deduced from the delay in presenting the claim. But
the lapse of time may be an element to take into account to establish acquiescence, together
with all the circumstances, including the serious disadvantage for the respondent State of
any late claim.
- Art. 46: plurality of injured States
Where several States are injured by the same internationally wrongful act, each injured State may
separately invoke the responsibility of the State which has committed the internationally wrongful
act.
It is not unusual that the same internationally wrongful act injures several States, within the
meaning of article 42.
Ø For instance, one State may invade the territory of two of its neighbours. In such a
case, each injured State is entitled to invoke the responsibility of the wrongful
invader.
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International law does not require that they present a joint claim to the responsible State: the
injured States may act separately, each assessing for itself when and what to claim. The injured
States are however not prohibited from presenting a joint claim.
- Art. 47: plurality of responsible States
Situations in which a plurality of States are responsible for the same internationally wrongful act are
not frequent, but they may occur, notably in the situations envisaged under Article 17 (direction and
control) and Article 18 (coercion).
Also, several States may be responsible for the same internationally wrongful act when a common
organ (e.g. a joint river commission which does not enjoy separate legal personality) acts on their
behalf. When several States bear responsibility for the same internationally wrongful act, the
injured State(s) may invoke the responsibility of each of the responsible State, claiming full
reparation to anyone of them. Of course, as stated in paragraph 2, double recovery is prohibited,
while the responsible State making full reparation should be able to act against the other responsible
States to claim their respective share of compensation, on the basis of causal apportionment.
o Controversy: co-perpetration
There is some controversy about situations in which several States breach the same international
obligation at the same time. Those are situations of co-perpetration (e.g. two States wage a war of
aggression together). Are those situations to be considered as situations in which States are
responsible for “the same” internationally wrongful act or as situations in which States are each
responsible for similar, but nevertheless distinct, internationally wrongful acts?
The latter view should be preferred, so that each State will bear responsibility for its own act and
will owe reparation for the injury resulting from its own act. The basic principle of international law
remains indeed that each State is responsible for its own conduct and that situations of joint
responsibility remain exceptional.
Responsibility invoked by a State other than the injured State

As we have seen, the injured State is entitled to invoke the responsibility of a State if the conditions
set out in Article 42 are met. The injured State can then claim from the responsible State cessation
of the ongoing internationally wrongful act, reparation for the injury resulting from the breach, and,
if circumstances so require, assurances and guarantees of non-repetition. Furthermore, as we shall
see later in this lesson, the injured State will be entitled to take countermeasures against the
responsible State in order to put pressure on that State and obtain from it that it meets its new
secondary obligations arising from international responsibility.
However, the responsibility of a State may also be invoked by any State other than the injured State
when a collective interest is at stake. This is envisaged under Article 48 of the Articles on State
Responsibility.
Again, the key element is to determine to whom the obligation breached is owed. Article 48
envisages two different possibilities. Each time, the invocation of responsibility by non-injured
States is possible because a collective interest is at stake. Non-injured State will be entitled to come
to the rescue of that collective interest by invoking the responsibility of the State concerned. The
two possibilities envisaged under Article 48, paragraph 1, are as follows:
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(a) The obligation breached is owed to a group of States including that State, and is established
for the protection of a collective interest of that group; or
(b) The obligation breached is owed to the international community as a whole.
- Obligations erga omnes partes
The obligations envisaged under Article 48, paragraph 1, (a) must be owed to a group of States
and must, moreover, be established for the protection of a collective interest of that group. Those
obligations are usually established under multilateral treaties, but they may also exist under
customary international law. Those obligations are called obligations erga omnes partes.
Ø Example of such obligation can be found in the case between Belgium and Senegal
about the obligation to prosecute or extradite Hissène Habré, the former head of
State of Chad present in Senegal.
In that case, the ICJ found that such obligation under the 1984 Convention against
Torture was an erga omnes partes obligation.
- Obligations erga omnes
The obligations envisaged under Article 48, paragraph 1, (b) must be owed to the international
community as a whole and are of a customary nature. They are called obligations erga omnes. The
concept of obligation erga omnes was introduced by the ICJ in the Barcelona Traction case (cf.
supra). In that case, the Court said that “all States can be held to have a legal interest in their
protection” because again of the importance of the rights involved. The Court gave examples of
such obligations and it referred to “the outlawing of acts of aggression, and of genocide, as also [...]
the principles and rules concerning the basic rights of the human person, including protection from
slavery and racial discrimination”. Erga omnes obligations are thus obligations that are owed by all
States to every other State, to the international community as a whole.
- Common principles
When such erga omnes partes or erga omnes obligations are breached, any of the States to which
the obligation is owed is entitled to invoke the responsibility of the State for the breach of such
obligation, because again of the collective interest it protects. However, and as stated under Article
48, paragraph 2, the States other than the injured State are entitled to invoke the responsibility for
specific purposes. Indeed, those other States may claim from the responsible State:
(a) Cessation of the internationally wrongful act, and [eventually] assurances and guarantees of
non- repetition [...]; and
(b) Performance of the obligation of reparation [...], in the interest of the injured State or of the
beneficiaries of the obligation breached.
So, the invocation of responsibility by the other States than the injured State serves a double
purpose which is never selfish nor purely in the interest of the non-injured State invoking such
responsibility: the return to legality through cessation of the ongoing wrongful act, and eventually
assurances and guarantees of non-repetition.
This is in the interest of the group of States or of the international community as a whole and the
reparation of the injury resulting from the wrongful act, but this is in the interest of the injured
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State, or of the beneficiaries of the obligation breached, which could be individuals. It is not in the
interest of the other State than the injured State.
- Limitations
Article 48, paragraph 3, limits the possibility to invoke the responsibility of a State by non-injured
States by declaring that the requirements under Article 43 (notice of the claim), Article 44
(admissibility) and Article 45 (loss of the right to invoke responsibility) also apply to the invocation
of responsibility by non-injured States.
Obligations erga omnes (partes)

While the notions of jus cogens (see Week 4, Validity of Treaties) and erga omnes are close, they
should not be confused with each other.
- Similarities
In both cases, essential collective interests of the international community as a whole are at stake.
- Differences
Jus cogens relates to the character of norms, which are said to be peremptory, while erga omnes
relates to the effect of obligations in light of the collectivity to which they are owed.
While every jus cogens norm contains erga omnes obligations, the opposite is not true: some erga
omnes obligations may be owned under norms that are not peremptory and that can therefore be
derogated from by mutual agreement.
Furthermore, some erga omnes obligations are not owed under peremptory customary norms, but
under multilateral treaties, and are therefore obligations erga omnes partes. The concept of
obligations erga omnes has been clarified by the Institute of International Law (Institut de droit
international – see Week 3) in a Resolution adopted in 2005, in Krakow. Please read it carefully
(cf. Reading Material).
Article 3 of the Krakow Resolution can be illustrated by the dispute between Belgium and Senegal
about the obligation to prosecute or extradite Hissène Habré, the former head of State of Chad. In
that case, the ICJ held:
“68. As stated in its Preamble, the object and purpose of the [1984] Convention [against torture] is
'to make more effective the struggle against torture . . . throughout the world'. The States parties to
the Convention have a common interest to ensure, in view of their shared values, that acts of torture
are prevented and that, if they occur, their authors do not enjoy impunity. The obligations of a State
party to conduct a preliminary inquiry into the facts and to submit the case to its competent
authorities for prosecution are triggered by the presence of the alleged offender in its territory,
regardless of the nationality of the offender or the victims, or of the place where the alleged offences
occurred. All the other States parties have a common interest in compliance with these obligations
by the State in whose territory the alleged offender is present. That common interest implies that the
obligations in question are owed by any State party to all the other States parties to the Convention.
All the States parties 'have a legal interest' in the protection of the rights involved (Barcelona
Traction, Light and Power Company, Limited (Belgium v. Spain), Second Phase, Judgment, I.C.J.
Reports 1970, p. 32, para. 33). These obligations may be defined as 'obligations erga omnes partes'
in the sense that each State party has an interest in compliance with them in any given case. In this
respect, the relevant provisions of the Convention against Torture are similar to those of the
Convention on the Prevention and Punishment of the Crime of Genocide, with regard to which the
Court observed that
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'In such a convention the contracting States do not have any interests of their own ; they merely
have, one and all, a common interest, namely, the accomplishment of those high purposes which are
the raison d’être of the Convention.' (Reservations to the Convention on the Prevention and
Punishment of the Crime of Genocide, Advisory Opinion, I.C.J. Reports 1951, p. 23.)
69. The common interest in compliance with the relevant obligations under the Convention against
Torture implies the entitlement of each State party to the Convention to make a claim concerning the
cessation of an alleged breach by another State party. If a special interest were required for that
purpose, in many cases no State would be in the position to make such a claim. It follows that any
State party to the Convention may invoke the responsibility of another State party with a view to
ascertaining the alleged failure to comply with its obligations erga omnes partes, such as those
under Article 6, paragraph 2, and Article 7, paragraph 1, of the Convention, and to bring that
failure to an end.
70. For these reasons, the Court concludes that Belgium, as a State party to the Convention against
Torture, has standing to invoke the responsibility of Senegal for the alleged breaches of its
obligations under Article 6, paragraph 2, and Article 7, paragraph 1, of the Convention in the
present proceedings. Therefore, the claims of Belgium based on these provisions are admissible. As
a consequence, there is no need for the Court to pronounce on whether Belgium also has a special
interest with respect to Senegal’s compliance with the relevant provisions of the Convention in
the case of Mr. Habré.” (ICJ, Questions relating to the Obligation to Prosecute or Extradite
(Belgium v. Senegal), 20 July 2012, ICJ Reports, pp. 449-450, paras. 68-70)
It should be noted that the right to invoke the responsibility of a State is simply the right to present a
valid claim to the responsible State, but it does not amount to, nor equate with, the right to
bring proceedings at the ICJ or before any other international court or tribunal. As will be seen in
Week 7, the jurisdiction of international courts and tribunals is always based on the consent of the
disputing States. Lacking such consent, there is no jurisdiction to entertain a claim, even if it is
about an alleged breach of an obligation erga omnes. However, if such consent exists (as in the
Belgium v. Senegal case, on the basis of the compromissory clause to be found in the 1984
Convention against Torture), every State to whom the obligation erga omnes (partes) is owed in
entitled to invoke the responsibility and to bring proceedings against the allegedly responsible
State.
The difference between consent to jurisdiction and the right to invoke the responsibility for breach
of an obligation erga omnes was made clear by the International Court of Justice in the East Timor
case:
“29. [...] In the Court's view, Portugal's assertion that the right of peoples to self-determination, as it
evolved from the Charter and from United Nations practice, has an erga omnes character, is
irreproachable. The principle of self-determination of peoples has been recognized by the United
Nations Charter and in the jurisprudence of the Court (see Legal Consequences for States of the
Continued Presence of South Africa in Namibia (South West Africa) notwithstanding Security Council
Resolution 276 (1970), Advisory Opinion, I. C. J. Reports 1971, pp. 31- 32, paras. 52-53 ; Western
Sahara, Advisory Opinion, I. C. J. Reports 1975, pp. 31-33, paras. 54-59); it is one of the essential
principles of contemporary international law. However, the Court considers that theerga omnes
character of a norm and the rule of consent to jurisdiction are two different things. Whatever the nature
of the obligations invoked, the Court could not rule on the lawfulness of the conduct of a State when its
judgment would imply an evaluation of the lawfulness of the conduct of another State which is not a
party to the case. Where this is so, the Court cannot act, even if the right in question is a right erga
omnes.” (ICJ, East Timor (Portugal v. Australia), 30 June 1995, ICJ Report, p. 102, para. 29)
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VI. COUNTERMEASURES
The notion of countermeasures

International law is a decentralized legal order. Every State is entitled to judge by itself if an
internationally wrongful act has been committed, and eventually to invoke, either as an injured
State or as a non-injured State, the responsibility of another State for that breach.
- Possible responses to a breach
o Adjudication
But there is a difference between invoking the responsibility of a State and being able to enforce
that responsibility before an international court or an international tribunal. Absent State consent,
there is no compulsory adjudication, so that the injured State may be facing a situation where the
responsible State will just flatly reject its claim. If that is the case, the rules on State responsibility,
and international law in general, will risk being completely ineffective.
Of course, the injured State may always press its claim and its demands, present them again to the
responsible State in the hope of finding an agreed settlement.
o Retorsions
The injured State may also put pressure on the responsible State by taking all sorts of unfriendly
measures that are intrinsically legal, measures that are called “retorsions”, (e.g. postponing a State
visit, limiting, suspending or even terminating the diplomatic ties between the two countries, or
preventing foreign officials to enter its territory, or suspending a treaty in conformity with the law
of treaties, etc.).
o Countermeasures
But, additionally, the injured State will also be entitled to press its claims against the responsible
State by resorting to measures that are, as such, in breach of its international obligations but for
which the injured State will however not incur international responsibility because those measures,
although illegal, are taken in response to a first violation.
Ø For instance, the injured State suspends the application of a trade treaty, or the
benefits of any other international obligation it owes to the responsible State, like the
benefits resulting from an air transport agreement, while such suspension cannot be
justified under the treaty itself or the law of treaties in general.
Deliberately breaching the law in response to a first violation is not much different from taking
justice in one’s own hands.
Measures of self-redress are usually forbidden in municipal law. By contrast, such enforcement
measures are not prohibited in international law. In fact, reciprocity, quid pro quo, is at the heart of
international law and reprisals have been traditionally tolerated in international law. Armed
reprisals are now, as a matter of principle, prohibited, but non-forcible reprisals are still very much
part of international law today. Today, those non-forcible reprisals are called “countermeasures”.
The second Chapter of Part Three of the Articles on the Responsibility of States for Internationally
Wrongful Act is about “Countermeasures”. We have already come across the notion of
countermeasures as a circumstance precluding wrongfulness under Article 22 of ARSIWA. But it is
time now to make it more explicit and to try to understand what are countermeasures, when and
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why it is possible to resort to countermeasures, who may resort to countermeasures and how
countermeasures must be exercised. All those questions are dealt with under Article 49 to 54
ARSIWA. Those articles reflect to a large extent customary international law, even if some of the
procedural requirements set out in those Articles probably still need to be confirmed by State
practice. And because the ILC has codified countermeasures, and that such codification represents
acceptable international law, it is very likely that State practice will actually conform with them in
the future.
§ What is a countermeasure?
A countermeasure is an internationally wrongful act taken in response to a previous internationally
wrongful act.
As stated earlier, countermeasures are intrinsically illegal – and are therefore distinct from
retorsion measures, which are unfriendly, but intrinsically legal – and therefore unregulated by
international law.
§ Who may resort to countermeasures?
The author of the countermeasure must be the injured State within the meaning of Article 42.
And the target of such countermeasure must be the responsible State, and the responsible State only.
This is of course common sense and it has been recalled by the ICJ in the Gabčíkovo-Nagymaros
case: “In the first place [a countermeasure] must be taken in response to a previous international
wrongful act of another State and must be directed against that State”.
§ When and why it is possible to resort to countermeasures?
The countermeasure being the second breach in response of a previous breach, its wrongfulness
will be precluded.
Furthermore, as recalled by Article 49, paragraph 1, countermeasures must only be taken “in order
to induce [the responsible] State to comply with its obligations under part two” of the Articles, i.e.
its new substantive obligations of cessation, reparation and, if the circumstances so require,
assurances and gurantees of non-repetition. In other words, countermeasures are enforcement
measures, measures whose only purpose is to obtain from the responsible State that it complies
with the new obligations that were triggered as a result of its wrongful act. Countermeasures are not
punitive measures; they are law-enforcement measures typical of a decentralised legal order.
§ How must countermeasures be exercised?
Countermeasures are, by nature, temporary. They must be terminated as soon as the responsible
State has complied with its secondary obligations. This is made clear by Article 53.
Because of their temporary nature, countermeasures are, according to paragraphs 2 and 3 of Article
49: “limited to the non-performance for the time being of international obligations of the State
taking the measures towards the responsible State” and they “shall, as far as possible, be taken in
such a way as to permit the resumption of performance of the obligations in question”.
This being said, some obligations may not be temporarily suspended by the injured State by means
of countermeasures. Those obligations may not be affected by countermeasures and the injured
State is required to continue to respect these obligations in its relations with the responsible State.
Those obligations are listed under Article 50.
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Let’s recall here the two customary principles limiting the exercise of countermeasures:
1) Countermeasures can only be resorted to if they are necessary to protect the rights of the
injured State.
2) And they must be resorted to in a proportionate way.
Limits to the exercise of countermeasures

- Article 50 ARSIWA
As stated earlier, the performance of certain obligations may not be impaired by countermeasures.
Those obligations are specified under Article 50 ARSIWA.
o Paragraph 1
The obligations mentioned under paragraph 1 of Article 50 are considered to be out of reach of
countermeasures for substantive reasons and because of the collective values they protect. Because
they are out of reach of the reciprocity which is inherent in countermeasures, those obligations
are sometimes referred to as “integral” obligations.
The prohibition of forcible countermeasures, i.e. armed reprisals, under paragraph 1 (a), reflects a
requirement spelled out in the Declaration on Principles of International Law concerning
Friendly Relations and Cooperation among States in accordance with the Charter of the
United Nations (Resolution 2625 (XXV) of 1970: “States have a duty to refrain from acts of
reprisal involving the use of force” (see Reading Material) and it is consistent with the prevailing
cases. In the Nicaragua v. United States case, the ICJ notably held that:
“[...] While an armed attack would give rise to an entitlement to collective self-defence, a use of
force of a lesser degree of gravity cannot [...] produce any entitlement to take collective
countermeasures involving the use of force. The acts of which Nicaragua is accused, even assuming
them to have been established and imputable to that State, could only have justified proportionate
counter-measures on the part of the State which had been the victim of these acts, namely El
Salvador, Honduras or Costa Rica. They could not justify counter-measures taken by a third State,
the United States, and particularly could not justify intervention involving the use of force.” (ICJ,
Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of
America), 27 June 1986, ICJ Reports, para. 127, p. 127)
o Paragraph 2
The obligations under paragraph 2 are protected because of the function they fulfil, notably in
helping to resolve the dispute resulting from the internationally wrongful act and the
countermeasure.
The dispute settlement obligations that must be respected are those that are available between the
responsible State and the State taking countermeasures for the settlement of their dispute arising
from the internationally wrongful act and the countermeasure. The diplomatic and consular rules
that remain unaffected are those that protect the inviolability of agents, premises, archives and
documents (including the diplomatic bag).
Other obligations owed under diplomatic or consular rules, notably those relating to privileges, may
be breached by way of countermeasures, provided however that the inviolability of agents,
premises, archives and documents remains unaffected. If the inviolability of diplomats or of the
mission is breached by the receiving State, the sending State may not reciprocate by breaching such
inviolability in return; or again: if the mission violates diplomatic law because it is engaged in
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spying activities against the receiving State, the latter may not breach its inviolability by way of
countermeasures. As the ICJ has stated: “diplomatic law itself provides the necessary means of
defence against, and sanction for, illicit activities by members of diplomatic or consular missions”
(ICJ, United States Diplomatic and Consular Staff in Tehran (United States of America v. Iran), 24
May 1980, ICJ Reports, p. 38, para. 83), such means of defence being to declare a diplomat persona
non grata, to terminate or suspend diplomatic relations, to recall ambassadors, etc. According to the
Court:
“86. The rules of diplomatic law [...] constitute a self-contained regime which, on the one hand, lays
down the receiving State’s obligations regarding the facilities, privileges and immunities to be
accorded to diplomatic missions and, on the other, foresees their possible abuse by members of the
mission and specifies the means at the disposal of the receiving State to counter any such abuse.
These means are, by their nature, entirely efficacious, for unless the sending State recalls the
member of the mission objected to forthwith, the prospect of the almost immediate loss of his
privileges and immunities, because of the withdrawal by the receiving State of his recognition as a
member of the mission, will in practice compel that person, in his own interest, to depart at once.
But the principle of the inviolability of the persons of diplomatic agents and the premises of
diplomatic missions is one of the very foundations of this long-established régime, to the evolution of
which the traditions of Islam made a substantial contribution. The fundamental character of the
principle of inviolability is, moreover, strongly underlined by the provisions of Articles 44 and 45 of
the Convention of 1961 [on diplomatic relations] (cf. also Articles 26 and 27 of the Convention of
1963 [on consular relations]). Even in the case of armed conflict or in the case of a breach in
diplomatic relations those provisions require that both the inviolability of the members of a
diplomatic mission and of the premises, property and archives of the mission must be respected by
the receiving State. Naturally, the observance of this principle does not mean - and this the
Applicant Government [i.e. the United States] expressly acknowledges - that a diplomatic agent
caught in the act of committing an assault or other offence may not, on occasion, be briefly arrested
by the police of the receiving State in order to prevent the commission of the particular crime. But
such eventualities bear no relation at all to what occurred in the present case."
- Specific regimes
In addition to the obligations listed under Article 50, some specific régimes may prohibit
countermeasures (or resorting to) within the framework of such régime.
This is notably the case within the European Union. As early as 1964, the European Court of Justice
rejected the views presented by Belgium and Luxembourg according to which “international law
allows a party, injured by the failure of another party to perform its obligations, to withhold
performance of its own”. In response to such argument based on international law and which could
have referred either to exceptio inadiplenti contractus or to countermeasures (failing a material
breach of the treaty), the ECJ held:
“[…] this relationship between the obligations of parties cannot be recognized under Community
law. In fact the Treaty is not limited to creating reciprocal obligations between the different natural
and legal persons to whom it is applicable, but establishes a new legal order which governs the
powers, rights and obligations of the said persons, as well as the necessary procedures for taking
cognizance of and penalizing any breach of it. Therefore, except where otherwise expressly
provided, the basic concept of the Treaty requires that the Member States shall not take the law into
their own hands. Therefore the fact that the Council failed to carry out its obligations cannot relieve
the defendants from carrying out theirs.” (ECJ, Commission v. Luxembourg and Belgium, Joined
cases 90 and 91/63, 13 Nov. 1964, ECJ Reports 1964, p. 631)
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- Countermeasures: requirements
In exercising countermeasures, two customary requirements must be met:
1) First, resorting to countermeasures must be necessary in order to protect the injured State’s
rights;
2) Second, countermeasures must be exercised in a proportionate way.
Compliance with those conditions must be assessed on a case-by-case basis, but the ILC has tried to
provide some guidance in that regard.
o Necessity
The necessity requirement has essentially been translated in the ARSIWA in procedural obligations
under Article 52.
The notification requirement under paragraph 1 of Article 52 has notably been put forward by the
ICJ in the Gabčíkovo-Nagymaros Project case (Hungary/Slovakia).
o Proportionality
The proportionality requirement is stated under Article 51.
In the Gabčíkovo-Nagymaros case, the ICJ expressed the proportionality requirement as
follows: “the effects of a countermeasure must be commensurate with the injury suffered, taking
account of the rights in question”.
Drawing from that case, the ILC wrote in its ARSIWA Commentary:
“Considering the need to ensure that the adoption of countermeasures does not lead to inequitable
results, proportionality must be assessed taking into account not only the purely “quantitative”
element of the injury suffered, but also “qualitative” factors such as the importance of the interest
protected by the rule infringed and the seriousness of the breach. Article 51 relates proportionality
primarily to the injury suffered but “taking into account” two further criteria: the gravity of the
internationally wrongful act, and the rights in question. The reference to “the rights in question” has
a broad meaning, and includes not only the effect of a wrongful act on the injured State but also
on the rights of the responsible State. Furthermore, the position of other States which may be
affected may also be taken into consideration.” (Report of the Commission to the General Assembly
on the work of its 53rd session, YbILC, 2001, Vol. II, Part 2, p. 135)
Countermeasures by other states than the injured State?

So far, we have discussed countermeasures that are taken by the injured State against the
responsible State.
But other States than the injured State may also have a right to invoke responsibility, under the
conditions set out in Article 48. Those other States have a rightful interest that the responsible State
respects its international obligations when those obligations protect collective interests. This is most
notably the case when the internationally wrongful act is continuing and that it consists in the
serious breach an erga omnes obligation that exists under a peremptory norm of general
international law.
When a serious breach of an obligation under a jus cogens norm is ongoing, the injured State is of
course entitled to protect its rights by resorting to countermeasures. But in such a situation, because
all the other States are already entitled to invoke the responsibility of the author of the violation and
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claim cessation, should they not also be entitled to resort to countermeasures, so as to add pressure
on the responsible State and to bring that serious breach sooner to an end?
Of course, as a matter of principle, and as we shall see during the last week of this course, such
situations could justify that sanctions be taken by the UN Security Council. But what if the Security
Council is vetoed? If a genocide or ethnic cleansing is ongoing, that the Security Council is
blocked, must the rest of the world pay lip service to the prohibition of genocide, or human rights,
complain about it and then do nothing, stand by and watch?
3) Practice
On the face of it, it does make sense to allow non-injured States to put pressure with non-forcible
countermeasures on the State responsible for the most serious breaches. As a matter of fact, when
codifying countermeasures, the ILC did not fail to take note of some practice in that direction.
Ø For instance, in 1978, the United States claimed that the Idi Amin Dada was
committing genocide against its own people and imposed an embargo against
Uganda.
Ø In 1981, when martial law was imposed in Poland, some Western States took
countermeasures against Poland for the alleged violations of human rights.
Ø In 1982, when Argentina took military control of the Falkland Islands, or Malvinas,
some non-injured States showed solidarity with the United Kingdom and also took
trade sanctions against Argentina.
Ø In 1990, some countries took measures against South-Africa that went beyond the
sanctions imposed by the Security Council.
The same year, when Iraq invaded Kuwait, the US and the European Union members
froze Iraqi assets and adopted trade embargoes before the Security Council took
extensive sanctions.
Ø A few years later, in 1998, European States also took countermeasures, in the form
of the suspension of aviation and trade agreements, against the Federal Republic of
Yugoslavia.
Those measures were additional to UN sanctions and have been justified as a reaction to gross
human rights violations, or on the basis of a fundamental change of circumstances.
Ø And closer to us, the US and the European Union took a series of measures against
Russia for its alleged involvement in the crisis in Ukraine.
4) Problem
All those cases allow to put in perspective the seemingly good idea of what can be called “universal
countermeasures”. Things are of course a little bit more complicated than just coming to the rescue
of fundamental norms through other breaches.
Indeed, how can one be certain that a serious breach of a jus cogens obligation has indeed occurred
and is continuing? And how can one be sure that the countermeasure in response to such a breach,
when taken by a non-injured State, is genuinely pursuing the cessation of such breach and does not
have any other political objective? Furthermore, and as all those examples show: why is it that
“universal countermeasures” are nearly only used by non-injured Western States? If international
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law were to tolerate countermeasures by non-injured States, would it not amount to giving even
more power to those States that are already powerful? And if common values are indeed at stake
and must be rescued, is it acceptable to offer some States – and besides, always the same Western
States – the legal entitlement that they take the common interest in their own hands and pretend to
protect it by resorting to measures that are, as such, in breach of international law?
5) ILC Draft Article of 1966: universal countermeasures in case of “crime”
In 1996, on the basis of the practice mentioned supra and because of the desirability of seeing basic
norms protected, the ILC adopted a draft article according to which all States would have been
entitled to take countermeasures in case of an ongoing “crime” of a State, i.e. in case of a serious
breach of an obligation under a jus cogens norm.
The UN member States were called to comment on this proposal. But the reactions were extremely
divisive, and the Western powers fairly isolated in their stance in favour of universal
countermeasures.
As a result, the ILC had to tune down its draft and find a compromise. It did so by inserting a
“without prejudice clause”. Today, Article 54 of the Articles on State Responsibility is entitled
“Measures35 taken by States other than an injured State”. Non-injured States that are entitled to
invoke the responsibility of another State under Article 48 are said to have also “the right [...] to
take lawful measures against that State”.
What does that mean?
6) If the measures are retorsion measures, that is measures that are intrinsically lawful, well
Article 54 is just a tautology. Non-injured State have of course the right to take measures
that are not in breach of any of their international obligations.
7) Commenting on Article 54, the ILC writes that because “the current state of international
law on countermeasures taken in the general or collective interest is uncertain”, Article 54 is
to be viewed as “a saving clause which reserves the position and leaves the resolution of the
matter to the further development of international law”.
The ILC adds: “The article speaks of ‘lawful measures’ rather than ‘countermeasures’ so as
not to prejudice any position concerning measures taken by States other than the injured
State in response to breaches of obligations for the protection of the collective interest or
those owed to the international community as a whole”.
35
Not countermeasures.
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Week 7: Seeking justice

I. GENERALITIES
Seeking justice
This week is entitled “Seeking Justice”. It is an ambitious title, and at the same time it conveys the
idea that justice is still a task ahead when it relates to international law.
After having studied who makes international law during the second week of this course, after
having closely considered how international law is made and how it is applied during, respectively,
Weeks 3, 4 and 5, and also after having studied in the course of last week what are the legal
consequences, in terms of international responsibility, for those who make international law when
they do not respect it, it is time to take the latter question one step further: see how responsibility
can be enforced, and turn to an issue which is inseparable from the idea of any law, that is justice.
Justice for breaches of international law is one of the most crucial issues when addressing the
effectiveness of international law. And indeed, much of the criticism about international law is that
it very often fails to be real and to be effective. That international law is all nice and well on paper,
but that it crucially lacks redress mechanisms when it is not respected. And furthermore, that double
standard exists, that is that justice is not the same for all, which, actually, is the very negation of the
idea of justice.
Unfortunately, there is undoubtedly some truth in that criticism and it would be simply wrong and
dishonest to pretend that international law is a perfect system and that international justice can
always be achieved and is always achieved.
But it would also be wrong to consider that international law is just a fiction, that it is never applied
or that its violations are never sanctioned. And an honest assessment of reality requires both to
admit that a lot of progress has been achieved over the last decades, while, at the same time, to
understand why it is very difficult, if not impossible, to have in international law a justice system
which is as efficient, as fair, effective and impartial as the one that exists in some rare national
jurisdictions around the world. And it is also important to recognize that it is often the failures or
the lack of justice at the national level that will stir the desire for international justice, or for trying
to find justice in foreign courts.
So, it would be a mistake if the quest for justice in this world were to concentrate all hopes at the
international level and stop there, without addressing the immense needs of justice at the domestic
level in many countries around the world. Saying that does not mean contesting that international
law has something to say about the obligation for States to provides judicial redress, nor contesting
that, in certain circumstances, international or foreign justice adequately remedies or supplements
the lack of justice at the domestic level. And, as we shall see, this is sometimes the case, but always
and immediately jumping at the international level to improve it without first demanding much
needed constitutional improvements could unduly encourage to shirk responsibilities, while at the
same time running the risk of backlashes and leading to even higher disappointments in a certain
way.
Of course, this course cannot address the challenges facing domestic justice in many parts of the
world and how to remedy them. But in order to a have a sound judgment about justice in
international law, and about the relationship between justice and international law, it is important to
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look into the matter a bit closer and see what are the redress mechanisms that are available, how
they function and why they have limits.
Seeking justice for breaches of international law can be done at the national level or at the
international level, and at both levels it can relate to criminal justice or not.
Because of the limited scope of this course and because of its introductory character, it will not be
possible to cover all international courts and tribunals, nor to detail all the legal issues and all the
legal hurdles that may result from bringing claims for alleged breaches of international law before
domestic courts in the various jurisdictions around the world. Therefore, we shall concentrate on
some essential elements:
- International level:
o We’ll address, on the one hand, what it usually called in textbooks the “pacific
settlement of disputes”.
o Then, we’ll quickly turn to arbitration before paying more attention to the
International Court of Justice.
And today, there are of course other standing courts and tribunals in the world, and
the course will name some of them, but we’ll take the ICJ as a model: it it the oldest
standing international court, it has a general jurisdiction (not limited to a specific
field of international law nor to a certain type of disputes), and it is the principal
judicial organ of the UN.
o On the other hand, always at the international level but turning now to criminal
justice, some basic elements about the International Criminal Court will be surveyed.
- Domestic level:
o Because the organization of the judiciary and the powers of national courts vary to a
great extent from country to country, we shall concentrate on the international law
hurdles that exists when bringing a claim in domestic courts against a State, a foreign
State, or an international organization, or when starting criminal proceedings against
foreign officials. In other words, immunities, and the customary rules of
international law relating to immunities, will be studied.
Settling disputes
During Week 6, we have seen how States may claim responsibility from other States for alleged
breaches of international law. Such a claim can be met by an admission of responsibility and an
agreed settlement, but it can also be met with a rebuttal: the responsible State rejects any
responsibility or fails to agree on the amount of compensation claimed, despite possible
countermeasures taken by the injured State against it. And because the accused State may consider
that it is not responsible for any previous violation, it could in turn allege that the countermeasure
constitutes a wrongful act and claim responsibility for it. Failing any agreed solution, the dispute
resulting from those contradictory allegations could go on indefinitely or even deteriorate and bring
the States concerned to the brink of a grave diplomatic crisis.
Likewise, when serious breaches of peremptory norms are alleged, non-injured States may also
invoke the responsibility of the wrongdoing State, and disputes can multiply. Or disputes may be
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about territory or maritime delimitation, or any other point of law or fact about which States have
conflicting views.
In fact, a “dispute” has been defined by the Permanent Court of International Justice as “a
disagreement over a point of law or fact, a conflict of legal views or of interests between two
persons” (PCIJ, Mavrommatis Palestine Concessions (Greece v. United Kingdom), 30 August
1924 (jurisdiction), Series A, n°2, 1924, p. 11). This classical definition of what constitutes a
dispute is still very often referred to today in judgments and awards of international courts and
tribunals whose jurisdiction is predicated on the existence of a “dispute” that has to be settled.
The obligation to settle disputes peacefully
- War as the ultimate way to settle international disputes
For many centuries, war was not the only, but the ultimate way to settle international disputes. As
Clausewitz famously wrote, “war is not merely an act of policy but a true political instrument, a
continuation of political intercourse carried on with other means”.
And through its modus operandi, which is material destruction and death, the purpose of war is to
compel the enemy to fulfil the will of the victorious power. And because States were for a long time
free, under international law, to resort to the use of force, they were entitled to obtain through war
the settlement of any dispute in the form of a valid peace treaty – a peacy treaty containing the
terms of the settlement of the dispute that was the reason for the war, together with the terms of the
settlement of the new situation resulting from the war. And the treaty was of course imposed as a
result of the war, through coercion and violence, but it was nevertheless perfectly valid and binding
on the defeated State because such coercion was not illegal. The defeated and coerced State could
not claim that its consent to the peace treaty was defective, as the means for such duress, that is war,
was not illegal.
- The outlawry of war
As we have seen when discussing Article 52 of the Vienna Convention on the Law of Treaties (see
Week 4), and as we shall see next week, things have dramatically changed with and since the
“outlawry” of war.
Because, as a matter of principle and absent specific circumstances that we shall study, States may
not anymore resort to the use of force, they must settle their disputes by peaceful means. The
prohibition to use force and the obligation to settle disputes peacefully are the two sides of the
same coin.
- The obligation to settle disputes peacefully
The obligation, not to settle disputes, but to settle them by resorting only to peaceful means, is well
established under international law. It is one of the founding principles of the United Nations (see
Article 2, paragraph 3 and Article 33, paragraph 1, of the UN Charter).
Those provisions have been repeated and expanded by the 1970 General Assembly’s Declaration on
Principles of International law concerning friendly relations (Res. 2625 (XXV)).
And the ICJ declared that it reflected customary international law: “Every State shall settle its
international disputes with other States by peaceful means in such a manner that international peace
and security and justice are not endangered. States shall accordingly seek early and just settlement
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of their international disputes by negotiation, inquiry, mediation, conciliation, arbitration, judicial

settlement, resort to regional agencies or arrangements or other peaceful means of their choice.”
In the Nicaragua v. United States case, the International Court of Justice stated that “the principle
that the parties to any dispute, particularly any dispute the continuance of which is likely to
endanger the maintenance of international peace and security, should seek a solution by peaceful
means [...] is a principle that has [...] the status of customary law”.
o Means of settlement of international disputes: political or judicial
As we can see from Article 33 and from the 1970 Declaration, States are free to resort to any
means of settlement, to means of their own choice, provided however that those means are
peaceful.
Ø At most, States could for instance toss a coin, draw the short straw or throw the dice
to settle their disputes. That would certainly not be illegal under international law
because those are peaceful means, but it is of course very unlikely to happen for
many reasons that are very easy to imagine.
The various means to settle international disputes are traditionally classified in two categories: there
are political means and judicial means of settlement.
The distinction does not relate to the nature of the dispute, but to the nature of the process of
settlement and to the powers of the actors of such settlement. Besides, the idea that certain disputes
could be of a purely political nature, and therefore not suitable for settlement through judicial
means, that idea must be rejected, and had been rejected. It is true that an international dispute has
very often a political dimension, but, conversely, it rarely has no legal dimension and, as
international law continues to develop, it will almost always be possible to phrase a political dispute
in legal terms, or at least to identify, within a larger political dispute, some of its legal aspects.
This does not mean that judicial means of settlement are always advisable – no. Certain disputes
could not reasonably be thoroughly settled by a judge or by an arbitrator and they best require a
negotiated and mutually agreed compromise.
But this does not mean neither that an international judge or an arbitrator should decline to exercise
its jurisdiction because of the larger political dimension of the legal aspects of the dispute that is
entitled to adjudicate about those legal aspects. There is a long string of cases in which international
courts and tribunals have rejected the suggestion that they should declare the claim inadmissible
because of its wider political nature or context. And notably, in the case relating to the American
diplomatic and consular staff held hostage in Tehran, but also in the Nicaragua v. US case, two
cases that we have already come across, the ICJ very clearly made that point.
The key differences between the political and the judicial means of settlement are twofold.
1) First, the political means ultimately rest on the final consent of the States concerned. Under
the political means, a settlement is never imposed upon the disputing States: they must
always, ultimately, consent to such outcome in order for it to be legally binding on them.
In contrast, the judicial outcome is imposed on the parties by an independent third organ and
it is binding on them. However, and this is fundamental, the very existence of any judicial
means of settlement always depends on the consent of the disputing States to it. In other
words, the decision of an international court or tribunal may be binding on the parties, but it
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is binding because the parties have expressly consented to submit the dispute to
adjudication. Absent such consent, there is no power to adjudicate. And this will be made
clear again when talking about arbitration and the ICJ.
To sum up quickly: consent of the disputing parties is key both for political and judicial
means of settlement.
However, consent must exist at the very beginning in case of a judicial settlement, while it
must also exist at the end of the process in case of a political settlement.
2) The second difference between political and judicial means is as follows: judicial means are
predicated on the application of pre-existing rules of international law – at least that is
the fiction – rather than on the creation of new rules. Judicial settlement is a process of
adjudication by which, after the parties have been given the chance to fully present their
views, their arguments and evidence, a third independent organ takes a binding decision on
the basis of existing rules of international law. In other words, the judge or the arbitrator is
called to give reasons for its decision, reasons that are based on rules binding on the parties
at the time of the events that gave rise to the dispute.
In contrast, the political means may result in the conclusion of a treaty with new
obligations, or obligations which derogate from previous obligations.
Political means of settlement
Under Article 33 of the UN Charter and the 1970 General Assembly’s Declaration on
Principles of International Law concerning Friendly Relations and Co-operation among
States in accordance with the Charter of the United Nations, the political means for the
settlement of international disputes are negotiation, enquiry, mediation, conciliation, resort to
regional agencies or arrangements.
- Negotiations
Negotiations are the most common and most informal way to settle disputes in international
relations.
As already mentioned during Week 4 when addressing the conclusion of treaties, negotiations are
largely left unregulated under international law, precisely in order to remain fruitful. The outcome
of negotiations can be further negotiations, the absence of a settlement, the conclusion of a political
agreement or of a treaty.
From an historical and diplomatic, or even psychological, point of view, negotiations can be a
fascinating field of study.
From a legal point of view, the only constraint on a negotiation process is to be found in the law of
treaties, provided that the outcome of the negotiation takes the form of a treaty.
- Enquiry
Sometimes, the dispute exists because the facts that gave rise to it are disputed. What precisely
happened during an incident or a course of action is unclear. The parties may therefore agree to set
up a commission of enquiry [inquiry in US English] in order to collect the evidence and report on
the facts, as they happened. The 1899 and 1907 Hague Conventions for the settlement of
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international disputes provide some rules in order to help and encourage states to establish
commissions of inquiry, in case this is likely to facilitate a peaceful settlement.
Even in the absence of State consent, fact-finding commissions have also been established by the
UN Security Council pursuant to Article 34 of the UN Charter.
The UN Human Rights Council has also established several commissions of inquiry, focusing on
alleged large-scale human rights violations.
- Good offices and mediation
Both good offices and mediation are also regulated under the Hague Conventions.
They both entail the intervention of a third party, or a third person, which is not one of the parties to
the dispute. Making an offer of good offices or mediation is never an hostile or unfriendly act.
However, the difference between good offices and mediation is to be found in the nature of the
intervention of the third party:
- During good offices, the third party simply helps to restore the communication between the
disputing parties, passing messages and proposals from one party to the other party,
travelling from one capital to the other, etc.
- By contrast, or rather in addition, the mediator tries to reconcile the views and positions of
the disputing parties by making personal suggestions on the ways to address and settle their
respective grievances. Mediation goes one step further than good offices: the mediators
tables settlement proposals to the parties, which they remain free to amend, to agree with or
to reject. It is for the parties to the dispute, and for them only, to finally agree on a
settlement – even if they may want that the mediator be witness of their agreement and co-
signs it with them.
- Conciliation
Conciliation is a form of institutionalized mediation between the parties themselves: each party to
the dispute appoints a conciliator and they form together a conciliation commission.
The conciliation commission proceeds with the impartial examination of the dispute and attempts to
find the terms of a settlement agreeable to the parties. Again, the proposed settlement is not
imposed on the parties, as they need to agree on the proposal for the settlement to be binding on
them.Conciliation commissions are more apt to resolve a class of similar disputes, stemming from
identical or closely related facts.
Ø In the 1947 peace treaties with Italy and with other former war allies of Germany,
bilateral conciliation commissions were established to settle some war claims.
- Arbitration
In case of disagreement by the parties on the conciliation report, the conciliation commission was
turned into an arbitration by the addition of a third member, with the power to adjudicate on the
dispute.
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- Regional agencies or arrangements

Regional agencies or arrangements are very often used in international relations and allow for
diplomacy to take place under the auspices of neighbouring States and peers.
Under Chapter VIII of the UN Charter, recourse to regional agencies or arrangements is encouraged
(see Week 8).
Judicial means of settlement and the interplay between judicial and political means
- An alternative to the direct and friendly settlement of the disputes
It might be difficult to accept for lawyers, but in international relations: “the judicial settlement of
international disputes [...] is simply an alternative to the direct and friendly settlement of such
disputes between the Parties” (PCIJ, Free Zones of Upper Savoy and the District of Gex (France/
Switzerland), Order of 19 August 1929, Series A, n°22, p. 13). The authoritative French version of
the 1929 Order by the PCIJ speaks of judicial settlement as being a “succedanea”, which has been
translated as “alternative”, but “succedanea” is stronger – it conveys the idea of a substitute, an
ersatz, a second choice. This should always be kept in mind: bringing a case before an international
court or tribunal is rarely an end in and by itself.
- The interplay between judicial and political means
The reasons why direct settlement is not possible can be varied and may relate to
international political reasons or to domestic political reasons. Resorting to judicial means of
settlement will then be viewed as an honourable way-out, or as a card to play in a bigger political
game.
And indeed, if political and judicial means of settlement are by nature different and must not be
confused, they very often interplay: the impossibility to settle by negotiations will lead to going to
courts or arbitration, but conversely, bringing a case before an international court or tribunal might
serve as an incentive to go back to the negotiation table. And because parallel negotiations are
always possible between the disputing parties while judicial proceedings are ongoing, triggering a
judicial means may sometimes proves the best way to precipitate an agreed settlement, one of the
parties fearing an adverse judgment.
- No compulsory jurisdiction, no international judiciary
As will be made clear in the following sections, international judicial settlement always depends on
the consent of the disputing parties: there is no compulsory jurisdiction in international law.
Neither is there an international judiciary: there are various international courts and tribunals, but
there is no formal “system” of international courts and tribunals, like there is a judicial system of
interconnected courts and tribunals at the domestic level. Some international courts are specific to a
region, or to a field of law, or to both.
Ø For instance, the European Court of Human Rights is the highest human rights court
for each of the 47 States that are members of the Council of Europe.
Ø The Appellate Body of the World Trade Organization exists under the Dispute
Settlement Understanding that was concluded alongside the WTO agreements to
settle trade disputes between the WTO members.
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Ø The International Tribunal for the Law of the Sea, which sits in Hamburg, was
established under the United Nations Convention on the Law of the Sea as one of the
means (together with arbitration and the ICJ) to settle disputes arising under the
Convention between contracting States. Other international courts and tribunals
exist.
Despite the fact that there is no international judiciary, international courts and tribunals pay
attention to the work and decisions of each other. Therefore, the absence of a formal system of
courts and tribunals does not prevent to attain a rather high level of consistency between the
various judgments issued by different courts and tribunals on identical issues of law – even if
some notable clashes have occured, as exemplified by the ICTY and ICJ diverging views on the
criteria for the attribution to States of the conduct of persons or a group of persons acting under
State control (see Week 6 and the debate about Article 8 ARSIWA).
II. ARBITRATION
Arbitration: generalities and consent

- Notion and definition
Arbitration exists in domestic law, and notably in commercial matters, but arbitration also exists in
international law.
Arbitration is a binding method of dispute settlement, in the sense that it results in a decision taken
by a third party which is binding on the parties to the dispute and which settles the dispute by
application of the rules of international law.
- Historical perspective
o The Jay Treaty of 1794
Arbitration is an old institution of international law and in its modern form, it is usually traced back
to the Jay Treaty of 179436, a treaty concluded in London between the young Unites States of
America and Great Britain. It is a treaty of amity, commerce and navigation which established
mixed commissions of arbitrations to solve certain pending disputes that existed between the two
parties.
o The Washington treaty of 1871
And later, under the Washington treaty concluded in 1871, the same two countries agreed to settle
through arbitration important claims relating to the damages caused to American merchant ships by
warships, among which the Alabama war ship, that were built in Britain and sold to the Confederate
States during the American Civil War. The US government claimed that by letting those ships being
sold, the British government had failed to meet its obligations under the laws of neutrality during
the Civil War in the US. This led to a famous arbitration held in the town hall of the city of Geneva.
The Tribunal upheld the US claim and ordered Great Britain to pay 15,5 millions dollars in gold for
the losses caused to the US merchant navy, which was a huge sum of money at the time that was
duly paid by the British government.
36
The Jay treaty is named after John Jay, the first chief justice of the United States and negotiator of the London treaty.
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o The 1899 and 1907 Hague Conventions

The success of the Alabama proceedings in a complex matter stimulated further arbitrations and led
to the conclusion of the 1899 Hague Convention for the pacific settlement of international
disputes. Article 15 of the Convention defines arbitration as follows: “international arbitration has
for its object the settlement of differences between States by judges of their own choice, and on the
basis of respect for law”.
The 1907 Hague Convention repeated that definition in its Article 37 and it added, quite obviously,
that “recourse to arbitration implies an engagement to submit in good faith to the Award”.
- The Permanent Court of Arbitration
Under the 1899 Convention, the Permanent Court of Arbitration, or PCA, was established. The
Permanent Court of Arbitration is an international organization, but it is not a court despite its
name: it is an organization providing administrative support to arbitral tribunals. It is there to
facilitate arbitration so as to encourage States to resort to arbitration.
o Procedure
Each State party to the Hague Conventions may nominate up to 4 “members” of the PCA, who are
experts of international law. Those members of the PCA are then put on a list from which disputing
States may pick up and choose their arbitrators.
However, even States that are parties to the Conventions may decide to establish arbitration
tribunals outside the PCA, but what is great about the PCA is that it has all the rules of procedure
ready, it has all the administrative facilities ready, all the experience and the professionalism to
conduct arbitration.
o Seat
The PCA has its seat in The Hague and it shares with the International Court of Justice the building
of the Peace Palace. It can also host arbitration at other locations around the world. So, the PCA is
very convenient for States to set up an arbitration.
o Functions
Originally, the PCA was established to facilitate and to serve inter-state arbitral tribunal, but it now
hosts also arbitration involving international organizations. And this is important and likely to
develop since international organizations do not have a standing before the ICJ as we shall see.
The PCA may also serve as registry in cases involving a State or an international organization on
the one hand, and a private party on the other. And it notably hosts currently some fifty investment
disputes between corporations and States.
Ø The PCA has also served for instance as registry in the Abyei Arbitration, which was a case
between the Republic of Sudan and a non-state actor, which was at the time the Sudan’s
People Liberation Movement/Army, which later became the government of South Sudan.
o Consent
The fundamental rule in this matter is that there is no international arbitration, no State-to-State
arbitration, and no mixed arbitration between a State and another entity, without the consent of both
disputing parties: both claimant and respondent must have consented to submit their dispute over a
specific object to arbitration.
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Such consent can be given after the dispute has arisen, after States have for instance realized that
they would not find an agreed settlement, so that they just agree to go to arbitration. In such a case,
the disputing parties agree on a special agreement, or a “compromise”. In it, they specify not only
the object of the dispute to be adjudicated upon, but they also specify the various institutional and
procedural aspects relating to the arbitral tribunal. And this is where States can simply refer to the
PCA rules, if they wish so.
But consent to arbitration can even be given before any dispute arises. And such consent is then
expressed in a treaty, in advance. The treaty provision by which States express their consent to
arbitration is called a “compromissory clause”. And again, States may refer to PCA arbitration or
they may also agree on any other institutional or procedural rules.
Compromissory clauses can be inserted in specific treaties for the purpose of the settlement of the
disputes relating to the interpretation and application of that specific treaty. Or they can be inserted
in bilateral or multilateral treaties, providing for arbitration in relation to any type of dispute arising
between the contracting parties.
When they agree on a compromissory clause, States may insert certain prior conditions that have to
be met before resorting to arbitration.
Ø For instance, they can agree that before resorting to arbitration, the disputing parties must
have conducted negotiation for a certain period of time, and that it is only if negotiations
have failed that any of the parties may resort to arbitration. Or they may also agree on a
cooling off period, or on some specific notification requirements.
Those prior requirements are treated as judicial requirements, i.e. they must be met in order for
consent to arbitration to exist.
Examples of compromissory clauses
Many treaties contain arbitration clauses. Here are two different examples, referring to PCA:
Ø In 2003, Namibia and South Africa concluded a treaty by which they jointly established the
ǀAi-ǀAis/Richtersveld Transfrontier Park, straddling the border between the two countries.
Under Article 16 of the treaty, States agreed to go to arbitration under the auspices of the
PCA in the event of an outstanding dispute between them:
“Article 16 – Settlement of Disputes
(1) Any dispute between the Parties arising out of the implementation, interpretation or application of or
performance in terms of this Treaty including its existence, validity or termination, shall be settled amicably
through consultation or negotiation between them, through the diplomatic channel, or if not resolved in this
manner, thereafter to be referred for mediation.
(2) Should the dispute not be resolved in the manner referred to in subArticle (1), any Party may submit the
dispute for final and binding arbitration in accordance with The Hague Permanent Court of Arbitration
Optional Rules for Arbitrating Between Two States and as modified by the Parties if required, as in effect on
the date of signature of this Treaty.
(3) The appointing authority shall be the Secretary General of the Permanent Court of Arbitration in The
Hague.”
Ø The Partnership Agreement between the members of the African, Caribbean and Pacific
Group of States of the one part, and the European Community and its Member States, of the
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other part, signed in Cotonou on 23 June 2000 (see Week 5, on EU Conditionality) contains
an arbitration clause:
“Article 98 – Dispute settlement
1. Any dispute arising from the interpretation or application of this Agreement between one or more Member
States or the Community, on the one hand, and one or more ACP States on the other, shall be submitted to the
Council of Ministers. Between meetings of the Council of Ministers, such disputes shall be submitted to the
Committee of Ambassadors.
2.(a) If the Council of Ministers does not succeed in settling the dispute, either Party may request settlement of
the dispute by arbitration. To this end, each Party shall appoint an arbitrator within thirty days of the request
for arbitration. In the event of failure to do so, either Party may ask the Secretary-General of the Permanent
Court of Arbitration to appoint the second arbitrator.
(b) The two arbitrators shall in turn appoint a third arbitrator within thirty days. In the event of failure to do so,
either Party may ask the Secretary-General of the Permanent Court of Arbitration to appoint the third
arbitrator.
(c) Unless the arbitrators decide otherwise, the procedure applied shall be that laid down in the optional
arbitration regulation of the Permanent Court of Arbitration for International Organisations and States. The
arbitrators’ decisions shall be taken by majority vote within three months.
(d) Each Party to the dispute shall be bound to take the measures necessary to carry out the decision of the
arbitrators.
(e) For the application of this procedure, the Community and the Member States shall be deemed to be one
Party to the dispute.”
Arbitration: institutional and procedural aspects

- Procedure
o Constitution
Institutionally, the arbitral tribunal is often made of 3 (the default number under PCA rules) or 5
arbitrators. Sometimes, States agree on a single arbitrator, or umpire, but this is quite exceptional
today.
Each party has the right to appoint one arbitrator or two arbitrators if the tribunal has 5
members. Sometimes, parties may not appoint one of their national as arbitrator.
The presiding arbitrator is then appointed by the party-appointed arbitrators. And if they fail to
agree, or if one of the party fails to appoint its own arbitrators in due coure, the procedural rules
agreed upon by the parties usually provide that for instance the PCA Secretary-General, or the
president of the International Court of Justice or any neutral authority, like the Secretary-General of
the United Nations, has the power to appoint the missing members of the tribunal.
Once the tribunal is constituted, it conducts the procedure according to the rules of procedure
agreed by the parties.
o Jurisdictional objections to competence
And very often, the respondent will want to raise jurisdictional objections and the procedure will
“bifurcate”, in the sense that before hearing the case on the merits, the parties will exchange
arguments in writing and orally about the competence of the tribunal to entertain the dispute and the
tribunal will have to deliver an award about its jurisdiction.
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An essential principle in that regard is that the tribunal always has what is called the “compétence
de la competence”, which means that even if it has no jurisdiction to hear the claim on the merits,
the tribunal has at least the competence to decide on its own jurisdiction, and to decline it
eventually.
- If it decides that it has no jurisdiction, that is the end of the matter.
- But if the tribunal decides that it has jurisdiction, then the case proceeds to the merits and
during that second phase, the parties will present their views in writing and orally about the
merits of the claims.
o Evidence
Of course, the parties will submit evidence to substantiate their claims and sometimes experts or
witnesses may be called in.
o Awards
The awards are final and binding on the parties. Because States must consent to arbitration and
because arbitral tribunals are often called, when the procedure bifurcates, to assess and check their
jurisdiction, States rarely fail to implement binding awards.
The grounds for annulment of arbitral awards are usually considered to be rather limited, and
limited to excess of power, i.e. going well beyond what was agreed under the compromis or the
compromissory clause. Corruption of a tribunal member is also a ground for nullity, or sound
departure from the procedural rules, including the failure to state the reasons for the award.
- Disadvantage and advantages of arbitration
o Disadvantage
The parties must bear the costs of arbitration, including the arbitrators’ fees.
o Advantages
The advantage of arbitration is that it can be tailored exactly according to the needs of the parties.
Arbitration is flexible and fairly speedy, and the parties may agree also to keep it confidential. And
this latter aspect may sound unacceptable at a time when transparency is rightly praised as an
essential requirement in public affairs, but confidentiality may have the advantage of bringing the
parties closer together in the course of the proceedings.
Ø If the dispute is politically sensitive for the domestic audience and if the press is present in
the room, the tone used by States and by their counsels can be very different and less
compromising than if the proceedings are kept confidential.
- Permanence
Most of the time, arbitral tribunals are established to settle one claim and the arbitral tribunal is not
permanent.
However, some arbitral tribunals have been established to settle hundreds of claims and have
existed for decades.
Ø Most notably, this is the case of the Iran-US Claims Tribunal established under the
Algiers agreements of 1981 to settle the claims resulting from the Iranian revolution of
1979.
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The Tribunal has finalized nearly 4000 cases that mostly related to claims by individuals
and corporations, but it must still decide on large and complex claims between the US and
Iran, and it still exists.
When an arbitral tribunal serves over such a long period of time, it develops an institutional history
and also judicial consistency. Such consistency is not necessarily present between the awards
rendered by different arbitral tribunals in different cases and in different contexts. However, some
awards are considered as landmark cases and decisions and they are referred to in many
proceedings.
Some arbitral settings
Ø The Permanent Court of Arbitration: it has hosted and still hosts a wide range of arbitral
proceedings.
Ø The Iran-US Claims Tribunal: it was established under the Algiers agreements of 1981 and
continues to function today.
Furthermore, it is important to know that investment arbitration is a growing field of international
law.
It is also a very controversial field. There are currently about 3,000 (bilateral) investment treaties in
force. Under those treaties, investors (corporations or individuals) having the nationality of one of
the contracting States are entitled to submit to arbitration claims they have against the other
contracting State (host State of the investment) for alleged breaches of the treaty provisions in
relation to their investment. Investment treaties are notably designed to protect investors against
wrongful expropriation or unfair and unequitable treatment of the investment by the host State.
Many investment disputes are hosted by the International Centre for Settlement of Investment
Disputes, which has been established as one of the five organizations of the World Bank group
under the Washington Convention of 1965. Many investment arbitrations are also hosted by the
PCA, pursuant to the relevant treaty.
III. INTERNATIONAL COURT OF JUSTICE
The International Court of Justice as an institution

The International Court of Justice is, according to Article 92 of the UN Charter, the principal
judicial organ of the United Nations.
- Seat
The seat of the Court is established in The Hague, in the Netherlands. And since its foundation, the
Court’s address is the Peace Palace built by the Carnegie Foundation and also used by the
Permanent Court of Arbitration.
- Statute
The Statute of the ICJ is based upon the Statute of the Permanent Court of International Justice and
the Statute of the ICJ forms an integral part of the Charter, as stated by Article 92. This means that
the Member States of the UN, because they are party to the Charter, are also necessarily party to the
Statute of the Court which is attached to the Charter.
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This stands in sharp contrast to the system of the PCIJ37 as the PCIJ was envisaged by the Covenant
of the League of Nations, but its Statute was a separate and distinct document later concluded in
1920.
- Composition and election
The ICJ is a permanent body of 15 judges, all of different nationalities, and they are elected by the
General Assembly and the Security Council for a term of 9 years. Judges may be reelected.
Articles 4 to 12 of the ICJ Statute provide for a complex system of voting. And without going to
much into details, suffice it to say that judges are elected “regardless of their nationality from
among persons of high moral character, who possess the qualifications required in their respective
countries for appointment to the highest judicial offices or are jurisconsults of recognized
competence in international law” (Article 2).
Furthermore, under Article 9 of the Statute, which was inserted in the PCIJ Statute by a revision of
1929, the judges must represent the main forms of civilization and of the principal legal systems of
the world. As a result, and under a well-established unwritten UN practice since the early 1970s, a
number of seats is allocated to each of the various regions of the world. The allocation and the
groups very much reflect the cold war times, but this is how it goes:
- 5 members of the Court are elected from the group of Western Europe and other States, a
group which includes not only Western European States, but also the US, Canada, Australia,
New Zealand and Israel;
- 3 members are elected from the group of African countries, and traditionally, there is always
at least one member from North Africa;
- 3 members are elected from the Asian group of States;
- 2 from the Latin-American and Caribbean group; and
- 2 from the Eastern European group of States.
o An unwritten rule relating to nationality
Furthermore, and despite the fact that the Statute proclaims that the judges are elected “regardless
of their nationality”, the nationality of some of the judges do matter actually in practice. And again,
this is an unwritten and informal rule, but it is very well established practice.
And since 1946, the five permanent members of the Security Council (i.e. the United States, the
United Kingdom, France, China and Russia)38, have always had one of their nationals on the Bench
of the Court. This means that out of the 5 seats allocated to the Western European group of States, 3
are preempted for the US, the UK and France, while out of the 3 seats of the Asian group, 1 is for
China and 1 out of 2 of the seats of the Eastern group is, in practice, for Russia.
37
The PCIJ was the predecessor to the ICJ and it functioned between 1922 and 1946, when the ICJ took over from it.
There is a clear institutional continuity between the PCIJ and the ICJ. That continuity is noted under Article 92 of the
Charter, but also under Article 36, paragraph 5, and Article 37 of the Statute. Moreover, the ICJ refers to the PCIJ
judgments, decisions and opinions as if they were part of its own case-law.
38
And to the exception of the United Kingdom, the so-called “P5” nations do not recognize as compulsory the
jurisdiction of the Court, but they nevertheless insist to have one of their nationals at the Court.
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Under Article 4 of the ICJ Statute, judges are elected from a list of persons nominated by the
national groups of the Permanent Court of Arbitration. A national group is made up of four persons
appointed as “members” of the PCA by the Member States of the PCA, as we’ve seen earlier in the
course.
In order to be elected, a candidate must obtain an absolute majority of votes in the General
Assembly and in the Security Council. At the Security Council, no distinction is made between
permanent and non-permanent members of the Council for the purpose of the vote. And the
permanent members have no veto right for that purpose (Article 10). Sometimes, it is necessary to
proceed with several rounds of voting to obtain converging majorities in both organs.
In order not to change the composition of the Court abruptly every nine years, and to ensure a
certain continuity, elections take place every three years to elect (or reelect) five judges (Article 13).
Should a judge resign or die before the end of his or her term of office, a separate election is
organized and the newly elected member fills the remaining part of the term (Article 14).
The Court elects its president and vice-president every three years (Article 21).
- Administration
The Court elects the Registrar of the Court every seven years (Article 21). The Registrar is assisted
by a Deputy-Registrar appointed by the Court and by a staff of lawyers, translators, librarians, press
officers and secretaries. Judges are also assisted by the Registry, including their clerk.
- Chambers
o Full Court (Article 25)
The Court usually sits in plenary as a full Court (Article 25).
o Ad hoc Chambers (Article 26)
But the disputing States may also request the setting up of an ad hoc Chamber. And both parties
have to agree for their case to be heard by an ad hoc Chamber. Such Chamber is made of five
judges. And before composing the Chamber, the President of the Court usually ascertains the view
of the Parties in that regard.
So far, six ad hoc Chambers have been established in six different cases.
o Chamber of Summary Procedure (Article 29)
The Court also has a Chamber of Summary Procedure which was never used but nevertheless
established a Chamber to hear environmental cases. That Chamber was dissolved as it never served.
The ICJ has entertained environmental disputes, but they were handled by the full Court.
o Ad hoc judge (Article 31)
An important institutional feature of the ICJ, which is reminiscent of arbitration, is the possibility
for any party which does not have one of its nationals on the Bench, to appoint an ad hoc judge.
The judge ad hoc does not need to be a national of the appointing State and he or she takes part in
all the deliberations of the Court that relate to the case for which he or she has been appointed.
If judges ad hoc are appointed, the composition of the Court in that case may increase to up to
seventeen judges (Article 31, paragraph 3).
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If some judges are sick or unable to attend a hearing or a deliberation, a quorum of nine judges is
needed to constitute the Court (Article 25, paragraph 3), and judges ad hoc are not being taken into
account for the calculation of the quorum.
Judges ad hoc may also be appointed when parties have agreed that their case be heard by an ad hoc
Chamber. And in such a case, the relative weight of the judges ad hoc will increase, as the Chamber
could be composed of three members of the Court and two judges ad hoc appointed by each party.
- Decision and expenses
The Court takes its decision by a majority of the judges present and in case of equality, the
President or acting president in the case has the casting vote (Article 55).
The expenses of the Court are borne by the United Nations, the budget of the Court being decided
by the General Assembly. So the partied do not have to pay like in arbitration, they have to pay for
their counsels only.
- The ICJ as the master of rules
o “Rules of Court”
While the Charter and the Statute of the Court are treaties that the Court cannot change by itself, the
Court is the master of its own procedural rules, called Rules of Court.
The Court can amend the Rules by itself, and this is a usual feature of international courts and
tribunals, in contrast to domestic courts.
The Court is also the master of two other documents that deserve to be mentioned.
o “Practice Directions”
The first document is called “Practice Directions” and it is addressed to the Parties.
Those Practice Directions do not alter the Rules, but they are an informal additional to the Rules
and, as you can read from the Court’s website, the Court says that they “are the result of the Court’s
ongoing review of its working methods”.
o “Resolution concerning the internal judicial practice of the Court”
The second document, that you can also find on the Court's website, is what is called the
“Resolution concerning the Internal Judicial Practice of the Court”.
It details what happens behind the scenes, and most notably once a case has been argued by the
Parties and the Court begins its deliberation. It is an important document to understand how,
concretely, a judgment is made and what is the deliberative process within the Court.
- Official languages
Last, but not least, the Court’s official languages are French and English and the Court conducts its
work in both languages at the same time (Article 39).
French has been traditionally a language of law and diplomacy in the 19th and 20th century and
many of the PCIJ judges and early ICJ judges were actually more fluent in French than in English.
Things have of course changed now, but French remains on equal terms an official language of the
Court and States may correspond and submit their arguments in any of those languages.
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The fact of having to work in both languages sometimes of course slows down the process, but it
also increases the quality of the decisions of the Court as the translation often allows to fix some
unclear or ambiguous sentences in both versions.
The ICJ advisory jurisdiction
As you have already learnt from the ICJ video on Week 2 and from the various ICJ cases that have
been referred to so far in this course, the jurisdiction of the ICJ is twofold: on the one hand, the
Court has a contentious jurisdiction; on the other hand, it has an advisory jurisdiction.
Because this week is about seeking justice and settling international disputes, the Court’s
contentious jurisdiction will be more closely studied below. Before turning to the contentious
jurisdiction of the Court, let us examine what its advisory jurisdiction is about.
Since 1946, twenty-six advisory opinions have been requested to the Court. In this course, several
important advisory opinions have been referred to: the Reparation for Injuries Suffered in the
Service of the United Nations (1949) opinion; the Namibia opinion (1971); the Nuclear Weapons
(WHO) opinion (1996); the Wall opinion (2004); the Kosovo opinion (2010).
- Article 96 of the UN Charter
From Article 96 of the Charter, it is clear that certain conditions must be met in order for the ICJ to
be entitled to exercise its advisory jurisdiction. Those conditions result from Article 96 and
the differences between its paragraphs 1 and 2:
- Under paragraph 1 of Article 96, the General Assembly or the Security Council may request
the Court to give an opinion “on any legal question”.
- Under paragraph 2, “other organs of the United Nations and specialized agencies” may
request advisory opinions “on legal questions arising within the scope of their activities”,
provided that those other UN organs or specialized agencies have been duly “authorized by
the General Assembly” to put questions to the Court.
So far, the General Assembly has authorized many specialized agencies (see Week 2 on the
notion of specialized agencies) but has not given such authorization to the Secretary General
– the reason being that member States are probably reluctant to give such power to the
Secretary General.
o Paragraph 1
The General Assembly or the Security Council may put to the ICJ “any legal question”.
Apart from the legal character of such question, no other restriction seem to exist. So far, only
questions of international law have been submitted to the Court, but from the words used in Article
96, nothing really prevents the General Assembly or the Security Council to raise questions of
domestic law, even if this is very unlikely to happen and that the Court could, in such a case,
decline to answer.
It is worth noting that under Article 14 of the League of Nations Covenant, the Permanent Court of
International Justice was called to deliver advisory opinions not only on “legal questions”, but on
“any dispute or question”. However, when asked by the Council of the League about the Status of
Eastern Carelia, the PCIJ declined to answer that question because doing so would have amounted
to decide on an issue that was disputed between Finland and Russia while Russia, which was not a
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member of the League at the time, did not consent to the jurisdiction of the Court (PCIJ, Status of
Eastern Carelia, 22 July 1923, Series B, n°5).
o Paragraph 2
By contrast to the requests addressed by the General Assembly or the Security Council, the legal
questions upon which other UN organs or specialized agencies duly authorized may request an
advisory opinion must be questions “arising within the scope of their activities”.
This restriction refers to the principle of speciality of international organizations (see Week 2). If
the Court considers that the question raised by the specialized agency does not arise within the
scope of its activity, the Court must conclude that “an essential condition of founding its
jurisdiction [...] is absent and that it cannot, accordingly, give the opinion requested” (ICJ, Legality
of the Use by a State of Nuclear Weapons in Armed Conflict, 8 July 1996, ICJ Reports, p. 84, para.
31).
- Article 12 of the UN Charter
Does Article 12 prevent the General Assembly from requesting an advisory opinion on a legal
question relating to a dispute or a situation with regard to which the Security Council is exercising
its responsibilities?
The answer to that question is “no”: the Court has systematically considered that an advisory
opinion request by the General Assembly is not a “recommendation” within the meaning of Article
12.
“24. In the present proceedings, it was suggested that, since the Security Council was seised of the
situation in Kosovo, the effect of Article 12, paragraph 1, was that the General Assembly’s request
for an advisory opinion was outside its powers under the Charter and thus did not fall within the
authorization conferred by Article 96, paragraph 1. As the Court has stated on an earlier occasion,
however, “[a] request for an advisory opinion is not in itself a ‘recommendation’ by the General
Assembly ‘with regard to [a] dispute or situation’” (Legal Consequences of the Construction of a
Wall in the Occupied Palestinian Territory, Advisory Opinion, I.C.J. Reports 2004 (I), p. 148, para.
25).
Accordingly, while Article 12 may limit the scope of the action which the General Assembly may
take subsequent to its receipt of the Court’s opinion (a matter on which it is unnecessary for the
Court to decide in the present context), it does not in itself limit the authorization to request an
advisory opinion which is conferred upon the General Assembly by Article 96, paragraph 1 (ICJ,
Kosovo, advisory opinion, 22 July 2010, ICJ Reports, para. 24, p. 414).
When a request is addressed to the Court, the Registrar gives notice of it to all States entitled to
appear before the Court (see below, jurisdiction ratione personae). International organizations
considered by the Court "as likely to be able to furnish information on the question" are also
notified (Article 66, Statute). The Court has authorized Palestine to present its views on the question
raised by the General Assembly about the legal consequences of the construction of a wall in the
Occupied Palestinian Territory, in light of the fact that Palestine had at the time a special status of
observer at the General Assembly and was co-sponsor of the resolution requesting the advisory
opinion (ICJ, Legal Consequences of the Construction of a Wall in the Occupied Palestinian
Territory, advisory opinion, 9 July 2004, ICJ Reports, p. 141, para. 4; see also the procedural
Order of 19 December 2003). The authors of the declaration of independence with respect to
Kosovo were also authorized to present their views to the Court (ICJ, Accordance with international
law of the unilateral declaration of independence in respect of Kosovo, advisory opinion, 22 July
2010, ICJ Reports, para. 3, p. 408 and procedural Order of 17 October 2008). By the publicity
given to them, advisory opinion proceedings have a distinct public interest aspect.
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If the Court is duly seized of a request and has therefore jurisdiction, it may interpret the question
posed and depart from its language if it finds that it was not adequately formulated (ICJ,
Kosovo, advisory opinion, 22 July 2010, ICJ Reports, paras. 49-50, p. 423).
Furthermore, even if it is duly seized so as to have jurisdiction, the Court may nevertheless decide to
decline to deliver an opinion on the legal question submitted to it if it finds that "compelling
reasons" require not to exercise its advisory jurisdiction:
29. The fact that the Court has jurisdiction does not mean, however, that it is obliged to exercise it:
“The Court has recalled many times in the past that Article 65, paragraph 1, of its Statute,
which provides that ‘The Court may give an advisory opinion . . .’ (emphasis added), should be
interpreted to mean that the Court has a discretionary power to decline to give an advisory opinion
even if the conditions of jurisdiction are met.” (Legal Consequences of the Construction of a Wall in
the Occupied Palestinian Territory, Advisory Opinion, I.C.J. Reports 2004 (I), p. 156, para. 44.)
The discretion whether or not to respond to a request for an advisory opinion exists so as to protect
the integrity of the Court’s judicial function and its nature as the principal judicial organ of the
United Nations (Status of Eastern Carelia, Advisory Opinion, 1923, P.C.I.J., Series B, No. 5, p.
29;Application for Review of Judgement No. 158 of the United Nations Administrative Tribunal,
Advisory Opinion, I.C.J. Reports 1973, p. 175, para. 24; Application for Review of Judgement No.
273 of the United Nations Administrative Tribunal, Advisory Opinion, I.C.J. Reports 1982, p. 334,
para. 22; and Legal Consequences of the Construction of a Wall in the Occupied Palestinian
Territory, Advisory Opinion, I.C.J. Reports 2004 (I), pp. 156-157, paras. 44-45).
30. The Court is, nevertheless, mindful of the fact that its answer to a request for an advisory
opinion “represents its participation in the activities of the Organization, and, in principle, should
not be refused (Interpretation of Peace Treaties with Bulgaria, Hungary and Romania, First Phase,
Advisory Opinion, I.C.J. Reports 1950, p. 71; Difference Relating to Immunity from Legal Process
of a Special Rapporteur of the Commission on Human Rights, Advisory Opinion, I.C.J. Reports
1999 (I), pp. 78-79, para. 29; Legal Consequences of the Construction of a Wall in the Occupied
Palestinian Territory, Advisory Opinion, I.C.J. Reports 2004 (I), p. 156, para. 44). Accordingly, the
consistent jurisprudence of the Court has determined that only “compelling reasons” should lead
the Court to refuse its opinion in response to a request falling within its jurisdiction (Judgments of
the Administrative Tribunal of the ILO upon Complaints Made against Unesco, I.C.J. Reports 1956,
p. 86;Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory,
Advisory Opinion, I.C.J. Reports 2004 (I), p. 156, para. 44).” (ICJ, Accordance with international
law of the unilateral declaration of independence in respect of Kosovo, advisory opinion, 22 July
2010, paras. 29-30, p. 415-416)
- “Compelling reasons” to decline the exercise of jurisdiction

So far, the Court has never found such “compelling reasons” to exist.
Ø It ruled that neither the political motives of the States that sponsored the request, nor the
political consequences of its opinion, nor its legal effect could constitute such reasons.
As noticed above, the fact that the request was addressed by the General Assembly rather than by
Security Council does not deprive the Court from its jurisdiction, but it could, in certain
circumstances and in light of the respective activities of the two organs, be a ground to find the
existence of a compelling reason not to exercise its advisory jurisdiction (see Ibid., paras. 36-45).
Furthermore, and because “advisory jurisdiction is not a form of judicial recourse for States” (Ibid.,
para. 33), the Court could also decline to respond to a request for an opinion if it leads the Court to
decide on a pending dispute between States. However, Article 106 of the Rules stipulates that “[i]f
the request for advisory opinion relates to a legal question actually pending between two or more
States, the views of those States shall first be ascertained”. Because a “legal question actually
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pending” could be very close to being a dispute between States, the controversial nature of a
question submitted to the Court is not, as such, to be considered as a compelling reason that should
lead the Court to refuse to respond to the request.
- The purpose and legal authority of advisory opinions
After having stated that “advisory jurisdiction is not a form of judicial recourse for States”, the
Court added:
“but [it is] the means by which the General Assembly and the Security Council, as well as other
organs of the United Nations and bodies specifically empowered to do so by the General Assembly
in accordance with Article 96, paragraph 2, of the Charter, may obtain the Court’s opinion in
order to assist them in their activities. The Court’s opinion is given not to States but to the organ
which has requested it” (ICJ, Accordance with international law of the unilateral declaration of
independence in respect of Kosovo, advisory opinion, 22 July 2010, para. 33, p. 417)
As their name indicates, advisory opinions are not binding, not even on the organ which requested
it.
However, because the Court delivers a legally reasoned opinion, it carries with it all the
authority that is entrusted with the principal judicial organ of the United Nations. Besides, the organ
having requested the opinion will usually act upon the opinion of the Court.
Ø For instance, following the advisory opinion of 9 July 2004 on the Legal Consequences of
the Construction of a Wall in the Occupied Palestinian Territory, the General Assembly
established the United Nations Register of Damage Caused by the Construction of the Wall
in the Occupied Palestinian Territory (UNRoD) under resolution A/RES/ES-10/17 of 24
January 2007.
ICJ jurisdiction: access to the court
In contrast to its responsibilities under its advisory jurisdiction, the Court settles disputes under its
contentious jurisdiction.
In order to have jurisdiction to settle the dispute that has been submitted to it, the Court must be
satisfied that two fundamental conditions are met:
1) First, the dispute must exist between subjects of international law that have access to the
Court, that may appear before it.
This is the issue of locus standi, or jurisdiction ratione personae.
2) Second, if the parties to the dispute have access to the Court and standing before it, the
Court will only have jurisdiction to settle their dispute if they have both consented to its
jurisdiction.
And this is the issue of jurisdiction ratione materiae: both claimant and respondent must
have accepted that the object of the dispute be submitted to the ICJ for adjudication through
a binding decision.
In other words, to become parties to a contentious case before the Court, States must have access to
it and they must also accept its jurisdiction.
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- Jurisdiction ratione personae (locus standi)

o States parties to the Statute of the Court
As stated under Article 93 of the UN Charter and Article 35 of the ICJ Statute, the Court is open
to States.
The contentious jurisdiction of the Court does not extend to disputes between other subjects of
international law. And notably, international organizations cannot be parties to disputes before the
Court. Neither does the Court judge individuals, nor is it entitled to enquire about complaints
lodged by individuals or groups of individuals or any other non-State entity against States for
instance.
Furthermore, the disputing States must both be party to the Statute of the Court.
Since the member States of the UN are ipso facto parties to the Statute, they all have locus standi
before the Court and they have access to it. Put differently, access is automatic for UN member
States.
States that are not members of the UN may become party to the Statute “on conditions to be
determined in each case by the General Assembly upon the recommendation of the Security
Council”, and this is Article 93, para. 2 of the Charter.
Ø And this has been the case for Japan, Liechtenstein, San Marino, Switzerland and Nauru
before those States became members of the UN.
If a State is neither a member of the UN, nor a party to the ICJ Statute, it may nevertheless have
access to the Court under the conditions laid down in Resolution 9 adopted by the Security Council
in 15 October 1946, pursuant to Article 35, paragraph 2, of the Statute.
o Not a matter of consent, but a statutory issue
Jurisdiction ratione personae is not a matter of consent by the disputing States, but it is a statutory
issue that the Court may examine ex officio, even if none of the disputing parties have raised any
objection in that regard.
And furthermore, jurisdiction ratione personae logically precedes the question of consent: it is only
of States have access to the Court that they may consent to its jurisdiction. This has been made clear
by the Court in several cases, and notably in the judgment of February 2007 in the case concerning
the Application of the Convention on the Prevention and Punishment of the Crime of Genocide, a
case between Bosnia and Serbia.
Finally, jurisdiction ratione personae must, as a matter of principle, exist on the day the dispute is
submitted to the Court. This is a general rule: jurisdiction, be it ratione personae or materiae, must
normally be assessed on the day of the filing of the act instituting proceedings.
Ø However, in the Croatia v. Serbia case, the Court has exceptionally accepted that the
jurisdiction ratione personae condition be fulfilled at the time of the judgment. The
Court came to such conclusion on the basis of the particular circumstances of the case and
the requirement of a sound administration of justice.
In that case, indeed, Croatia filed an application against the Federal Republic of Yugoslavia
in July 1999, for alleged breaches of the Genocide convention. At that time, in July 1999,
the Federal Republic of Yugoslavia pretended to continue the legal personality of the
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Socialist Federal Republic of Yugoslavia, which was a founding member State of the UN in
1945. This continuity claim stood in sharp contrast with the situation of the other States that
emerged from the dismantlement of the former Yugoslavia, which were all considered as
new successor States. And as a result, the continuity claim by the Federal Republic of
Yugoslavia was not accepted by the international community. When elections took place in
Serbia and when president Kostunica took over from president Milosevic, one of the first
foreign policy decisions he took was to apply for UN membership. And the Federal
Republic of Yugoslavia became a new member State of the UN on 1st November 2000. This
meant that the Federal Republic of Yugoslavia had relinquished its continuity claim. And
also, logically, its accession to the UN meant that prior to that date, the Federal Republic of
Yugoslavia had not been a party to the ICJ Statute.
On the date Croatia had filed its case, the Federal Republic of Yugoslavia was not a party to
the Statute and could therefore not have been validly attracted then before the Court as
respondent in a case. In other words, the Court was lacking jurisdiction ratione personae on
the day of the Croatian application.
However, the Court did not decline its jurisdiction. Why is this? The Court took note of the
fact that, on the day of its judgment in 2008, both Croatia and Serbia – Serbia continuing the
personality of the Federal Republic of Yugoslavia when Montenegro became independent in
2006 – both States were now parties to the Statute. In other words, the previously unmet
condition governing the Court’s jurisdiction was subsequently satisfied. The Court said that
in such a situation, its jurisdiction ratione personae had to be assessed with some flexibility.
The Court considered that declining jurisdiction in such a situation would be contrary to the
interests of the sound administration of justice as it would compel Croatia to begin the
proceedings anew. And therefore, the Court ruled that despite the fact that Serbia had no
standing before it on the day the proceedings began, it retained its jurisdiction because on
the date it ruled over it, the ratione personae condition, which was previously unmet, was
now fulfilled.
Ø In the Bosnia v. Serbia case (Application of the Convention on the Prevention and
Punishment of the Crime of Genocide), the Court had found in 1996 that it had jurisdiction
to hear the case.
At that time, 1996, the Court did not examine its jurisdiction ratione personae. That
judgment on jurisdiction was res judica: it was definitive and could not be overturn later,
except by way of revision (a specific procedure that we shall turn to later in the course). But
the Court declined in 2003 to revise its jurisdiction judgment of 1996.
But when the case came to the merits in 2007, Serbia claimed again that the proceedings
were not properly instituted because it was clear then that it was not a UN member State
when Bosnia filed its application in 1993.
However, the Court rejected such claim and the reason for this was that its jurisdiction had
been retained under the 1996 judgment and that such judgment was final on the matter: the
Court could not depart from a judgment having the force of res judica.
Those two cases should also be discussed in light of other cases brought this time by Serbia against
ten member States of NATO for the aerial bombings during the war in Kosovo. In those cases, the
Court declined jurisdiction in 2004 for the reason that the proceedings were instituted by a State
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that was not party to the ICJ Statute at the time of the applications. And of course, it might be
difficult to reconcile those different cases and their respective outcomes might be seen as result-
oriented…
But because of the introductory character of this course, we shall stop here on the issue of
jurisdiction ratione personae. It has only been a problem in the case-law of the Court on very rare
occasions and because the vast majority of States are now members of the UN, it is not very likely
to be a problem in the future.
- Jurisdiction ratione materiae
Invoking the responsibility of a State and being actually able to bring a claim before an
international court or tribunal are two different things (see Week 6), and the latter is only possible if
consent to the jurisdiction exists.
Consenting to the jurisdiction of the ICJ, i.e. accepting that the Court entertains the dispute and
takes a binding decision about it, is the second, and ratione materiae, condition that must be met for
the Court to have jurisdiction.
Compared to many other international courts and tribunals, the specificity of the jurisdiction ratione
materiae of the ICJ is that it is not specialized in any field or sub-field of international law: the
Court has a general jurisdiction and, provided that the parties to the dispute have accepted that it
be settled by the Court, the Court will have jurisdiction to adjudicate upon it, whatever the subject-
matter or the sub-field of international law relevant.
Ø Therefore, the dispute can be about for instance the use of force, territorial or maritime
borders, environmental protection, human rights, investments, etc.
But because consent to the ICJ jurisdiction is often phrased in such a way that it is conditioned upon
the unavailability of any other dispute settlement mechanism, if other specialized courts or tribunal
are available, the Court’s jurisdiction will not be established.
o Fundamental requirement (no exception)
There is no exception to the requirement that both parties must have consented to the jurisdiction of
the Court, and even the character of the norm allegedly breached does not exempt from such
fundamental requirement.
Ø As the Court in 2006 stressed in a case between the DRC and Rwanda, the fact that a dispute
relates to compliance with a peremptory norm of general international law, that is a norm of
jus cogens, like the prohibition of genocide, this fact “cannot of itself provide a basis for the
jurisdiction of the Court to entertain that dispute. Under the Court’s Statute, that jurisdiction
is always based on the consent of the parties”.
o Expression of consent
How do States express their consent to the jurisdiction of the Court?
There are four different means available to States in order to accept the jurisdiction of the ICJ.
We are already familiar with two of those means, as they are common to arbitration and to ICJ
proceedings: those are special agreements and compromissory clauses, that are also called
jurisdictional clauses.
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The two other ways to express consent are forum prorogatum and the optional clause, which is
specific to the ICJ.
§ Special agreements
Both special agreements and forum prorogatum are ways to express consent to the ICJ jurisdiction
after a dispute has already arisen and exists.
As recalled in the section about arbitration, States are sometimes unable or, even, unwilling, to
accommodate their respective claims and positions. They cannot reach a comprise, they cannot find
a negotiated settlement.
However, disputing States may nevertheless agree, because they disagree on substance, to submit
their dispute to the ICJ.
Article 36, paragraph 1, of the Statute of the Court states that “The jurisdiction of the Court
comprises all cases which the parties refer to it and all matters specially provided for in the Charter
of the United Nations or in treaties and conventions in force”. Parties to a dispute are indeed always
free to refer their dispute to the Court for adjudication, provided of course that those parties have
access to the Court under the ratione personae requirement.
When States decide to refer an existing dispute to the Court, they draft the terms of what is called a
special agreement, in which the subject-matter of the dispute and the identity of the parties to it are
indicated. The special agreement is then notified to the Court and the jurisdiction of the Court will
be limited to what has been agreed by the parties in the special agreement.
It is easy to spot if a case has been submitted to the Court by special agreement because the case
will not be referred as “State A v. State B” where “v.” stands for “versus”, but it will be referred to
as “State A / State B”: there is a graphic difference between cases submitted by special agreement
(/) or by unilateral application (v.), as if cases brought by special agreements were somehow less
contentious than cases brought by applications. Sometimes, the very existence of a special
agreement is disputed and the case is for that reason noted as a really contentious case (v.).
Ø In the Aegean Sea Continental Shelf case, Greece argued that Turkey had consented to
submit their dispute to the ICJ by a joint communiqué following a meeting between the two
Prime Ministers in Brussels in May 1975.
The Court said that there was no specific form for a special agreement to exist, and that a
joint communiqué could incorporate a special agreement, but that, in light of the terms and
the circumstances surrounding the joint communiqué, the Brussels communiqué “was not
intended to, and did not, constitute an immediate commitment by the Greek and Turkish
Prime Ministers, on behalf of their respective Governments, to accept unconditionally the
unilateral submission of the [...] dispute to the Court”. This is a judgment of 1978.
Ø In a case between Qatar and Bahrain, the Court considered that the exchange of letters
between the King of Saudi Arabia and the two Amir’s of both countries in 1987, together
with the “Minutes” signed in Doha by the Foreign Affairs Ministers of the three countries
about three years later, constituted international agreements, created rights and obligations
for the Parties under which they had undertaken to submit to the Court the whole dispute
between them relating to the maritime delimitation and some territorial questions. And this
is a judgment of 1994.
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Sometimes, or rather quite often, it is not the existence of the special agreement that is disputed, but
the meaning of its terms. The Court is then called to interpret a special agreement, which is very
much like a bilateral treaty with a specific object and purpose.
Ø This happened already in the very first case submitted to the Court, in 1949, the Corfu
Channel case.
The case was first submitted by an Application of the United Kingdom, and later then by a
special agreement between the UK and Albania. Albania contested that the Court could
decide on the amount of compensation it had to pay for the damages caused to the British
Navy ships because the special agreement only mentioned the issue of deciding on the
responsibility for the naval incident that occurred in the Corfu Channel.
However, taking argument of the principle of ‘effet utile’ in the interpretation of
international agreements, the Court said that because it found Albania responsible for the
incident, it also had jurisdiction to assess the damage.
A special agreement allows thus the parties to confer jurisdiction to the Court and they may define
rather freely the limits of such jurisdiction.
However, a special agreement cannot allow the parties to the dispute to alter the Court’s judicial
function. This is because the limits of the judicial function of the Court are defined by the Statute
itself. Therefore, the judicial function of the Court is not at the disposal of the parties, not even by
agreement between them. As the Court stressed in 2013 in the Burkina Faso/Niger case, the limits
to the judicial function “are mandatory for the parties just as for the Court itself”.
One essential element in that regard is that the Court has been instituted to resolve existing
disputes between States, so that the existence of a dispute is, as the Court put it in the Nuclear Tests
cases, “the primary condition for the Court to exercise its judicial function”. If there is no dispute
between the parties about a point of fact or a point of law, the Court has no jurisdiction over it and
the parties cannot confer such power of jurisdiction to the Court by agreement between them.
Therefore, as the Court said in Burkina Faso/Niger, a party may not request from the Court, on the
basis of the special agreement, that the Court includes in the operative part of its judgment an
agreement that exists between the parties. The purpose of such inclusion would be to give the force
of a Court’s judgment to the agreement of the parties. But because the operative parts of the
judgments of the Court contain the decisions of the Court over existing dispute, it would be contrary
to the Court’s function to do so because, as a result of the parties’ agreement, no decision of the
Court over a dispute is needed.
§ Forum prorogatum
It is also a way to consent to the jurisdiction of the Court when a dispute already exists.
Special agreements must, as a matter of principle, be concluded prior to the moment the Court is
seized of a particular existing dispute.
It is however possible that one State submits a dispute to the Court in the absence of any basis of
jurisdiction, before the potential respondent State has agreed to the jurisdiction of the Court. The
Court will not have jurisdiction to hear the case on that moment, but the registry will, according to
Article 38, paragraph 5 of the Rules, the registry transmits the application to the State against
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which it is made. It is then up to that State to consent, or not, to the jurisdiction of the Court for the
purpose of that case. Pending such consent, the case is not put on the General List of the Court.
When a State against which the application was made consents to the Court’s jurisdiction, it
becomes respondent in the case and the Court’s jurisdiction extends to its consent.
Ø Usually, such consent is explicit, but one can for instance imagine that it could result from
the filing of a written pleading or from willingly taking part in the procedure.
This way of accepting the Court’s jurisdiction has been sucessfully used in two cases initiated by,
respectively, Djibouti and Congo against France, the latter case being discontinued at the request
of the Congo.
§ Compromissory clause
The reference in Article 36, paragraph 1, of the ICJ Statute to the jurisdiction of the Court in “all
matters specially provided for in the Charter of the United Nations” is misleading. Indeedn, in
1945, it had been envisaged that the Charter would confer compulsory jurisdiction to the ICJ
between UN member States on certain matters, but that option was later turned down. Nevertheless,
the final version of the Statute kept that possibility open. This incongruity is unfortunate, but the
important point is that it has no practical impact. Indeed, as the ICJ made clear, despite the wording
of Article 36, paragraph 1, that “the United Nations Charter contains no specific provision of itself
conferring compulsory jurisdiction on the Court” (ICJ, Aerial Incident of 10 August 1999
(Pakistan v. India), 21 June 2000, ICJ Reports, para. 48, p. 32).
However, Article 36, paragraph 1, opens the jurisdiction of the Court to “all matters specially
provided for [...] in treaties and conventions in force”: as with arbitration, States may
conclude treaties by which they agree in advance that should a dispute arise between them, any of
them can submit it to the ICJ for decision. Very often, compromissory (or jurisdictional) clauses are
inserted in treaties in order to settle disputes relating to the interpretation or application of the
provisions of the treaty containing the clause. In such a case, the subject-matter of the dispute that
can be submitted to the ICJ for adjudication must relate to one of the treaty provisions; the dispute
must fall within the subject-matter of the treaty and the Court will not have jurisdiction over matters
that do not fall within the treaty, unless those matters are covered by another instrument conferring
jurisdiction to the Court.
Ø For instance, under the Genocide convention, Bosnia-Herzegovina and Croatia brought
cases against Serbia: the jurisdiction of the Court was limited to alleged breaches of the
Genocide convention, despite the fact that the overall disputes between the parties related to
many other matters, including other alleged international crimes.
Indeed, Article IX of the Genocide Convention reads as follows: “Disputes between the
Contracting Parties relating to the interpretation, application or fulfilment of the present
Convention, including those relating to the responsibility of a State for genocide or for any
of the other acts enumerated in article III, shall be submitted to the International Court of
Justice at the request of any of the parties to the dispute”.
During the negotiation of a treaty, an important issue for the effectiveness of the rights and
obligations contained in the treaty and the dynamics of future diplomatic negotiations about alleged
breaches, is the insertion of a compromissory clause, how such clause should be drafted and
whether reservations can be made about it or not. Absent any specific treaty provision
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prohibiting reservations about the compromissory clause it contains, reservations by which

States parties exclude the compromissory clause from the scope of their consent to the treaty are
usually considered compatible (or, rather, considered not incompatible) with the object and
purpose of the treaty.
Compromissory (or jurisdictional) clauses can also be found in multilateral treaties, the very object
of which is the settlement of disputes. Disputes coming under the ICJ jurisdiction through those
treaties are usually not subject-matter specific, as the treaties are drafted in a very inclusive way:
Ø Under Article XXXI of the American Treaty on Pacific Settlement of 1948 (also known as
the “Pact of Bogota”), 16 members (however, two denunciations have been made, bringing
the numer of State parties down to 14) the Organization of American States have accepted
between them the jurisdiction of the ICJ as compulsory ipso facto and without special
agreement “in all disputes of a juridical nature”.
Ø Under Article 1 of the European Convention for the Peaceful Settlement of Disputes of
1957, 14 members of the Council of Europe have agreed to “submit to the judgement of the
ICJ all international legal disputes which may arise between them”.
Whether inserted in a specific treaty or in a general convention for the pacific settlement of
disputes, compromissory clauses are usually drafted in such a way that they include conditions that
must be met before resorting to the ICJ.
Ø For instance, States may agree to submit their disputes to the ICJ, provided that they have
been unable to settle it by negotiation during a certain period of time, or provided that no
other international court or tribunal has jurisdiction to settle it. Quite often, the clause is
drafted in such a way that the ICJ is the pacific means of last resort.
All those conditions define the jurisdiction ratione voluntatis of the Court and have been considered
as limitations to the consent given to the jurisdiction of the Court: if any of those conditions is not
met, the Court has no jurisdiction. This was rather forcefully made clear by the Court in a case
between Georgia and the Russian Federation.
In the summer of 2008, war erupted between Georgia and Russia. While hostilities were ongoing,
Georgia rushed to the ICJ and submitted to the Court a dispute about alleged breaches by Russia of
the 1965 Convention on the Elimination of All Forms of Racial Discrimination (CERD). Article 22
of the Convention provides for ICJ jurisdiction in the following terms: “Any dispute between two
or more States Parties with respect to the interpretation or application of this Convention, which is
not settled by negotiation or by the procedures expressly provided for in this Convention, shall, at
the request of any of the parties to the dispute, be referred to the International Court of Justice for
decision, unless the disputants agree to another mode of settlement”.
Upon Georgia’s request, the Court ordered provisional measures to both Parties, after having found
it had prima facie jurisdiction to entertain the merits of the case (ICJ, Application of the
International Convention on the Elimination of all Forms of Racial Discrimination (Georgia v.
Russian Federation), Provisional Measures, Order of 15 October 2008, ICJ Reports, p.353 – see
below ICJ proceedings on provisional measures).
Before addressing the merits of the claims, Russia raised preliminary objections and contested the
jurisdiction of the Court. The Court rejected Russia’s first objection according to which no dispute
existed about racial discrimination between the parties on the day the proceedings were instituted
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by Georgia: the Court ruled that a dispute about racial discrimination existed already between the
parties when Georgia filed its application. However, the Court upheld Russia’s second objection
and ruled it had no jurisdiction to entertain the dispute. Russia’s second objection related to the
ratione voluntatis conditions found in Article 22 of the CERD. Russia asserted that Article 22
contains two procedural preconditions, namely that before seizing the Court, States must (i) have
attempted to resolve the dispute by negotiations and (ii) that they must also have attempted to
resolve it by resorting to the CERD Committee established under the Convention. The Court
accepted Russia’s objection according to which Georgia failed to seek to settle the dispute through
negotiations; therefore, the Court decided it had no jurisdiction to entertain the dispute raised by
Georgia. The Court considered that it was not necessary to decide whether the failure to submit the
dispute to the CERD Committee was an alternative, or cumulative, procedural precondition – this
question remains unresolved in light of the ambiguity of Article 22 which uses the conjunction
“or”. On the notion of procedural preconditions, and on prior negotiations as a condition of consent
to ICJ jurisdiction, the Court said this:
“130. [...] the Court is called upon to determine whether a State must resort to certain procedures
before seising the Court. In this context, it notes that the terms “condition”, “precondition”,
“prior condition”, “condition precedent” are sometimes used as synonyms and sometimes as
different from each other. There is in essence no difference between those expressions save for the
fact that, when unqualified, the term “condition” may encompass, in addition to prior conditions,
other conditions to be fulfilled concurrently with or subsequent to an event. To the extent that the
procedural requirements of Article 22 may be conditions, they must be conditions precedent to the
seisin of the Court even when the term is not qualified by a temporal element.
131. [...], it is not unusual in compromissory clauses conferring jurisdiction on the Court and
other international jurisdictions to refer to resort to negotiations. Such resort fulfils three
distinct functions.
In the first place, it gives notice to the respondent State that a dispute exists and delimits the scope
of the dispute and its subject-matter.
[...]
In the second place, it encourages the parties to attempt to settle their dispute by mutual
agreement, thus avoiding recourse to binding third-party adjudication.
In the third place, prior resort to negotiations or other methods of peaceful dispute settlement
performs an important function in indicating the limit of consent given by States. The Court
referred to this aspect reflecting the fundamental principle of consent in the Armed Activities case
in the following terms :
“[The Court’s] jurisdiction is based on the consent of the parties and is confined to the extent
accepted by them . . . When that consent is expressed in a compromissory clause in an
international agreement, any conditions to which such consent is subject must be regarded as
constituting the limits thereon.” (Armed Activities on the Territory of the Congo (New Application:
2002) (Democratic Republic of the Congo v. Rwanda), Jurisdiction and Admissibility, Judgment,
ICJ Reports 2006, p. 39, para. 88 ; emphasis added.)
[...]
133. Leaving aside the question of whether the two modes of peaceful resolution [i.e. negotiations
and resorting to the CERD Committee] are alternative or cumulative, the Court notes that Article
22 of CERD qualifies the right to submit “a dispute” to the jurisdiction of the Court by the words
“which is not settled” by the means of peaceful resolution specified therein. Those words must be
given effect.
[...]
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By interpreting Article 22 of CERD to mean, as Georgia contends, that all that is needed is that, as
a matter of fact, the dispute had not been resolved (through negotiations or through the
procedures established by CERD), a key phrase of this provision would become devoid of any
effect.
134. Moreover, it stands to reason that if, as a matter of fact, a dispute had been settled, it is no
longer a dispute. Therefore, if the phrase “which is not settled” is to be interpreted as requiring
only that the dispute referred to the Court must in fact exist, that phrase would have no usefulness.
Similarly, the express choice of two modes of dispute settlement, namely, negotiations or resort
to the special procedures under CERD, suggests an affirmative duty to resort to them prior to the
seisin of the Court. Their introduction into the text of Article 22 would otherwise be meaningless
and no legal consequences would be drawn from them contrary to the principle that words should
be given appropriate effect whenever possible.” (ICJ, Application of the International Convention
on the Elimination of All Forms of Racial Discrimination (Georgia v. Russian Federation),
Preliminary Objections, 1 April 2011, ICJ Reports, pp. 124-126)
The decision of the Court on this point was however criticized by a significant minority of the
judges of the Court, notably in light of the facts of the case and the ongoing hostilities between the
parties, during which it would have been impossible to negotiate about alleged breaches of the
Convention (see the dissenting and separate opinions appended to the judgment).
§ Optional clause
The declarations by which States recognize as compulsory the jurisdiction of the Court are called
optional clauses (Article 36, paragraph 2, of the ICJ Statute).
Under paragraph 4 of Article 36, optional clauses must be deposited with the Secretary-General of
the United Nations, while declarations made under the PCIJ Statute that are still in force are
deemed, under paragraph 5 of Article 36, to be optional clauses for the purpose of the ICJ.
Optional clauses are a specific feature of the International Court of Justice, and previously of the
Permanent Court of International Justice. They represent a compromise between a system of
compulsory jurisdiction for all States bound by the Statute and a system in which being party to the
Statute is not sufficient to establish a system of compulsory jurisdiction and where the consent of
the disputing States is needed to confer jurisdiction to the Court.
Under the optional clause mechanism, States are able to accept as compulsory and for themselves
the jurisdiction of the Court. Such acceptance is made unilaterally, by a declaration. If such
unilateral declaration meets a similar declaration by another State, a jurisdictional link exists
between those two States and the jurisdiction of the Court will be compulsory for them. So, the
optional clause mechanism enables States that wish a system of compulsory jurisdiction to have
such a system.
In a case between Spain and Canada about the arrest on the high seas of a fishing vessel flying the
flag of Spain, the Court elaborated on the nature of optional clauses and said this:
“A declaration of acceptance of the compulsory jurisdiction of the Court, whether there are
specified limits set to that acceptance or not, is a unilateral act of State sovereignty.
At the same time, it establishes a consensual bond and the potential for a jurisdictional link with
the other States which have made declarations pursuant to Article 36, paragraph 2, of the Statute,
and ‘makes a standing offer to the other States party to the Statute which have not yet deposited a
declaration of acceptance’”.
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As Article 36, paragraph 2, provides, an optional clause is a declaration that can be made by States
bound by the Statute. States can make such declaration “at any time”, that is even long after having
become bound by the Statute. Such declarations are unilateral acts: they are made by each State
“without special agreement” of any other. States may tailor their acceptance as they wish: they may
accept the jurisdiction of the Court for all disputes, but they may also make certain reservations in
their optional clauses, excluding from the scope of their consent certain type of disputes.
Ø For instance, a State may accept the compulsory jurisdiction of the Court over disputes that
arose after a certain date.
Ø Or it may exclude from its acceptance a certain class of disputes, like territorial or maritime
delimitations.
Ø Or it may condition its acceptance on the unavailability of any other settlement mechanism,
etc.
Furthermore, such unilateral declarations are made so as to recognize the jurisdiction of the Court
as compulsory ipso facto and the jurisdiction of the Court will exist “in relation to any other state
accepting the same obligation”. Those words are of fundamental importance because they mean that
in order for the Court to have jurisdiction, two optional clauses must meet: the jurisdiction of the
Court will be compulsory for the State making the optional clause, but only “in relation to any other
state accepting the same obligation”. And jurisdiction will exist only in so far as “the same
obligation” to submit disputes to the ICJ has been accepted on both sides.
Ø State A accepts the jurisdiction of the Court for all purposes, except, for instance, in relation
to disputes relating to maritime delimitation. States B accepts the jurisdiction of the Court
without any limit or reservation.
Now, State A and B are adjacent States and a dispute arises about the maritime delimitation
between them.
Is State B entitled to bring a case against State A at the ICJ about that maritime delimitation
dispute? Because State A excluded maritime delimitations disputes from its unilateral
acceptance of the Court’s jurisdiction, the answer is obvious: the Court will lack
jurisdiction.
But what about if State A now is the claimant in that case? Could State B, who is now
respondent, take argument of the fact that State A had not accepted the Court’s jurisdiction
over maritime delimitation dispute and ask the Court to decline its jurisdiction? Or could
State A reply that because it is the claimant, it is free not to avail itself of its own reservation
that exists in its own optional clause and that by submitting its claim, it implicitly renounced
to its reservation? The answer to that question is to be found in the words of Article 36,
paragraph 2: when two States have unilaterally accepted the jurisdiction of the Court, such
jurisdiction exists between them to the extent of “the same obligation” accepted by both of
them.
In other words, and to use a math vocabulary, the jurisdiction of the Court is limited to the lowest
common denominator: the Court’s jurisdiction exists in so far as the object of the dispute falls
within the optional clause of the claimant and of the respondent. So, as much as the respondent may
rely on its own reservations and exclusions inserted in its own optional clause, it can also rely on
those of the claimant because the jurisdiction of the Court is reduced to “the same obligation”
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accepted by both parties. States are thus free to limit their unilateral acceptance of the compulsory
jurisdiction of the Court, that is to insert reservations in their optional clauses. And the effect of
such reservations will be reciprocal in the sense that the subject-matter of the dispute will have to
fall within the acceptance of the Court jurisdiction as expressed by both disputing States.
Furthermore, as paragraph 3 of Article 36 states, their declarations “may be made unconditionally
or on condition of reciprocity on the part of several or certain states, or for a certain time”. This
means that a State could say that it accepts the jurisdiction of the Court, provided that such or such
other State does likewise, or it could also accept the jurisdiction for, for instance, a period of five
years renewable. The reciprocity which is here at stake is not the same reciprocity as the one which
is inherent in the optional clause mechanism. Here, the unconditional or conditioned character of
the optional clause relates to the operation of the optional clause itself: the State can condition the
entry into force of its acceptance to the acceptance by another named State.
Among the various conditions and reservations made by States when they unilaterally accept the
jurisdiction of the Court, one of them has raised some concern. It is called the “automatic
reservation”. Many States that have accepted the competence of the Court have excluded disputes
relating to matters that, under international law, are exclusively within their domestic jurisdiction.
Such reservation is valid because the Court’s jurisdiction anyway relates to disputes existing under
international law, and the Court remains free to apply international law to determine whether the
dispute falls exclusively within domestic jurisdiction or not. However, some States have drafted the
exclusion of domestic jurisdiction differently and they said that it was up to them to determine
whether an issue related to their domestic jurisdiction or not. Such phrasing has been called the
“automatic reservation” in an optional clause and it has given rise to many debates and
controversies as its legality is doubtful.
However, in the Norwegian Loans case, the Court has given effect to such a reservation in 1957.
In that case, the Court found it had no jurisdiction to adjudicate upon the dispute brought by France
against Norway concerning the payment of various Norwegian loans issued in France. The Court
said that Norway was entitled to avail itself, as a way of reciprocity, of the automatic reservation
contained in the French optional clause. Thus, the Court gave effect to the French automatic
reservation. The judgment of the Court gave rise to a very famous separate opinion by judge
Hersch Lauterpacht who criticized the validity of the automatic reservation, and considered that
because the automatic reservation cannot be severed from the French optional clause and was an
essential element of it, the French optional clause as a whole was contrary to the Statute and invalid.
Because optional clauses are unilateral acts of State sovereignty, the rules on treaty interpretation
only apply analogously, that is to the extent that they are compatible with the sui generis character
of those acts. In the Spain v. Canada case mentioned supra, the Court said that the declaration has
to be interpreted as a whole, as it stands, having due regard to the words used and “to the intention
of the State concerned at the time when it accepted the compulsory jurisdiction of the Court”. The
Court added:“The intention of a reserving State may be deduced not only from the text of the
relevant clause, but also from the context in which the clause is to be read, and an examination of
evidence regarding the circumstances of its preparation and the purposes intended to be served”.
More recently, in a case between Australia and Japan about whaling in the Antarctic, the Court
applied again those principles to interpret Australia’s optional clause.
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Acceptance of ICJ jurisdiction in practice

The list of States having accepted the jurisdiction of the ICJ by optional clauses is to be found on
the Website of the Court. Out of 193 UN member States, about 71 of them have made a declaration
pursuant to Article 36, paragraph 2. The only permanent member of the Security Council still
having an optional clause is the United Kingdom. France terminated its optional clause after the
Nuclear Tests cases, and the US after the Court declared it had jurisdiction in the Nicaragua case.
The USSR (or the Russian Federation today) and China have never issued optional clauses.
About three hundred treaties contain compromissory clauses referring disputes to the ICJ. Some
treaties were concluded at the time of the PCIJ, but, as provided under the transition clause
contained in Article 37 of the ICJ Statute, the consent given to the PCIJ jurisdiction under those old
treaties entails consent to the jurisdiction of the ICJ.
Ø For more examples of special agreements, compromissory clauses or optional clauses,
please refer to the model clauses and templates in the “Handbook on accepting the
jurisdiction of the International Court of Justice”.
The Handbook has been produced jointly by Switzerland, the Netherlands, Uruguay, the
United Kingdom, Lithuania, Japan and Botswana, together of the United Nations Office of
Legal Affairs. The Handbook intends to support the “efforts of the UN Secretariat to
promote the compulsory jurisdiction of the Court as a peaceful means of settling disputes,
and shows the commitment made to this endeavour by Member States in all regions of the
world”.
ICJ proceedings
Let us turn now to the conduct of proceedings at the ICJ and see a little bit more concretely what
are the various steps, and also the incidents, that may occur along the way, i.e. between the moment
that the Court is seized of a dispute and the moment it delivers its judgment.
- Seizing
The Court is seized of a dispute, either through the notification of a special agreement or through
the filing of an application if the basis of jurisdiction invoked by the claimant State is a
compromissory clause, two optional clauses or an expected consent in case of forum prorogatum.
From that moment onwards, the judicial machinery is set in motion.
- Notification (publicity)
A first procedural step is taken by the registry of the Court: under various provisions of the Statute
and the Rules (the details of which are rather unimportant here), the Registry notifies the Secretary-
General of the UN and the UN member States and other States entitled to appear before the Court.
A special notification is also addressed to States that are parties to multilateral treaties whose
interpretation is in question in the case.
Notified States may also request to receive copies of the written pleadings of the parties.
Furthermore, if that treaty is the constituent instrument of an international organization, or if it has
been adopted within the framework of that organization, such organization will also be notified and
it will receive copies of the written pleadings.
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All this may sound very administrative and purely procedural, but the publicity given in this way to
the case, and the automatic character of such publicity, stand in sharp contrast to arbitral
proceedings. When a dispute is brought before the ICJ, the case is public and it resonates within the
world community. And, as we shall see later, it is because a certain publicity is given to a case that
various types of interventions in the proceedings exist.
- Procedural order
Then, after having ascertained the views of the parties, the Court issues a first procedural order by
which time limits are fixed for the filing of the parties written pleadings.
- Written pleadings
There are usually two rounds of written pleadings:
1) The claimant writes a memorial exposing all its arguments concerning the jurisdiction of the
Court and the merits of its claims, and providing of course all evidence in support of its
case. The respondent is then offered the same amount of time to write in response what is
called a counter-memorial.
2) And then usually, a second round of written pleadings takes place, with the claimant filing a
reply and the respondent filing a rejoinder, in response to the reply.
- Oral pleadings and reading of the parties’ final submissions
When the parties have filed all their written pleadings, oral pleadings take place and, there again,
two rounds of oral pleadings are usually organized.
At the end of the oral pleadings, the agents, that is the official State representatives having usually
the rank of an ambassador, the agents of each disputing State read out their respective final
submissions.
- Deliberation and judgment
Then, the Court begins its deliberation and the judgment is delivered a few months later.
- Non-appearance of respondent: Article 53
If the respondent State does not appear in Court or if it fails to defend its case, the claimant may call
upon the Court to decide in favor of its claim. But before doing so, and as Article 53 of the Statute
states, the Court must however “satisfy itself, not only that it has jurisdiction [...], but also that the
claim is well founded in fact and law”.
This is the procedure in its streamlined form, when no procedural incidents occur. But incidental
proceedings do happen most of the time and they will increase the complexity of the entire process.
Provisional measures
The first incidental proceedings that very often occurs is a request for interim measures of
protection.
Very often, on the same day or a few days later after having filed its case, the claimant addresses to
the Court a written request for the indication of provisional measures. Provisional measures are
regulated under Article 41 of the Statute and Articles 73 to 78 of the Rules.
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- Purpose
The purpose of such provisional measures is the preservation of the rights, pending a judgment on
the merits.
- Conditions
Several conditions must be cumulatively met in order for the Court to indicate provisional
measures:
1) The Court must have prima facie jurisdiction over the merits of the case;
2) A link must exist between the measures requested and the rights protected;
3) Those rights must have a plausible character;
4) There must exist a risk of irreparable prejudice;
5) A condition of urgency must be concretely met.
- Initiative
It is important to note that not only the claimant, but also the respondent, may request the indication
of provisional measures. Furthermore, the Court may indicate such measures on its own initiative,
that is proprio motu, and it may also indicate measures different from those requested, or also
indicate measures to both parties while only one of them had requested measures of protection.
- Binding effect
For a long time, there has been a debate about the binding character of provisional measures. This is
because Article 41 of the Statute states that the Court has “the power to indicate, if it considers that
the circumstances so require, any provisional measures which ought to be taken to preserve the
respective rights of either party”.
However, in a case between Germany and the United States relating to the trial in the US of two
German brothers that did not benefit from consular assistance, the Court made clear in 2001 that the
provisional measures are legally binding on the State on which they are indicated and that such
State incurs international responsibility if it does not comply with the obligations so created (ICJ,
LaGrand (Germany v. United States of America), 27 June 2001).
Provisional measures take the form of an order of the Court. Because it is an order and not a
judgment, provisional measures, despite being binding on the parties, are not res judicata for the
Court: the Court may change the measures ordered or indicate additional measures if the
circumstances change and require new measures.
- Provisional measures in context
By an application of 18 November 2010, Costa Rica instituted proceedings against Nicaragua on
the basis of alleged “incursion into, occupation of and use by Nicaragua’s army of Costa Rican
territory”. Costa Rica also complained of alleged breaches of various treaties. According to Costa
Rica, Nicaragua’s troops were present on its territory close to the mouth of the San Juan River and
were constructing an artificial canal across its territory in order to deviate the course of the San Juan
River in an attempt to unilaterally modify the boundary. Nicaragua rejected those claims and
contented that its troops were acting on its own territory. Costa Rica relied on Article XXXI of the
Pact of Bogota as a basis for the jurisdiction of the Court.
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On the same day it filed its application, Costa Rica submitted a request for the indication of
provisional measures. After having recalled the procedural history of the case, the geographical
context of the dispute and the arguments of the parties, the Court examined whether the
various conditions for the indication of provisional measures were met.
Please read the following excerpts from the Order of 8 March 2011 (note: orders of the Court
indicating provisional measures used to be drafted using “whereas” at the beginning of paragraphs
and sentences; this is no longer the case since 2013):
“Prima Facie Jurisdiction
49. Whereas, the Court may indicate provisional measures only if the provisions relied on by the
Applicant appear, prima facie, to afford a basis on which its jurisdiction could be founded ;
whereas the Court need not satisfy itself in a definitive manner that it has jurisdiction as regards
the merits of the case (see, for example, Questions relating to the Obligation to Prosecute or
Extradite (Belgium v. Senegal), Provisional Measures, Order of 28 May 2009, I.C.J. Reports 2009,
p. 147, para. 40) ;
50. Whereas Costa Rica is seeking to found the jurisdiction of the Court on Article XXXI of the
Pact of Bogotá and on the declarations made by the two States pursuant to Article 36, paragraph
2, of the Statute ; whereas it also refers to a communication sent by the Nicaraguan Minister for
Foreign Affairs to his Costa Rican counterpart dated 30 November 2010, in which the Court is
presented as “the judicial organ of the United Nations competent to discern over” the questions
raised by the present dispute ;
51. Whereas Nicaragua, in the present proceedings, did not contest the jurisdiction of the Court to
entertain the dispute ;
52. Whereas, in view of the foregoing, the Court considers that the instruments invoked by Costa
Rica appear, prima facie, to afford a basis on which the Court might have jurisdiction to rule on
the merits, enabling it to indicate provisional measures if it considers that the circumstances so
require ; whereas, at this stage of the proceedings, the Court is not obliged to determine with
greater precision which instrument or instruments invoked by Costa Rica afford a basis for its
jurisdiction to entertain the various claims submitted to it (see ibid., p. 151, para. 54) ;
Plausible Character of the Rights Whose Protection Is Being Sought and Link between These
Rights and the Measures Requested
53. Whereas the power of the Court to indicate provisional measures under Article 41 of the
Statute has as its object the preservation of the respective rights of the parties pending its
decision; whereas it follows that the Court must be concerned to preserve by such measures the
rights which may subsequently be adjudged by the Court to belong to either party ; whereas,
therefore, the Court may exercise this power only if it is satisfied that the rights asserted by a party
are at least plausible (ibid., p. 151, paras. 56-57) ;
54. Whereas, moreover, a link must exist between the rights which form the subject of the
proceedings before the Court on the merits of the case and the provisional measures being sought
(see, for example, ibid., p. 151, para. 56);
Plausible Character of the Rights Whose Protection Is Being Sought
55. Whereas the rights claimed by Costa Rica and forming the subject of the case on the merits
are, on the one hand, its right to assert sovereignty over the entirety of Isla Portillos and over the
Colorado River and, on the other hand, its right to protect the environment in those areas over
which it is sovereign; whereas, however, Nicaragua contends that it holds the title to sovereignty
over the northern part of Isla Portillos, that is to say, the area of wetland of some 3 square
kilometres between the right bank of the disputed caño, the right bank of the San Juan River up to
its mouth at the Caribbean Sea and the Harbor Head Lagoon (hereinafter the “disputed
territory”), and whereas Nicaragua argues that its dredging of the San Juan River, over which it
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has sovereignty, has only a negligible impact on the flow of the Colorado River, over which Costa
Rica has sovereignty ;
56. Whereas, therefore, apart from any question linked to the dredging of the San Juan River and
the flow of the Colorado River, the rights at issue in these proceedings derive from the sovereignty
claimed by the Parties over the same territory [...] ; and whereas the part of Isla Portillos in
which the activities complained of by Costa Rica took place is ex hypothesi an area which, at the
present stage of the proceedings, is to be considered by the Court as in dispute [...] ;
57. Whereas, at this stage of the proceedings, the Court cannot settle the Parties’ claims to
sovereignty over the disputed territory and is not called upon to determine once and for all
whether the rights which Costa Rica wishes to see respected exist, or whether those which
Nicaragua considers itself to possess exist ; whereas, for the purposes of considering the Request
for the indication of provisional measures, the Court needs only to decide whether the rights
claimed by the Applicant on the merits, and for which it is seeking protection, are plausible ;
58. Whereas it appears to the Court, after a careful examination of the evidence and arguments
presented by the Parties, that the title to sovereignty claimed by Costa Rica over the entirety of
Isla Portillos is plausible ; whereas the Court is not called upon to rule on the plausibility of the
title to sovereignty over the disputed territory advanced by Nicaragua ; whereas the provisional
measures it may indicate would not prejudge any title ; and whereas the Parties’ conflicting
claims cannot hinder the exercise of the Court’s power under its Statute to indicate such
measures;
[...]
Link between the Rights Whose Protection Is Being Sought and the Measures Requested
60. Whereas the first provisional measure requested by Costa Rica is aimed at ensuring that
Nicaragua will refrain from any activity “in the area comprising the entirety of Isla Portillos” ;
whereas the continuation or resumption of the disputed activities by Nicaragua on Isla Portillos
would be likely to affect the rights of sovereignty which might be adjudged on the merits to belong
to Costa Rica ; whereas, therefore, a link exists between these rights and the provisional measure
being sought ;
61. Whereas the second provisional measure requested by Costa Rica concerns the suspension of
Nicaragua’s “dredging programme in the River San Juan adjacent to the relevant area” ;
whereas there is a risk that the rights which might be adjudged on the merits to belong to Costa
Rica would be affected if it were established that the continuation of the Nicaraguan dredging
operations on the San Juan River threatened seriously to impair navigation on the Colorado River
[...] or to cause damage to Costa Rica’s territory ; whereas, therefore, there exists a link between
these rights and the provisional measure being sought ;
62. Whereas the final provisional measure sought by Costa Rica is aimed at ensuring that
Nicaragua refrains “from any other action which might prejudice the rights of Costa Rica, or
which may aggravate or extend the dispute before the Court” pending the “determination of this
case on the merits” ; whereas on a number of occasions the Court has already indicated
provisional measures ordering one or other of the parties, or even both, to refrain from any action
which would aggravate or extend the dispute or make it more difficult to resolve (see, for example
[...]); [...]; whereas the final provisional measure sought by Costa Rica, being very broadly
worded, is linked to the rights which form the subject of the case before the Court on the merits, in
so far as it is a measure complementing more specific measures protecting those same rights;
Risk of Irreparable Prejudice and Urgency
63. Whereas the Court, pursuant to Article 41 of its Statute, has the power to indicate provisional
measures when irreparable prejudice could be caused to rights which are the subject of the
judicial proceedings (see, for example, [...]) ;
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64. Whereas the power of the Court to indicate provisional measures will be exercised only if there
is urgency, in the sense that there is a real and imminent risk that irreparable prejudice may be
caused to the rights in dispute before the Court has given its final decision (see, for example, [...]);
and whereas the Court must therefore consider whether such a risk exists in these proceedings ;
65. Whereas, in its Request for the indication of provisional measures, Costa Rica states that
“Nicaraguan armed forces continue to be present on Isla Portillos in breach of Costa Rica’s
sovereign rights” and that Nicaragua “is continuing to damage the territory of Costa Rica, posing
a serious threat to its internationally protected wetlands and forests” ; whereas it contends,
moreover, that “Nicaragua[, which] is attempting to unilaterally adjust, to its own benefit, a River
the right bank of which forms a valid, lawful and agreed border . . . cannot be permitted to
continue to deviate the San Juan River through Costa Rica’s territory in this manner, so as to
impose on Costa Rica and the Court a fait accompli” ;
[...]
68. Whereas Costa Rica asserted that the works undertaken by Nicaragua at the site of the caño,
in particular the felling of trees, the clearing of vegetation, the removal of soil and the diversion of
the waters of the San Juan River, not only entail a violation of Costa Rica’s territorial integrity,
but will have the effect of causing flooding and damage to Costa Rican territory, as well as
geomorphological changes ; whereas, according to Costa Rica, the dredging of the San Juan
River carried out by Nicaragua will result in similar effects, as well as significantly reducing the
flow of the Colorado River ; and whereas it contended that the harm caused will not merely be
irreparable as such, but that it is Nicaragua’s intention for it to be irreparable, because it is not
doing this for temporary purposes ;
69. Whereas, moreover, Costa Rica affirms in its Request for the indication of provisional
measures that the request “is of . . . real urgency”, because of “the continued damage being
inflicted on [its] territory” by Nicaragua’s activities, in particular its repeated dredging of the San
Juan River; [...] whereas it adds that “[t]he ongoing presence of Nicaraguan armed forces on
Costa Rica’s territory is contributing to a political situation of extreme hostility and tension” and
that “[a] provisional measure ordering the withdrawal of Nicaraguan forces from Costa Rican
territory is . . . justified so as to prevent the aggravation and/or extension of the dispute” ;
70. Whereas, during the oral proceedings, Nicaragua contended that it acted within its own
territory and caused no harm to Costa Rica ; whereas it maintained that its activities, the
environmental impact of which had been duly assessed beforehand, were not likely to cause or
aggravate the damage feared by Costa Rica and that, in any case, the risk of harm was not
imminent;
71. Whereas Nicaragua asserted at the hearings that the cleaning and clearing operations in
respect of the caño were over and finished, and that none of its armed forces were presently
stationed on Isla Portillos ; whereas, in a written reply to questions put by a Member of the Court
at the end of the hearings, Nicaragua confirmed these assertions, adding that it did “not intend to
send any troops or other personnel to the region” contested by the Parties nor to “[establish] a
military post there in the future”, while the issue of the felling of trees and the dumping of
sediment in certain areas along the caño “no longer arises”, since the operation to clean the latter
is “over and finished”;
72. Whereas Nicaragua stated in its written replies that it does not “intend to have any personnel
stationed in [the disputed] area” ; whereas it nevertheless added that “[t]he only operation
currently being carried out there is the replanting of trees” and that “[t]he Ministry of the
Environment of Nicaragua (MARENA) will send inspectors to the site periodically in order to
monitor the reforestation process and any changes which might occur in the region, including the
Harbor Head Lagoon” ; whereas Nicaragua also observed that “[t]he caño is no longer
obstructed” and further stated that “[i]t is possible to patrol the area on the river [...]";
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73. Whereas it is in the light of this information that the first provisional measure requested by
Costa Rica in its submissions presented at the end of its second round of oral observations should
be considered, namely, that
“[p]ending the determination of this case on the merits, Nicaragua shall not, in the area
comprising the entirety of Isla Portillos, that is to say, across the right bank of the San Juan River
and between the banks of the Laguna los Portillos (also known as Harbor Head Lagoon) and the
Taura River (‘the relevant area’) :
(1) station any of its troops or other personnel ;
(2) engage in the construction or enlargement of a canal ; (3) fell trees or remove vegetation or
soil ;
(4) dump sediment” ;
74. Whereas Nicaragua’s written responses set out above (see paragraph 71) indicate that the
work in the area of the caño has come to an end ; whereas the Court takes note of that ; whereas
the Court therefore concludes that, in the circumstances of the case as they now stand, there is no
need to indicate the measures numbered (2), (3) and (4) as set out in paragraph 73 above ;
75. Whereas those written responses nevertheless also show that Nicaragua, while stating that
“[t]here are no Nicaraguan troops currently stationed in the area in question” and that
“Nicaragua does not intend to send any troops or other personnel to the region” (see paragraph
71 above), does intend to carry out certain activities, if only occasionally, in the disputed territory,
including on the caño (see paragraph 72 above) ; whereas the Court recalls that there are
competing claims over the disputed territory ; whereas this situation creates an imminent risk of
irreparable prejudice to Costa Rica’s claimed title to sovereignty over the said territory and to the
rights deriving therefrom ; whereas this situation moreover gives rise to a real and present risk of
incidents liable to cause irremediable harm in the form of bodily injury or death ;
76. Whereas the Court concludes under these circumstances that provisional measures should be
indicated ; whereas it points out that it has the power under its Statute to indicate provisional
measures that are in whole or in part other than those requested, or measures that are addressed
to the party which has itself made the request, as Article 75, paragraph 2, of the Rules of Court
expressly states (see, for example, [...]) ;
77. Whereas, given the nature of the disputed territory, the Court considers that, subject to the
provisions in paragraph 80 below, each Party must refrain from sending to, or maintaining in the
disputed territory, including the caño, any personnel, whether civilian, police or security, until
such time as the Court has decided the dispute on the merits or the Parties have come to an
agreement on this subject.”
The Court ordered both parties to “refrain from sending to, or maintaining in the disputed territory,
including the caño, any personnel, whether civilian, police or security”. However, because two
wetlands of international importance, within the meaning of the Convention on Wetlands of
International Importance especially as Waterfowl Habitat, done at Ramsar on 2 February 1971, are
situated in the boundary area of the disputed territory, and that Costa Rica bears obligations under
the Ramsar Convention in respect of one area, the Court authorized Costa Rica to “dispatch civilian
personnel charged with the protection of the environment to the disputed territory, including the
caño, but only in so far as it is necessary to avoid irreparable prejudice being caused to the part of
the wetland where that territory is situated”. (ICJ, Certain Activities Carried Out by Nicaragua in
the Border Area (Costa Rica v. Nicaragua), Provisional Measures, Order of 8 March 2011, ICJ
Reports 2011, p. 6)
In December 2011, Nicaragua brought a separate case against Costa Rica at the ICJ (Construction
of a Road in Costa Rica along the San Juan River (Nicaragua v. Costa Rica)). The two cases were
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joined in 2013. Oral pleadings on the merits took place in The Hague in April 2015, and Court’s
deliberation is currently under way.
Preliminary objections
Another very frequent incidental proceedings is the fact that the respondent State raises objection to
the jurisdiction of the Court or to the admissibility of the application.
Ø And for instance, the respondent State may say that the dispute does not fall within the
purview of one of the optional clauses, or that the prior conditions set out in the
compromissory clause are not met.
Ø Or the respondent may also object to the jurisdiction of the Court because it considers that if
the Court decides on the claim submitted to it, it will necessarily decide also on the rights
and obligations of a third State which is not present in the proceedings and has not accepted
the Court’s jurisdiction.
Ø Or, the respondent, in matters of admissibility, may argue that the rules on the nationality of
claims or the exhaustion of local remedies are not met.
Because those objections should be raised as early as possible and not later than three months after
the filing of the claimants’ memorial, those objections are called “preliminary objections”. They are
regulated under Article 79 of the Rules.
- A fundamental procedural right
It is a fundamental procedural right of the respondent State to raise such objections because no State
can be compelled to present its defense on the merits before a Court it considers to be lacking
jurisdiction or in relation to a claim considered inadmissible.
- Effect
Raising preliminary objections has the effect of suspending the procedure on the merits as long as
the Court takes a decision on its jurisdiction or on the admissibility of the case. The procedure
“bifurcates” when preliminary objections are raised: the procedure on the merits is suspended, the
respondent State does not have to answer the claims on the merits in a counter-memorial and it does
not need to present its evidence to counter those claims.
Instead, the respondent State writes a memorial objecting to the Court’s jurisdiction and eventually
also to the admissibility of the claims, to which the claimant will respond in a counter-memorial on
jurisdiction.
And eventually, a second round of written pleadings on the issue of jurisdiction or admissibility will
be submitted before public hearings take place in The Hague.
- Decision (judgment)
Because, under Article 36, paragraph 6, of the Statute, the Court has the “compétence de la
competence”, it will have to take a decision on any dispute about its jurisdiction or the
admissibility of the claims.
This decision takes the form of a judgment, binding on the parties and on the Court itself as a matter
of res judicata.
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Actually, the Court has three options when considering the preliminary objections:
1) Either it rejects them and the case proceeds to the merits; or
2) It upholds one or all of them and the case ends there; or
3) It decides to postpone its decision on an objection because it considers that it needs to be
more informed in order to take a decision.
In that case, the Court joins the objection to the merits: the objection will be examined first
when the merits phase opens.
It is important to note that about a big quarter or one third of ICJ cases stop at the preliminary
objection stage because the Court considers that it lacks jurisdiction.
It is also important to stress that it is not because the respondent has not raised preliminary
objections that it is barred from objecting to the jurisdiction of the Court or the admissibility of the
claims at a later stage of the proceedings, and notably when filing its counter-memorial on the
merits. But if the respondent does not raise objections at the preliminary stage, it will have to
present its views on the merits at the same time then. The Court must indeed be certain of its
jurisdiction at any stage of the proceedings.
And whether at the preliminary stage or later in the proceedings, assessing the Court’s jurisdiction
requires to look at the following issues in a logical order:
1) First, the Court needs to determine if a dispute exists between the parties;
2) If there is a dispute, then the Court will have to determine the very subject-matter of the
dispute, knowing that such determination is made by the Court itself, objectively and
irrespective of the parties’ contentions; and
3) Once the Court has determined the subject-matter of the dispute, it will have to assess if
both parties have consented to its jurisdiction in relation to the subject-matter of the dispute.
It is at this stage of the analysis that the Court will have to interpret the special agreement,
the compromissory clauses or the optional clauses relied upon by the claimant. If the Court
concludes that there is no dispute between the parties, or that the subject-matter of the
dispute does not fall within the purview of the instrument under which its jurisdiction is
alleged by a claimant, or that the conditions of consent are not met – in any of those
situations, the Court will have to conclude that it has no jurisdiction to entertain the claims.
The Monetary Gold principle
Even if the ICJ has jurisdiction over a dispute between two States, it must decline to exercise its
jurisdiction if the rights and obligations of a third State, although not a party to the case, are the
very subject-matter of that dispute.
- Italy v. France, UK and US
The principle of the “indispensable third party” has been developed by the ICJ in a case
concering the Monetary Gold Removed from Rome in 1943 and it is therefore also referred to as the
“Monetary Gold principle”. In that case, the Court declined to hear a claim Italy brought against
France, the United Kingdom, and the United States because doing so would have required it to
determine the rights and obligations of Albania, a State that was not party to the proceedings and
which did not accept the jurisdiction of the ICJ.
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The case concerned a certain quantity of monetary gold that had been removed by German forces
from Rome in 1943, after Italy and Germany became enemies. In separate proceedings held after
the war, part of the gold removed by Germany was determined by an independent arbitrator to
belong to Albania. It had also been separately determined that, because the UK had certain
liquidated claims against Albania (notably the compensation awared by the ICJ to the UK following
the Corfu Channel incident), a certain quantity of Albanian gold should be transferred to the UK,
provided however that neither Italy, nor Albania, objected.
The UK, the US and France were the three States overseeing the distribution of the monetary gold,
and Italy brought a case against them because it considered that it had a claim against Albania
which should take precedence over the British claim. Italy’s claim against Albania related to
damage suffered by Italian nationals as a result of confiscation measures adopted against Italian
property by the new Albanian government at the end of the war.
The ICJ ruled it had jurisdiction to hear the case brought by Italy against the UK, the US and
France, but declined to exercise jurisdiction on the grounds that deciding the merits of the case
would require to rule on the lawfulness of the conduct of Albania, an absent third State which had
not consented to the jurisdiction of the Court. The Court ruled as follows:
“Italy believes that she possesses a right against Albania for the redress of an international wrong
which, according to Italy, Albania has committed against her. In order, therefore, to determine
whether Italy is entitled to receive the gold, it is necessary to determine whether Albania has
committed any international wrong against Italy, and whether she is under an obligation to pay
compensation to her; and, if so, to determine also the amount of compensation. In order to decide
such questions, it is necessary to determine whether the Albanian law of January 13th, 1945, was
contrary to international law. In the determination of these questions -- questions which relate to
the lawful or unlawful character of certain actions of Albania vis-à-vis Italy -- only two States,
Italy and Albania, are directly interested. To go into the merits of such questions would be to
decide a dispute between Italy and Albania.
The Court cannot decide such a dispute without the consent of Albania. But it is not contended by
any Party that Albania has given her consent in this case either expressly or by implication. To
adjudicate upon the international responsibility of Albania without her consent would run counter
to a well-established principle of international law embodied in the Court's Statute, namely, that
the Court can only exercise jurisdiction over a State with its consent.
[...]
In the present case, Albania's legal interests would not only be affected by a decision, but would
form the very subject-matter of the decision. In such a case, the Statute cannot be regarded, by
implication, as authorizing proceedings to be continued in the absence of Albania.” (ICJ,
Monetary Gold Removed from Rome in 1943 (Italy v. France, United Kingdom of Great Britain
and Northern Ireland and United States of America), 15 June 1954, ICJ Reports, p. 32)
- East Timor (Portugal v. Australia)

In the East Timor case, the ICJ applied again this principle in a dispute brought by Portugal against
Australia concerning certain of Australia’s activities in respect of East Timor. The third absent State
whose rights and obligations constituted the very subject of the dispute was Indonesia.
Portugal notably argued that the Monetary Gold principle did not apply because the rights allegedly
breached by Australia (the right of self-determination) were erga omnes, and “that accordingly
Portugal could require it, individually, to respect them regardless of whether or not another State
had conducted itself in a similarly unlawful manner”.
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The Court replied that “Portugal’s assertion that the right of peoples to self-determination, as it
evolved from the Charter and from United Nations practice, has an erga omnes character, is
irreproachable” and that self-determination “is one of the essential principles of contemporary
international law”. However, and as already recalled during Week 6, the Court “consider[ed] that
the erga omnes character of a norm and the rule of consent to jurisdiction are two different things.
Whatever the nature of the obligations invoked, the Court could not rule on the lawfulness of the
conduct of a State when its judgment would imply an evaluation of the lawfulness of the conduct of
another State which is not a party to the case. Where this is so, the Court cannot act, even if the
right in question is a right erga omnes” (ICJ, East Timor (Portugal v. Australia), 30 June 1995, ICJ
Report, p. 102, para. 29).
The rationale for the Monetary Gold rule lies in the fundamental principle of State consent, which is
the bedrock of any international adjudication.
The filing of a counter-claim by the respondent
A third possible incidental proceeding is the filing of a counter-claim by the respondent under
Article 80 of the Rules of Court.
- Notion
The Court defines a counter-claim as being “an autonomous legal act the object of which is to
submit a new claim to the Court and, at the same time, ‘linked to the principal claim, in so far as,
formulated as a ‘counter’ claim, it reacts to it’”.
- Conditions
Under Article 80 of the Rules, the counter-claim presented by the respondent is admissible as such
“only if it comes within the jurisdiction of the Court and is directly connected with the subject-
matter of the [principal] claim”.
The need of a jurisdictional link is obvious as the Court cannot entertain any claim absent the
consent of both disputing States. The need of a direct connection between the subject-matter of the
principal claim and the subject- matter of the counter-claim is required in order to preserve the good
administration of justice and avoid that in the course of the same proceedings totally unrelated
issues are debated.
Those two conditions must be met and if they are not, the counter-claim is declared inadmissible as
such and does not form part of the proceedings of the case.
The counter-claim must be made in the respondent’s counter-memorial on the merits, which means
that it can still be submitted after the Court has rejected preliminary objections.
The intervention of third States

A fourth incidental proceedings relates to the possible intervention of third States.
Because the existence of every new case submitted to the Court is notified and is brought to the
attention of the other States bound by the Statute to the UN, those third States may intervene in the
proceedings.
Intervention is a technical, procedural, issue for a very few specialists of ICJ proceedings and the
case-law has been rather convoluted in that regard, but, without going too much into details, let’s
quickly cover the issue because it will help us to have a sense of how ICJ proceedings are at the
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same time private, like in arbitration, and distinctively public also, and how a balance between this
private and public aspects is somehow struck through the rules relating to intervention.
- The different types of interventions
Three types of interventions are possible and must be distinguished.
o The intervening State has a right to intervene (Article 63)
Under the first type of intervention, the intervening State has a right to intervene in the proceedings.
This possibility is envisaged under Article 63 of the Statute.
Ø In the dispute between Australia and Japan about Whaling in the Antarctic, that was
decided in 2014, New Zealand intervened in the proceedings on the basis of Article 63
because it wanted to support the Australian interpretation of the International Convention
for the Regulation of Whaling to which it is also a party.
The State intevening on the basis of Article 63 does not present a claim to the Court and does not
become a party to the proceedings: it intervenes only for the purpose of presenting to the Court its
own views and observations about the construction, i.e. the interpretation, of the convention, the
treaty which is in question in the case and to which it is also a party.
Because the interpretation given by the Court to the convention will not only be legally binding on
the claimant and the respondent in the case, but also on the intervening State, Article 63
interventions are actually rarely used.
o The intervening State has a possibility to intervene (Article 62)
The second and the third types of interventions are envisaged by Article 62 of the Statute. Here,
intervention is not a right, but a possibility and it is for the Court to decide.
And two types of interventions are possible under Article 62:
- Either the intervening State wants to present its views to the Court and protect its rights by
bringing them to the attention of the Court; or
- The intervening State wants to go a step further and actually tack a new case on the pending
case, submit a claim to the Court, ask the Court to adjudicate upon its rights and therefore
become a party to the pending case between claimant and respondent.
If the intervening State wants to become a party to the case, wants to tack a new case, it
must additionally, and as provided under Article 81 of the Rules, it must establish that there
exists a basis of jurisdiction between itself and the parties to the case.
In such a case also, the object of the intervention must be connected to the subject-matter of
the principal claim.
In both cases, the third State needs to establish in its application for permission to intervene that it
has an interest of a legal nature which may be affected by the future decision of the Court in the
case and it must also set out precisely the object of its intervention.
The interest of a legal nature likely to be affected by the future decision of the Court does not
amount to the subject-matter of the dispute, but needs to be examined on a case-by-case basis.
The case-law of the Court on matters of intervention has been convoluted and it has evolved
throughout the years to make those conditions finally clear.
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However, the Court has been rather restrictive when assessing the existence of a legal interest that
may be affected by its future decision or the other conditions for intervention, so that very few
authorizations to intervene have been granted. This bears witness to the fact that the Court considers
itself very much as an arbitral organ in the business of settling disputes, rather than as a kind of
constitutional court of the world.
Discontinuance
The last incidental proceedings to report upon is discontinuance. It is regulated under Articles 88
and 89 of the Rules.
There is no need to say much about discontinuance, except that about a third of cases are
discontinued because parties manage, in the course of the proceedings, to find an agreed settlement
between them.
This may sound a huge portion and a failure of adjudication, but discontinuance of a case should
really be seen as a success for the ICJ itself. It is indeed because the Court exists, that it has been
duly seized of a dispute and that States somehow fear an adverse judgment, that they finally find a
way to accommodate their respective claims and agree on a settlement. Remember: the purpose of
all those proceedings is to help States overcome their differences and settle their disputes. So,
bringing a case to the Court puts pressure on the respondent State; it also brings the parties closer
together because they are forced to phrase their claims in the professional language of international
law, to exchange legal – rather than political – arguments about their claims. Also, the ICJ
proceedings will provide for some cooling-off period, changing the pace of politics, etc. All those
elements put together will eventually facilitate direct negotiations between the parties, and those
negotiations may of course continue while the case is pending at the Court. So, sometimes – or,
actually, quite often – the presence of the judge, rather than its decisions, help to settle international
disputes.
Behind the scenes
From that moment onwards, when final submisisons have been made, after the end of the oral
pleadings, what happens within the Court and how are judgments drafted?
The internal judicial practice of the Court is detailed in a Resolution the Court adopted in 1976 and
which is posted on its website. It’s called “Resolution Concerning the Internal Judicial Practice of
the Court”.
- Summary of the arguments
One month before the beginning of the public hearings, a summary of the arguments of the parties
presented in their respective written pleadings is distributed to the judges of the Court. The
summary of the arguments of the parties is an internal document prepared by the registry. It is
already a first digestion of the case, presenting the issues in a logical order.
But of course, because all along the way the judges and the judges ad hoc receive the written
submissions of the parties, they do not wait for the summary of arguments prepared by the Registry
to work on the case.
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- Summary of the procedural history of the case: the “qualités”

A second document is prepared by the Registry: it is called in French the “qualités” and it
summarizes the procedural history of the case and will constitute the first part of the judgment of
the Court.
It is in that part that you find reproduced the various submissions of the parties presented at the end
of their respective written pleadings and, also, the final submissions read out in Court at the end of
the public hearings by the agent of each party. By comparing what each party exactly asks from the
Court at the end of each round of written and oral pleadings, you can actually see if and to what
extent the dispute has evolved throughout the proceedings, if the proceedings brought the parties
closer together and resulted in some claims being dropped, etc.
The dispute that the Court has to adjudicate upon is the dispute as it is reflected in the final
submissions of the parties, not the dispute as it stood at the very beginning of the proceedings. And
very often, there is a difference between the two, which proves again that the sheer presence of the
Court has an effect on the scope of the dispute and that the virtue of judicial proceedings is to bring
parties closer together and reduce the dispute to its essentials. Because the Court’s judicial function
is to settle the dispute, or rather what remains of the dispute, it must only answer the final
submissions of the parties.
- The “list of issues”
A third document is prepared by the Registry, under the supervision of the President of the Court. It
is called the “list of issues”.
The list of issues is a list of questions, logically articulated, with references to the relevant parts of
the written and oral pleadings of the parties. The list of issues is approved by the full Court during a
short deliberation which is held just after the end of the second round of the public hearings. It is
then indeed that it can be finally adjusted, in light of the final submissions presented by each party.
- The judges’ notes
After the list of issues is adopted, each judge sitting in the case is called to write within a certain
period of time a note and present his or her views on the various issues raised by the dispute.
The judges’ notes are confidential and the judges are free to follow the structure of the list of issues,
or not, to answer all issues, or not. The notes are translated and distributed within the Court at a
certain date. If a judge has not yet finalized his or her note, the notes of the other judges are not
handed over to that judge, in order not to influence his or her views.
- Substantial deliberation
A few weeks after all judges’ notes have been distributed, the Court meets and begins its substantial
deliberation. It is called “Article 5 deliberation”, because it is envisaged under Article 5 of the
Resolution concerning the internal judicial practice of the Court.
The deliberation is held behind closed doors of the deliberation chamber and it is of course
confidential with only a few members of the registry and interpreters present.
Each judge is called to present his or her views orally, and judges speak in the inverse order of
seniority, starting with judges ad hoc, then the most recently elected judges, and ending with the
President.
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The deliberation may take several days or weeks, depending on the complexity of the case.
The President conducts the debate and the judges are free to react to each other views and raise
questions.
- Decision
At the end of the deliberation, the President wraps up the debates. It is indeed at that moment that
the actual decision of the Court is taken: it is at that moment of the deliberation, in light of the
views expressed by each judge, that one knows where the majority of the Court lies, who has won
and who has lost, and on which issues.
- Drafting committee
After the President has summed up the position of the Court, that is made clear in which direction
the judgment would go, a drafting committee is elected.
The drafting committee is usually made of 3 or 4 judges and they must of course reflect the views
of the majority: the president is ex officio member of the drafting committee if he or she is part of
the majority, and then two or three other judges are elected.
The drafting committee is assisted by the registry and the judges by their respective clerks.
After having met several times, the drafting committee produces a preliminary draft judgment in
both French and English which is then circulated to the other judges. Those other judges have a few
weeks to submit written amendments, on substance or on form.
And then the drafting committee meets again, considers those amendments, adopts some, rejects
others, and issues another draft judgment. It is the draft for what is called the “first reading”.
- The “first reading” of the draft judgment
The “first reading” of the draft judgment takes place in the deliberation chamber, with all judges
sitting in the case present, and the draft is read out by legal officers from the Registry, paragraph by
paragraph, in both languages, French and English.
After each paragraph, any judge is free to express his or her view, to suggest amendments, a better
way to phrase the reasoning, etc.
The first reading is not supposed to be a second deliberation, but sometimes very substantial
exchanges take place again.
And it is at the end of the first reading that judges have to announce whether they intend to deliver a
separate or a dissenting opinion.
- The “secong reading”
After the first reading, which can take days, and after having also received the draft separate or
dissenting opinions, the drafting committee meets again and finalizes a draft for what is called the
“second reading”.
During the second reading, only the paragraphs that have changed in the meantime are read out and
discussed.
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At the end of the second reading, judges are each called, in turn, to vote on the operative part of the
judgment. Judges may vote in favor or against, but they may not abstain. The vote is recorded and
made public in the judgment, under each sub-paragraph of the operative part.
Once the judges have voted, that’s it: the judgment becomes res judicata for them and for the Court.
It is then up for to the Registry to finalize the text of the judgment, to collect the judges’ opinions
and to prepare copies that will be distributed to the parties at the end of the public reading.
- Public reading
The public reading takes place in the Great Hall of Justice at the Peace Palace a few days or weeks
after the end of the second reading.
- General comments about the procedure
o Provisional measures
The internal procedure described here is applicable in case of judgments, including judgments on
preliminary objections, and in cases of advisory opinions. It is a long and detailed procedure and it
is of course shortened when the Court has to order provisional measures.
In such a case, there is only one deliberation and one reading of the draft. The draft is prepared by
the registry and there is no drafting committee of judges.
o Reflection
The procedure is long and detailed, it takes place in both languages, but it is also extremely
deliberative and rational. A judgment of the Court is the result of a real judicial deliberative
process, with great minds exchanging their views and many pairs of eyes going time and time again
over the same draft and the same questions.
It is also important to remember that any decision by the ICJ is the product of a collective process in
which no one single person has the upper-hand: the rationality and the quality of the judgments, of
the reasoning that you find in the Court’s decisions, stem from this lengthy deliberative and
collective process.
However, now that we know how judgments of the ICJ are made, we can also better understand
what a judicial process is about: it is about letting the disputing parties present their arguments and
evidence on a equal footing, then take a decision about the dispute and then, after the substantive
decision is taken, put in writing the best available reasons in favor of the decision that has been
taken. Therefore, when reading a decision of the Court – or of any court or tribunal, be it domestic
or international –, start by looking, usually at the beginning of the decision, what is respectively
claimed by the parties, then turn immediately to the very end of the operative part, that is the actual
decision taken by the Court, and only after turn to everything that is between, that is the judicial
reasoning of the Court. The decisions are drafted in such a way as to make the conclusion, the
decision, inescapable, as if, with such reasoning, only one conclusion could be reached – but of
course the reasoning itself is a choice, a choice made on the basis of the decision which has already
been taken.
We’re not suggesting here that judgments are political decisions wrapped up in legal arguments and
that the judge would be always free to come up with any sort of outcome. Not at all: because the
judge is compelled to give legally articulated reasons for its choices, the legal language which
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serves to justify its choices will considerably constrain and limit those collective choices, and direct
the judge to a certain outcome – but choices will nevertheless be made.
And in light of this, the task of a counsel is to try to convince the judge that some choices cannot be
reasonably made under the law, that the law leads to a certain result that are more easily justifiable
under the law, or at least that the outcome favorable to the counsel’s client can be perfectly and
convincingly justified under the law, and is also well grounded in fact, facts being of paramount
importance, if not central, in any judicial settlement.
The binding character of ICJ judgments
- Binding character (Article 94 UN Charter + 59 ICJ Statute)
ICJ judgments are binding on the parties to the dispute and must be respected by them. This is made
clear by the UN Charter (Article 94) and by the Statute of the Court (Article 59).
If a State does not comply with a judgment of the Court, the matter can be referred to the Security
Council under Article 94, paragraph 2, of the UN Charter. So far, it has not been necessary to
resort to Security Council measures to enforce a judgment: in practice, States do comply with the
Court’s judgments. However, it might take some time, or even decades, for States to finally comply.
Ø In the Cameroun v. Nigeria case, the Court decided by its judgment of 10 October 2002 that
Cameroun had sovereignty over the disputed Bakassi peninsula, while Nigeria finally
withdrew its troops in August 2008 following the good offices of the UN Secretary General.
Ø In the Corfu Channel case, Albania finally paid in 1996 a sum of money for the settlement
of the amount awarded by the Court in December 1949.
- Final and without appeal (Article 60 ICJ Statute)
The judgments of the International Court of Justice are “final and without appeal” (Article 60 ICJ
Statute).
Judgments (not orders) are also final for the Court itself and the Court cannot revisit its judgments,
once they have been delivered.
- Exceptions
However, despite the force of res judicata, two procedures established under the Statute allow the
Court to re-open decided cases:
1) Under Article 60 of the Statute, the Court may be called to interpret judgments.
The “dispute” that must exist over the meaning of a judgment must not reach the level of
opposition that is typical for a dispute for the Court to have contentious jurisdiction. The
French version of Article 60 of the Statute refers to the notion of “contestation” over the
meaning or scope of judgments, and the Court satisfies itself that when such “contestation”
exists, it has jurisdiction to interpret the previous judgment.
2) Under Article 61 of the Statute, the Court may be called to revise judgments.
The conditions for the opening of revision proceedings are very strict: it requires “the
discovery of some fact of such a nature as to be a decisive factor, which fact was, when the
judgment was given, unknown to the Court and also to the party claiming revision, always
provided that such ignorance was not due to negligence”. If the Court records the discovery
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of such a new fact, it declares the application for revision admissible, provided that it was
made at the latest six months after the discovery of the new fact and that it is made not later
than ten years after the date of the judgment. If the application for revision is declared
admissible, the proceedings for revision take place and its merits are examined.
So far, three applications for revision have been submitted to the Court, but they were each
declared inadmissible.
IV. INTERNATIONAL CRIMINAL COURT
Establishing the International Criminal Court

- A long process
The establishment of a permanent international court charged with the prosecution and punishment
of the most serious offenses against the law of Nations is the result of a long history.
o The Treaty of Versailles (1919)
After the First World War, Article 227 of the Treaty of Versailles envisaged the establishment of a
“special tribunal” to try “William II of Hohenzollern, formerly German Emperor, for a supreme
offence against international morality and the sanctity of treaties”. The tribunal was to be composed
of five judges each appointed by the United States of America, Great Britain, France, Italy and
Japan. However, this first international tribunal was never established as the former emperor fled to
the Netherlands, which had remained neutral during the war, and remained in that country until his
death in 1941.
o The Nuremberg and Tokyo tribunals and the ICTY (1993) and the ICTR (1994)
After the Second World War, the Nuremberg and Tokyo tribunals were established to try major war
criminals.
For about five decades, they remained the only experiment of international criminal justice, until
the establishment, respectively in 1993 and 1994, of the International Criminal Tribunal for the
former Yugoslavia and the International Criminal Tribunal for Rwanda. Both ad hoc tribunals were
created as subsidiary organs of the UN Security Council by binding resolutions (Res. 827 (1993)
and Res. 955 (1994)) adopted under Chapter VII of the Charter (see Week 8). Both tribunals have
primacy over national courts and their jurisdiction was restricted to serious violations of
international humanitarian law, i.e. genocide, crimes against humanity and war crimes committed
within specific territories and for specific periods of time.
After more than 20 years in operation, the tribunals have nearly completed their work. They both
made lasting contributions to the development of international humanitarian law and their
establishment has forever changed the way States and the world public opinion consider
international criminal justice.
This being said, the establishment of international criminal tribunals through binding resolutions of
a restricted political organ like the Security Council raised several serious legal concerns.
If States finally accepted such expedients, it was essentially due to the exceptional character of the
situations in Yugoslavia and Rwanda and the incapacity of the international community to
effectively put an end to the ongoing atrocities in both countries.
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However, States were not ready to accept that a standing international court be established through
a binding resolution of the Security Council and absent explicit State consent. That is why a
conference of plenipotentiaries was convened in Rome in 1998 to draft the ICC’s Statute which
took the form of a treaty. No doubt, the general mood in favour of the establishment of a standing
international criminal court benefited from the experience gained out of the ICTY and the ICTR.
But the preparatory work for the ICC pre-dates both ad hoc tribunals and deserves to be briefly
mentioned.
o The ICC
In 1948, an “international penal tribunal” was envisaged under Article 6 of the Genocide
convention but never established.
One year earlier, in 1947, the UN General Assembly directed the International Law Commission
(ILC) with the task of drafting a Code of offenses against the peace and security of manking, on the
basis of the principles of international law stemming from the judgments of the Nuremberg
Tribunal.
Ten years later, the General Assembly decided to defer consideration of the draft Code until such
time as it took up again the question of defining aggression.
In the late 1970s, the matter came back to the floor on several occasions and in 1981, the General
Assembly invited the ILC to resume its work on the draft Code of offenses against the peace and
security of mankind.
Between 1983 and 1995, special rapporteur Mr. Doudou Thiam produced 13 reports that were
discussed by the ILC and commented by the UN member States.
In 1996, the Commission adopted a Draft Code containing 20 articles. In the meantime, the ILC
established a working group chaired by Prof. James Crawford in order to draft the statute of an
international criminal court, which was adopted by the ILC in 1994.
On the basis of all this preparatory work, the General Assembly decided to convene in Rome, in
1998, a diplomatic conference on the establishment of an International Criminal Court (ICC). The
Statute of the ICC was finally signed on 17 July 1998 and entered into force on 1 July 2002.
- The ICC as an institution
o Generalities
The ICC is an international organization distinct from the United Nations and not part of the UN
system. Therefore, it is not to be considered as a specialized UN agency.
However, the Court is endowed with an international legal personality (Article 4) and pursuant to
Article 2 of the ICC Statute, it has concluded an agreement concerning its relationship with the UN.
The seat of the ICC is established in The Hague, in the Netherlands.
The Court is funded by the State parties (123 countries as of 1 April 2015) and also receives
various contributions from other sources, including individuals and corporations.
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o Composition and organs

The Court is a body of 18 judges sitting in the Presidency (3 judges) and the Judicial Divisions.
Judges are elected by the Assembly of States Parties for a term of nine years. They are nor eligible
for re-election except if the judge has been elected to fill the term of another judge and that the
remainder of the predecessor is three years or less (ICC Statute, Article 37, para. 2). When selecting
the judges, the States parties are requested to take into account the need for a representation of the
principal legal systems of the world, an equitable geographical representation and a “fair
representation of female and male judges” (ICC Statute, Article 36, para. 8).
The Court is composed of four main organs:
1) The Presidency which is composed of three judges elected by their peers for a
renewable term of three years. The presidency is mainly tasked with the
administration of the Court. The current President is Judge Fernández de Gurmendi,
a national from Argentina.
2) The judicial Divisions which are the judiciary of the Court and are responsible for
conducting the proceedings of the Court at different stages: a Pre-Trial Division, a
Trial Division and an Appeals Division.
3) The Office of the Prosecutor which is responsible for receiving information and
conducting investigations and prosecutions before the Court. The Office is headed
by the Prosecutor, elected by the States Parties for a term of nine years. The current
Prosecutor is Mrs Fatou Bensouda, a national from the Gambia.
4) The Registry is in charge of the non-judicial administrative aspects of the work of
the Court. It is headed by the registrar, elected for five years. The current Registrar is
Mr Herman von Hebel, a Dutch national.
For administrative purposes, the Registry includes the Office of Public Counsel for
Victims and the Office of Public Counsel for Defence. Despite falling within the
remit of the registry, those offices function as wholly independent offices.
A Trust Fund has also been established by the Assembly of State Parties under Article 79 of the
ICC Statute. The Trust Fund is tasked with supporting and implementing programmes that address
the harms resulting from the crimes within the jurisdiction of the Court, to the benefit of the victims
and their families.
The Court runs a Detention Centre where accused are detained pending and during their trial. The
persons convicted do not serve their sentence at the Detention Centre but are transferred in various
prisons around the world, in countries having concluded an agreement with the ICC (see the
agreements concluded with the United Kingdom, Finland, Serbia, Mali, Denmark and Belgium).
All together, around 800 persons are currently working with the ICC.
Since its establishment, 22 cases in 9 situations have been brought before the ICC.
While African States were originally keen supporters of the ICC and have willingly referred to it
several situations, the focus of the Prosecutor’s office on African situations and leaders has attracted
many criticism and the African Union adopted strong worded decisions in that regard (see
Assembly/AU/Dec. 547 (XXIV)).
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ICC jurisdiction
Like for any other international court or tribunal, the ICC jurisdiction rests ultimately on the
consent of the States parties to the Court’s Statute.
- Criteria for jurisdiction
In order to know if the Court has jurisdiction over certain persons accused to have committed
certain crimes, one needs to combine various criteria and see if they meet. Indeed, it is by
combining the issues pertaining to the Court’s jurisdiction ratione materiae, ratione temporis,
ratione loci and ratione personae, that one can have a clear picture of the Court’s jurisdiction and
conclude that the Court may prosecute certain persons, or not.
o Ratione materiae
The Court’s jurisdiction must first be envisaged from a material point of view: what are the crimes
under the ICC jurisdiction?
According to Article 5 of the ICC Statute, the jurisdiction of the Court is “limited to the most
serious crimes of concern to the international community as a whole”. Those crimes are: genocide,
crimes against humanity, war crimes, and the crime of aggression.
The precise legal definitions of each of those crimes is to be found in the Court’s Statute, as
completed by what is called the “Elements of crimes” which have been adopted by the Assembly of
the States Parties pursuant to Article 9 of the Statute and which assist in the interpretation and
application of the definitions of crimes found in the Statute.
It is not possible to detail here what are the various constitutive elements of each of the crimes
falling within the Court’s jurisdiction.
However, the crime of aggression deserves a special attention because its definition has been
added in the Statute by amendments adopted by the Assembly of States Parties in 2010 and which
still need to be ratified by 30 States parties at least. Moreover, the exercise of jurisdiction by the
Court over the crime of aggression is subject to a decision taken by two-thirds of the States Parties
after 1st January 2017. So, for now, the ratione materiae jurisdiction of the Court is limited to
genocide, crimes against humanity and war crimes. Moreover, and even if prosecution relates to
some of those serious crimes, the Court’s jurisdiction is limited to cases of a sufficient gravity:
lacking such gravity, the case can be found inadmissible under Article 17 of the Statute.
o Ratione temporis
It must also be envisaged from a temporal point of view: when were those crimes committed?
The temporal jurisdiction of the Court is regulated under Article 11 of the Statute. Ratione
temporis, “[t]he Court has jurisdiction only with respect to crimes committed after the entry into
force of this Statute”. In other words, crimes that occurred before 1st July 2002 do not come within
the jurisdiction of the Court.
For a State that has becomes party to the Statute after 1st July 2002, the date to be taken into account
is the date of the entry into force of the Statute for that State. However, a new State party may make
a declaration by which it accepts that the Court exercises its jurisdiction with respect to crimes
committed before the date it became bound by the Statute.
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Ø When it acceded to the ICC Statute in 2015, Palestine made such declaration, accepting the
Court’s jurisdiction since 13 June 2014.
o Ratione loci and personae
Furthermore, the Court’s jurisdiction must be analysed from a spatial point of view: where did those
crimes take place?
And also from a personal point of view: who comes within the jurisdiction of the Court?
Under Article 12 of the Statute, the jurisdiction of the ICC is either territorial or personal, or both:
the Court has jurisdiction over crimes that have either been committed on the territory of a State
party, or, by extension, on board of a vessel or an aircraft that is registered in the State party, but the
Court has also jurisdiction over the persons having the nationality of any of the States parties. So, if
a crime is committed on the territory of a State party, by a national of that State or by a national of
another State party, the Court has jurisdiction.
But the Court has also jurisdiction if the crime that occurred on the territory of a State party has
allegedly been committed by a person who does not have the nationality of any of the other States
parties. Likewise, the Court has jurisdiction over the nationals of States parties when they commit
crimes in the territories of States that are not party to the ICC.
§ Exception: Article 15bis, paragraph 5
The exception to the latter principle is to be found in Article 15bis, paragraph 5, in relation to the
crime of aggression: by the time it will be able to exercise jurisdiction over the crime of aggression,
the Court will however have no jurisdiction over the nationals of a State which is not party to the
Statute even in case of the aggression that they are accused of took place on the territory of a State
party.
§ Age and status
Ratione personae, it must be added that the Court has jurisdiction over persons provided that they
have reached the age of eighteen at the time of the alleged commission of the crime (Article 26). If
that is the case, the official capacity of the person accused or its status as head of State, head of
Government, etc. is irrelevant and no immunity, either under internal law or under international
law, is an obstacle to the exercise of the Court’s jurisdiction (Article 27).
§ Referral or investigation proprio motu
In those cases of territorial or personal jurisdiction, the Court exercises its jurisdiction either
because a State party has referred a situation to the Prosecutor, and the State referral is regulated
under Article 14, or because the Prosecutor has initiated a prosecution on its own initiative, that is
proprio motu, in accordance with Article 15.
§ Extension of the territorial and personal scope
The territorial and personal scope of the ICC can be extended by a resolution of the Security
Council of the United Nations, acting under Chapter VII of the Charter.
Under Article 13(b) of this ICC Statute, the Security Council is entitled to refer to the ICC
Prosecutor “a situation in which one or more of such crimes appears to have been committed”. The
Security Council must act for that purpose under Chapter VII, having concluded that the situation
constitutes a threat to the peace, a breach of the peace, or an act of aggression.
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The Security Council has already referred two situations to the ICC: the crisis in Darfur, under
Resolution 1593 of 2005, and the situation in Libya, under Resolution 1970 in 2011. In both cases,
neither Sudan nor Libya are parties to the Rome Statute, but the Security Council has expanded the
ICC’s jurisdiction to the situations which took place in those countries.
It is important to note that when it acts under Chapter VII in order to expand the Court’s
jurisdiction, the Security Council may only refer to the Prosecutor a situation. It may not refer the
crimes committed by one side of the conflict and not the crimes committed by the other side, or the
crimes committed by certain persons only.
- Principle of complementarity (Article 17.1.a))
The exercise by the Court of its jurisdiction is always subject to the principle of complementarity,
even when it is seized by the Security Council. As opposed to the primacy enjoyed by the ICTY and
the ICTR over national jurisdictions, the ICC only has a complementary jurisdiction: a case is
inadmissible at the ICC if it is being duly investigated or prosecuted by a State which has
jurisdiction over it. It is not important whether the State exercising jurisdiction is party to the ICC
or not.
However, and as stated under Article 17, if that State is “unwilling or unable genuinely to carry
out the investigation or prosecution”, the ICC may exercise its jurisdiction.
In assessing the willingness of the State to conduct criminal proceedings against the accused, the
Court looks into the motives of those proceedings, whether they are conducted in an impartial way
and independent way, or not. If it appears that the domestic proceedings are not genuine and are
only there to shield a person from his or her criminal responsibility, the sheer existence of such
proceedings will not prevent the Court from exercising its jurisdiction (Article 17.2).
On the basis of the complementarity principle, the Appeals Chamber confirmed in July 2014 the
decision of the Pre-Trial Chamber which ruled in October 2013 that the case against Abdullah Al-
Senussi, the former head of the Libyan military intelligence, that this case was inadmissible as it
was subject to domestic proceedings conducted by the Libyan competent authorities and that Libya
was willing and genuinely able to carry out such investigation.
- Non bis in idem
To the same extent, the principle of non bis in idem applies: a person cannot be tried by the ICC if
he or she has already been tried by a domestic court, provided that such trial was genuine.
- Deferral of investigation or prosecution (Article 16)
Finally, even if the Court has jurisdiction and is entitled to exercise it, the UN Security Council may
nevertheless decide to stay the investigation or prosecution for a renewable period of 12 months.
Such deferral needs to be decided by a resolution adopted under Chapter VII of the Charter.
The Security Council has used its deferral powers under Article 16 of the ICC Statute on two
similar occasions.
Ø Under Resolution 1422 (2002), upon the suggestion of the United States, the Security
Council requested that the nationals of a State not party to the Rome Statute who participate
to UN established or authorized operations be not prosecuted. Such decision was extended
for another year by Resolution 1487 (2003), but it has not been renewed further.
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ICC proceedings
Proceedings are essential in any criminal legal system.
Please watch the following video about ICC proceedings. It has been produced by the ICC
information department:
https://www.youtube.com/watch?v=OVxmVc5WRqA&index=6&list=PLz3-Py_E3klC_i-
OFMC92fGi_gVj8SAi2.
Additionnally, you may want to revise your knowledge about the ICC by watching the following
video which contains a general presentation of the Court, including the proceedings. It was issued
in 2014 by the ICC information department:
https://www.youtube.com/watch?v=1K4Y8iqLzxQ&list=PL7DF9C0E3E9A52F73&index=29.
To go further: ICC in context
You are invited (not requested) to watch the following 5 videos from the Open University.
They all relate to the work of the ICC and include contributions from my colleague Robert Cryer of
the University of Birmingham. The videos were uploaded in March 2013; you must be aware that
the procedural history of some cases mentioned has since evolved. In particular, the Appeals
Chamber confirmed in May 2014 that the case against Saif al-Islam Gaddafi was admissible
because Libya failed to establish that the charges brought against him in Libyan courts were the
substantially the same as those he was facing in The Hague.
The Court - Inside the International Criminal Court (1/5):
https://www.youtube.com/watch?v=PR8qPyCrrsM
The Offices - Inside the International Criminal Court (2/5):
https://www.youtube.com/watch?v=jz7fOtThE6E
The Barristers - Inside the International Criminal Court (3/5):
https://www.youtube.com/watch?v=pDQepfY3igM
Thomas Lubanga case study - Inside the International Criminal Court (4/5):
https://www.youtube.com/watch?v=QjD95gmn87c
Saif al-Islam Gaddafi case study - Inside the International Criminal Court (5/5):
https://www.youtube.com/watch?v=SBSP3GCLNQo
V. DOMESTIC COURTS
Turning to domestic courts

Individuals have rarely access to international courts and domestic courts are very often the most
natural legal venue to demand the respect of rights and to seek justice.
This last section of Week 7 about seeking justice will address the most common international law
hurdle when a claim against a foreign State, a foreign official or an international organization is
presented to a domestic court or tribunal: jurisdictional immunities.
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In order to clearly understand the issue that we are going to address, it is important to clarify first
what we are not going to deal with.
1) We are not going to address the domestic law issues that arise when individuals or other
legal persons decide to sue a government, State agencies or State officials, before their own
national courts and tribunals. In some jurisdictions, the State and all its sub-divisions and
officials are treated like any other litigant and there is no limit to the possibility of bringing a
contract claim or a tort claim against any of them, or to request that an administrative act be
quashed. In other jurisdictions, the State and its sub-divisions and officials are to a certain
degree immune from the domestic courts scrutiny, even in legal systems that are deeply
marked by the requirement of the rule of law.
Ø For instance, domestic law doctrines derived from the separation of powers, like the
political question doctrine in the United States, or the theory of “actes de
gouvernement” in France, or any other similar domestic law doctrine, allow to shield
certain foreign policy decisions or other highly sensitive political decisions from
judicial scrutiny.
And those important issues cannot be of interest to us in this course because they are
essentially based on constitutional, domestic traditions and they remain unregulated by
international law. Because every domestic legal order is different, and absent any specific
treaty provision, treaty obligation, international law is not concerned with those issues and
they will not be covered in this course.
2) Another issue that we are not going to cover relates to the rules of international law that
apply when the property of a foreign State or the property of an international organization is
seized in order to enforce a judgment by which that foreign State or the organization has
been ordered to pay compensation.
Those issues relate to measures of constraint and attachment of property and assets.
International law has something to say about those issues, but it makes no sense to speak
about the rules of international law in that regard if one does not have a clear understanding
of the domestic enforcement procedures. However, because those procedures vary from
State to State and are of interest to some very specialized attorneys, this course will not
cover enforcement measures against foreign State property or the asset of international
organizations.
Rather, we are going to address:
1) The international law obligations which prevent domestic courts from entertaining
substantive claims when the respondent in a case is a foreign State or an international
organization. Those obligations on the side of the domestic courts are corresponding rights
of the State or of the organization which is sued before the foreign domestic court. The
foreign State or the international organization will claim the benefit of jurisdictional
immunities so that the domestic court will have to abstain from passing judgment on their
impugned action.
But to what extent do jurisdictional immunities exist to the benefit of States or organization?
2) The rules of international law relating to the immunity of State officials when they are
prosecuted abroad on account of alleged crimes.
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And again: who benefits from such immunities and in which circumstances do they exist?
- Immunity ≠ irresponsibility ≠ impunity
Before engaging with the concrete rules of international law on the immunities of States, of
international organizations and of State officials, it is important to stress that immunity does not
equate with irresponsibility and does not mean impunity. The fact that a subject is exempt from
judgment by certain national authorities does not mean that its impugned actions are legal, neither
does it mean that it is not responsible for what it did and that no court, no tribunal will ever be able
to decide on such responsibility.
The rules on jurisdictional immunities are rules that, by forbidding some judges to adjudicate,
allocate the authority to pass judgement to other judges. And those judges are most usually the
national judges of the State or of the officials concerned.
But of course, it is often the fact that States do not have a proper and independent judiciary, a fair
and impartial judicial system. This leads to consider that justice should be sought abroad, by turning
to the courts of another State, where courts are reliable and enjoy a real constitutional
independence. This is perfectly understandable, and the reason why immunities are today very
much criticized and contested as an illegitimate obstacle in the pursuit of justice.
However, one needs to be careful in that regard because getting away with immunities will maybe
result on the short term with justice for victims, but, on the longer term, this may result in some
already powerful States exercising their authority, through their courts and tribunals, over other
States and over organizations, to the detriment of the sovereignty, the independence and the
autonomy of those subjects. In other words, the rules on immunity may at first sight seem
outrageous and unjust, but if one criticizes and rejects them, one should carefully think of what the
world would be without them. Because doing away with immunities would of course have to be
reciprocal: if the courts of Western States begin to adjudicate claims against other States, even
States that are called rogue States, one should not expect the courts of those other States to pay
respect to the immunity of the Western States. Can you imagine the tensions resulting from
everyone judging everyone, about disputes that would be very much politically loaded? Would such
a chaos serve the cause of justice and peace? And what remains of the authority of a judge if the
judgments it issues remains dead letter and cannot be enforced?
We’re not saying that the rules on immunity do not have to evolve to a certain degree. We’re just
saying that, in the world as it stands today, they continue to fulfill an important role and public
purpose to the benefit of the world community.
State immunity from jurisdiction
- A customary rule
The immunity of States from the jurisdiction of other States is a customary rule of international law
which has been solidly rooted in the practice of States for centuries. There is no doubt that the
practice is abundant and that the opinio juris of States is regularly expressed.
As the ICJ has put it in the Germany v. Italy case:
“That practice shows that, whether in claiming immunity for themselves or according it to others,
States generally proceed on the basis that there is a right to immunity under international law,
together with a corresponding obligation on the part of other States to respect and give effect to
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that immunity.” (ICJ, Jurisdictional immunities of the State (Germany v. Italy: Greece
intervening), ICJ Reports, 3 Feb. 2012, para. 56, p. 123)
The Court went on to stress that:

“[...] the rule of State immunity occupies an important place in international law and
international relations. It derives from the principle of sovereign equality of States, which, as
Article 2, paragraph 1, of the Charter of the United Nations makes clear, is one of the fundamental
principles of the international legal order. This principle has to be viewed together with the
principle that each State possesses sovereignty over its own territory and that there flows from that
sovereignty the jurisdiction of the State over events and persons within that territory. Exceptions to
the immunity of the State represent a departure from the principle of sovereign equality. Immunity
may represent a departure from the principle of territorial sovereignty and the jurisdiction which
flows from it.” (Ibid., para. 57)
- Deriving from the principle of sovereign equality of States

The basis of the immunity of States from the jurisdiction of foreign courts is thus the sovereign
equality of States, which translates into the principle according to which equal subjects do not judge
each other (in latin: par in parem non habet jurisdictionem).
If the existence, legal nature and foundation of the jurisdictional immunity of States is
unquestioned, its precise contours under customary international law has evolved over time and is
still subject to some controversy today.
- Texts on immunity
o Domestic statutes
Furthermore, some common law countries have enacted laws and statutes relating to the immunity
of foreign State before their domestic courts.
Ø Among those pieces of domestic legislation, the US Foreign Sovereign Immunities
Act (1976), the British State Immunity Act (1978) or the Australian Foreign States
Immunities Act (1985) offer famous examples.
Whereas States are of course free to direct their judges on issues of State immunity, the domestic
laws enacted for that purpose must of course conform with the rules on State immunity that exist
under customary international law. However, because customary rules result from the practice of
States (see Week 3), the domestic statutes, together with the national courts’ practice on issue of
State immunity, will greatly influence the content of the customary rules. The question of
“conformity” of national laws and practices is in this field a delicate matter as international rules
evolve with the practice of States.
o UN Convention on Jurisdictional Immunities of States and their Property (2005)
In order to increase consistency and the certainty of the international law rules on the issue of State
immunity, the International Law Commission has been tasked with the codification and
development of the law in that area. This resulted in the adoption by the General Assembly, in
December 2004, of the UN Convention on Jurisdictional Immunities of States and their Property,
which opened for signature in New York on 17 January 2005.
Lacking the number of ratifications required (30), the Convention has not yet entered into force.
However, the Convention reflects customary international law to a large extent and is already
referred to in practice.
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o European Convention on State Immunity (1972)

At the regional level, the European Convention on State immunity, signed in Basel on 16 May
1972, is binding between eight member States of the Council of Europe.
An additional protocol to the Convention established a European Tribunal in matters of State
Immunity which has jurisdiction only between six member States of the same organization.
o Inter-American Convention on Jurisdictional Immunity of States
In the Americas, the Inter-American Juridical Committee of the Organization of American States
drafted in 1983 an Inter-American Convention on Jurisdictional Immunity of States, but it never
entered into force.
- From absolute jurisdictional immunity to restrictive immunity
o Absolute immunity
For a long time, State immunity has been considered to be absolute in the sense that foreign States
were completely immune from the jurisdiction of local courts and that none of their acts could be
judged. No foreign State could ever be a respondent in any domestic case; or rather, because the
case was brought against a foreign State, the local courts had to decline jurisdiction irrespective of
the nature of the impugned act of the foreign State.
o Challenge by the Italian and Belgian courts of cassation
The absolute immunity doctrine was first challenged by the Italian and Belgian courts of cassation,
at the beginning of the 20th century. Because States were more and more engaged in trade matters,
the absolute immunity was considered to be an unfair and disproportionate advantage to the foreign
State when its acts did not relate to its sovereign status, i.e. when they were not performed by virtue
of governmental powers.
o Restrictive immunity: acta jure imperii and acta jure gestionis
The doctrine of absolute immunity was gradually replaced by a doctrine of restrictive immunity: a
difference was made between acts of sovereignty of foreign States (acta jure imperii), which
attracted immunity, and non-sovereign acts (acta jure gestionis), which could be reviewed by local
courts.
The distinction is today well-established in general international law. The distinction between acts
of sovereignty and non-sovereign acts has nothing to do with the legality of such acts, but it relates
to the capacity in which the State acted: was the act performed because the State has sovereign
powers, or not? As the ICJ stressed:
“The terms 'jure imperii' and 'jure gestionis' do not imply that the acts in question are lawful but
refer rather to whether the acts in question fall to be assessed by reference to the law governing
the exercise of sovereign power (jus imperii) or the law concerning non-sovereign activities of a
State, especially private and commercial activities (jus gestionis).” (ICJ, Jurisdictional immunities
of the State (Germany v. Italy: Greece intervening), ICJ Reports, 3 Feb. 2012, para. 60, p. 125)
§ Criteria for differentiation: purpose, object or nature of the act

If the conceptual distinction between acta jure imperii and acta jure gestionis is now well-accepted,
the criteria for differentiating both has varied in practice.
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Three criteria are possible: either the purpose of the act is taken into account, or its object, or its
nature. Depending on the criteria used, State immunity from jurisdiction will be more or less
broader: while the purpose of the act tends to broaden immunity, focusing on the nature of the act
will limit the scope of the acts immune from foreign courts.
Ø Take for instance a contract by which a State buys socks for its army.
If the criteria is the object of the act (i.e. socks) or the nature of the act (i.e. a
contract), such an act by the State will not attract immunity from jurisdiction because
anyone can buy socks.
But if the criteria is the purpose (i.e. equipping the soldiers of the State), the act will
have to be considered as a sovereign act because only States have armies.
Ø Now, if the contract is not for socks but for fighter jets, the act remains jure gestionis
under the nature criteria (it is a sale contract), but becomes jure imperii both under
the purpose and the object criteria (because only States buy fighter jets).
In other words, there is a gradation from the nature of the act, to its object and then to its purpose –
immunity being more restricted if the criteria of the nature of the act is preferred, a bit less restricted
under the object criteria, and then immunity is wider in scope if the purpose of the act serves as the
criteria. To put it differently: the purpose criteria is the more generous to foreign respondent States,
while the nature criteria is the more generous to domestic claimants.
§ The UN Convention on Jurisdictional Immunities of States and their Property
The UN Convention on Jurisdictional Immunities of States and their Property favours the nature
criteria, but does not exclude the reliance on the purpose criteria. Article 2, paragraph 2, of the
Convention strikes a compromise between diverging domestic case-law.
If rejecting a plea of State immunity does not constitute a breach of international law when the
impugned act is a commercial transaction (acta jure gestionis), it is also accepted today that foreign
States do not enjoy immunity from jurisdiction when they have contracted a contract of
employment with individuals, provided that the work is to be performed, in whole or in part, in the
territory of the State whose courts have been seized by the employee. The rule is reflected in
Article 11 of the UN Convention on Jurisdictional Immunities of States and their Property, but is
subject to exceptions, notably if the work relates to the performance of functions in the exercise of
governmental authority.
Furthermore, States do not enjoy immunity for pecuniary claims in respect of acts committed by the
foreign State on the territory of the forum State (i.e. the State of the courts before which the civil
proceedings are brought) when those acts have caused death, personal injury or damage to property.
This “territorial tort exception” to immunity from jurisdiction has historically concerned road
traffic accidents and other insurable risks. The exception is codified under Article 12 of the UN
Convention on Jurisdictional Immunities of States and their Property and requires that the
author of act or omission causing the injury be present on the territory of the forum State at the time
of the act or omission.
Ø There is some debate as to the extent of the exception and in particular, whether it
applies to acta jure imperii or only to acta jure gestionis. One must admit that if
restricted to acta jure gestionis, the “territorial tort exception” would not really
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amount to an exception to immunity, but to an extension to some tortuous acts or

omission of the category of non-sovereign acts.
If the ICJ declined to resolve that question, it nevertheless made clear that the
“territorial tort exceptional” does not apply to a specific category of sovereign acts,
i.e. the “acts committed on the territory of the forum State by the armed forces of a
foreign State, and other organs of State working in co-operation with those armed
forces, in the course of conducting an armed conflict” (ICJ, Jurisdictional immunities
of the State (Germany v. Italy: Greece intervening), ICJ Reports, 3 Feb. 2012, para.
65, p. 128; see the reasoning of the Court at paras. 65-79).
- In limine litis
When a foreign State is defendent in a case, it must claim immunity from jurisdiction in limine litis,
i.e. at the very beginning of the proceedings.
Indeed, participating in the proceedings and submitting briefs on the merits may amount to a waiver
of immunity. Likewise, filing a counter-claim amounts to accepting the jurisdiction of forum State
and constitutes a waiver of immunity.
If the foreign respondent State does not appear in court, it is for the judge to determine on its own
initiative, i.e. proprio motu, if the foreign State enjoys immunity for the impugned act (see Article 6
of the UN Convention on Jurisdictional Immunities of States and their Property).
- Effect of immunity
When it exists, the jurisdictional immunity of the foreign State has the effect of depriving the local
courts that would otherwise have jurisdiction from their power to adjudicate on the claim: as the ICJ
stated, immunity is a departure from the jurisdiction (“dérogation [...] au pouvoir de jurisdiction”)
which flows from territorial sovereignty (ICJ, Jurisdictional immunities of the State (Germany v.
Italy: Greece intervening), ICJ Reports, 3 Feb. 2012, para. 57, p. 124).
o Immunity and right to a judge (Art. 6 ECHR)
The immunity of the foreign State has therefore the effect of depriving individuals from accessing
courts, and it is therefore a limitation to the right to a judge, which is protected under various
human rights instruments (notably Article 6 of the European Convention on Human Rights and
Article 14 of the International Convenant on Civil and Political Rights).
o Pursuing a legitimate aim
However, such limitation has been considered by the European Court of Human Rights (see i.a.
ECtHR, McElhinney v. Ireland, 21 Nov. 2001, paras. 33-40; ECtHR, Fogarty v. UK, 21 Nov. 2001,
paras. 32-39) as pursuing a legitimate aim (i.e. “the grant of sovereign immunity to a State in civil
proceedings pursues the legitimate aim of complying with international law to promote comity and
good relations between States through the respect of another State’s sovereignty”) and as not
imposing a disproportionate restriction on the right of access to court, the European Convention of
Human Rights having to be interpreted not “in a vacuum” but by taking into account the relevant
rules of international law (Article 31 (1) c) of the Vienna Convention on the Law of Treaties, see
Week 5).
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o Immunity and breach of a jus cogens norm

Furthermore, foreign States enjoy immunity from jurisdiction under customary international law
even when their impugned sovereign act consists in an alleged violation of an obligation under a
peremptory norm of general international law (jus cogens) (see ECtHR, Al Adsani v. UK, 21 Nov.
2001, paras. 52-67).
It has been argued that such result cannot stand because the immunity rule would conflict with the
jus cogens rule, and that because jus cogens must prevail over any other conflicting obligation, the
rule of immunity must give way.
However, as the ICJ made clear, there is no conflict between the rule granting immunity and the jus
cogens rules allegedly breached:
“Assuming for this purpose that the rules of the law of armed conflict which prohibit the murder of
civilians in occupied territory, the deportation of civilian inhabitants to slave labour and the
deportation of prisoners of war to slave labour are rules of jus cogens, there is no conflict between
those rules and the rules on State immunity. The two sets of rules address different matters. The
rules of State immunity are procedural in character and are confined to determining whether or
not the courts of one State may exercise jurisdiction in respect of another State. They do not bear
upon the question whether or not the conduct in respect of which the proceedings are brought was
lawful or unlawful. That is why the application of the contemporary law of State immunity to
proceedings concerning events which occurred in 1943-1945 does not infringe the principle that
law should not be applied retrospectively to determine matters of legality and responsibility [...].
For the same reason, recognizing the immunity of a foreign State in accordance with customary
international law does not amount to recognizing as lawful a situation created by the breach of
ajus cogens rule, or rendering aid and assistance in maintaining that situation, and so cannot
contravene the principle in Article 41 of the International Law Commission’s Articles on State
Responsibility.” (ICJ, Jurisdictional immunities of the State (Germany v. Italy: Greece
intervening), ICJ Reports, 3 Feb. 2012, para. 93, p. 140)
Immunity from jurisdiction of international organizations

International organizations endowed with a separate international legal personality generally enjoy
immunity from jurisdiction.
However, unlike States, international organization are not sovereign entities. Therefore, the idea
that States must refrain from passing judgment on one another out of respect for their sovereignty
cannot be transposed to international organizations. Par in parem non habet jurisdictionem does not
apply in respect of international organizations.
- Immunity established under treaties
In contrast to what happens with States whose immunities exist as a matter of customary
international law, immunities of international organizations are established under treaties.
Such treaty can be the instrument under which the organization has been established, or it can be a
separate convention, or both.
Ø For instance, under Article 105 of the UN Charter, the UN “shall enjoy in the
territory of each of its Members such privileges and immunities as are necessary for
the fulfilment of its purposes”.
Pursuant to that provision, the member States of the UN have adopted in 1946 a
Convention on the privileges and immunities of the United Nations.
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Many organizations are granted immunity from jurisdiction and also immunity from measures of
constraint in order to protect their property and assets.
Some have argued that the multiplication of those treaties have created a practice resulting in the
emergence of a customary rule of international law under which international organizations would
automatically enjoy immunities.
However, this is much doubtful and has been rejected by some domestic courts. Therefore, it is
rather safe to say that in the absence of a treaty granting immunity to the organization, and a treaty
which is binding on the forum State, the State of the judge seized of the matter, the courts of that
State have no obligation to grant any immunity from jurisdiction to the respondent organization.
- Relating to any of its acts
When granted under a treaty, the immunity enjoyed by the organization usually relates to any of its
acts.
Every act of the organization is indeed presumed to pursue the purposes of the organization. In
other words, the distinction between acta jure imperii and acta jure gestionis cannot be
meaningfully transposed to the situation of international organizations.
- Immunity and right to a judge (Art. 6 ECHR)
Like foreign State immunity from jurisdiction, the immunity enjoyed by an international
organization is a limitation to the right to a judge, as protected under human rights instruments.
However, the difference between States and international organizations in that regard is that
granting immunity to a foreign State does not amount to radically depriving the individual of the
possibility to claim, as he or she could, at least in theory, always sue the foreign State in its own
domestic courts. The same possibility does not exist when it comes to international organizations:
very often, organizations do not have courts and tribunals of their own, so that granting them
immunity results in the absence of any means of redress for the individuals complaining of
their acts.
o A disproportionate restriction
Such result has been considered by the European Court of Human Rights as constituting a
disproportionate restriction to the right to a judge protected under Article 6 of the European
Convention on Human Rights.
The landmark judgments in that regard are Waite and Kennedy v. Germany and Beer and Regan v.
Germany, dating back from 18 February 1999. Both cases related to labour law disputes concerning
the European Space Agency.
The European Court of Human Rights admitted that granting privileges and immunities to
international organizations was a legitimate objective. In particular, the court said that:
“The attribution of privileges and immunities to international organisations is an essential means
of ensuring the proper functioning of such organisations free from unilateral interference by
individual governments.
The immunity from jurisdiction commonly accorded by States to international organisations under
the organisations’ constituent instruments or supplementary agreements is a long-standing practice
established in the interest of the good working of these organisations.
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The importance of this practice is enhanced by a trend towards extending and strengthening
international cooperation in all domains of modern society”.
But in order to be permissible under the Convention, the restriction to the right to a judge resulting
from the immunity of the organization depends on whether individuals benefit from available
reasonable alternative means to protect effectively their rights under the Convention. Because the
European Space Agency had an internal justice system to which labour law disputes could be
submitted, the Court ruled that its immunity was permissible under the Convention.
In other words, in the absence of any means of redress instituted within the organization and
offering a reasonable alternative to domestic courts, the immunity from jurisdiction of the
organization must be set aside by the forum judge whose State is a member of the Council of
Europe.
This is a typical example of a conflict between two treaties: the treaty by which immunity is granted
to the organization and the European Convention on Human Rights. And such conflict is being
solved by a balancing of interests test by the European Court of Human Rights, on the basis of the
legitimate character of the restriction to the fundamental right and the proportional character of such
restriction.
§ Reception
The Waite and Kennedy and Beer and Regan judgments have been followed in many domestic
courts of the members States of the Council of Europe.
As a result, many international organizations having offices in some of the 47 States of the Council
have established internal justice systems in order to keep their immunities.
Sometimes, the Waite and Kennedy and Beer and Regan judgments have been interpreted as
requiring that in the absence of any means of redress instituted within the organization, its
immunity must automatically be set aside. However, such radical interpretation is difficult to
reconcile with the express requirement, under those judgments, to assess proportionality on a case-
by-case basis, in light of all the circumstances of the case.
Furthermore, in a case concerning the immunity of the United Nations in Dutch courts for its
alleged responsibility in the genocide at Srebrenica, the European Court of Human Rights has
rejected what it called any “absolute” interpretation of its previous judgments and has refused to
consider that “in the absence of an alternative remedy the recognition of immunity is ipso facto
constitutive of a violation of the right of access to a court”. Therefore, it is possible that the
immunity of the organization be upheld even in the absence of any alternative means of redress,
depending on the specific circumstances of the case.
Ø This is what the Dutch courts did in the Srebrenica case to the benefit of the UN,
while they recognized the responsibility of the Dutch State in the events.
Ratione personae immunity of foreign State officials
Let’s turn now to one of the most controversial issues relating to immunity, that is the immunity of
foreign State officials from criminal proceedings, notably when they are prosecuted abroad on the
basis of treaties providing for a duty to prosecute certain grave crimes, like the crime of torture.
Ø You certainly remember the Pinochet case in English courts by which in 1999 the
House of Lords finally denied immunity to the former head of State of Chile.
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Ø You also remember the Arrest Warrant case, in which the International Court of
Justice affirmed that Belgium had breached the total immunity from criminal
proceedings enjoyed by the Foreign Affairs Minister of the Democratic Republic of
Congo when Belgium issued an international arrest warrant against him.
Those two cases seem to be incompatible, as one case denies immunity while the other one affirms
it. However, those two cases can perfectly be reconciled by distinguishing between the immunity
ratione personae and the immunity ratione materiae of foreign officials.
Immunity ratione personae

- Concerned foreign officials
o Heads of State, heads of Government and Foreign Affairs Ministers
Following the Arrest Warrant case, it is now settled that under international customary law, acting
heads of State, heads of Government or Foreign Affairs Ministers, enjoy total immunity ratione
personae from foreign criminal prosecution, be it for acts performed privately or acts performed
officially, and indistinctively of whether those acts have been performed before or during their term
of office.
o Diplomats and members of special missions
The same is true for diplomats and members of special missions, but only in relation to possible
criminal proceedings in the States where they are accredited or on mission, and this is the Vienna
Convention on Diplomatic Relations of 1961, Article 31(1) and the Convention on Special
Missions, Convention of 1969, also Article 31(1).
o Other persons
It is questionable whether other persons than heads of State, heads of Governments, Foreign Affairs
Ministers also enjoy personal immunity by the sheer fact of the nature of their official functions.
Are, for instance, vice-presidents or defence ministers, entitled to a personal immunity?
This question arises because the enumeration by the ICJ in the Arrest Warrant judgment was clearly
not exhaustive as the Court referred to “(...) certain holders of high-ranking office, such as the
Head of State, Head of Government, and Ministers for Foreign Affairs (...)”.
This being said, there is very little practice to support a generous extension of the beneficiaries of
such personal immunity.
§ Who, by virtue of their office, embody or personify the State
In order to assess the benefit of immunity ratione personae to other persons under customary
international law, one crucial element has to be taken into account: if indeed, as the ICJ ruled, such
immunity is to be reserved to “holders of high-ranking office”, it is because only those persons “by
virtue of their office” embody or personify the State.
§ Who need to be engaged on foreign affaires
Some domestic courts have additionally required that the foreign official needed to be engaged on
foreign affairs in order to enjoy an immunity ratione personae.
This question is debated at the International Law Commission.
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- Temporary character
Immunity ratione personae is temporary because it ceases to exist when the high officials
protected by it leave office or, earlier, if their State waives it. Such renunciation by the State to the
immunity of its high-ranking official does not entail any renunciation by the State to its sovereign
immunity as such as long as its act concerned was jure imperii.
- A shield against any prosecution
So defined, immunity ratione personae protects, as the ICJ stated, from “any act of authority of
another State which would hinder [the high official] in the performance of his or her duties”.
Immunity ratione personae is total and is a shield against any prosecution, even when it relates to
the gravest breaches of international criminal law.
- Not peremptory
However, because immunity ratione personae does not have, like any other rule on immunity, a
peremptory character, such immunity can be set aside between contracting parties by a specific
treaty rule.
Ø For instance, and as recalled earlier in the course, immunity ratione personae does not apply
between States parties to the International Criminal Court Statute for the purpose of the ICC
jurisdiction and cooperation with it (Article 27).
However, due to the relativity of treaties, immunity ratione personae must be respected when a
non-party high representative is concerned, and this is Article 98 of the ICC Statute. Even, it has
been argued, when the ICC jurisdiction is triggered by a Security Council referral.
Ratione materiae immunity of foreign state officials
- Reason for existence
Immunity ratione materiae does not exist out of the fact that the foreign official personally
embodies the State, which is the reason for the immunity ratione personae, knowing that the latter
stands as long as the person is a high-level representative of the foreign State.
Rather, immunity ratione materiae exists because the act of the official is attributed to the State
(that explains why immunity ratione materiae is also called “official acts immunity”) and the
State itself enjoys immunity from jurisdiction. The reason for immunity ratione materiae is that the
acts of the State official is attributed to the State and that if the State itself is immune from
jurisdiction, its representative should be also immune, otherwise one could get at the State through
its representative.
- Representatives of States acting in that capacity
As the UN Convention on Jurisdictional Immunities of States and their Property recalls, it is usually
not disputed that all “representatives of the State acting in that capacity” enjoy immunity ratione
materiae for the official acts so performed, even if they have acted ultra vires.
‘Representatives’ of States include of course the head of State, head of Government and Foreign
Affairs Minister referred to earlier, as well as diplomats of the State.
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o Not limited to persons specifically embodying the State

However, in contrast with what is required for triggering immunity ratione personae, the concept of
“representatives of the State” for the purpose of immunity ratione materiae is not limited to persons
specifically embodying or personifying the State.
Rather, that concept encompasses all State organs within the meaning of article 4 of the ILC
Articles on State responsibility, together with “all the natural persons who are authorized to
represent the State in all its manifestations” to use the ILC comments on the UN Convention on
State immunity.
o Official acts only
Therefore, it makes sense to use the attribution rules that we surveyed during week 6 about
international responsibility of States for determining whether the conduct of the State representative
was done in an official capacity or a private capacity, knowing that immunity ratione materiae only
protects official acts.
Immunity ratione materiae extends to acts jure imperii and acts jure gestionis, provided that they
were not performed in a private capacity.
- Permanent character
Immunity ratione materiae continues to exist after the end of the official functions of the
representative, and that’s the main difference with ratione personae immunity.
And for instance, Article 39(2) of the 1961 Vienna Convention on Diplomatic Relations
specifically provides that diplomats continue to benefit from criminal immunity after the end of
their accreditation regarding all acts performed in the exercise of their diplomatic functions.
Immunity ratione materiae is controlled by the foreign State, not only in the sense that it can be
waived by that State like immunity ratione personae, but also in the sense that it must be claimed
by the foreign State.
As the ICJ ruled in the Djibouti v. France case:
“The State which seeks to claim immunity for one of its State organs is expected to notify the
authorities of the other State concerned.
This would allow the court of the forum State to ensure that it does not fail to respect any
entitlement to immunity and might thereby engage the responsibility of that State.
Further, the State notifying a foreign court that judicial process should not proceed, for reasons of
immunity, against its State organs, is assuming responsibility for any internationally wrongful act
in issue committed by such organs.”
It is to be noted that the link established by the Court between the claim made by the State in favour
of the immunity ratione materiae of its representative and its international responsibility does not
exist with the same strict necessity as far as immunity ratione personae is concerned, as the latter
immunity may relate to private acts for which no international responsibility of the State exists.
- Not peremptory
Last but not least, and like immunity ratione personae, immunity ratione materiae does not apply
for the purpose of the ICC jurisdiction between State parties to the Statute.
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- Grave crimes exception?

In light of all this, the current question is to know whether a State representative can still enjoy
immunity ratione materiae when accused of crimes in violation of prohibitions enshrined in jus
cogens norms.
As we have seen, immunity ratione personae is total and absolute and protects even against
prosecution relating to such grave breaches. However, immunity ratione personae is only
temporary and ceases to exist at the end of the official functions, so that it does not result in
impunity but it only postpones to later prosecution for crimes that are usually not subject to a statute
of limitations.
By contrast, immunity ratione materiae survives after the end of the official functions. Therefore, a
possible exception to immunity ratione materiae for grave breaches seems to be an important
element to enhance the fight against impunity.
Ø The Pinochet case offers an illustration of such an exception, but it is still debated if that
case reflects the current status of customary international law.
Ø In the Germany v. Italy case, the Court ruled in that case that “under customary
international law as it presently stands, a State is not deprived of immunity by reason of the
fact that it is accused of serious violations of international human rights law or the
international law of armed conflict”.
This may indicate that the Pinochet case was wrong and that no exception to immunity
ratione materiae for State representatives exists, even when accused of grave crimes.
However, the Court emphazised that its conclusion on the issue of State immunity is without
prejudice to the “question of whether, and if so to what extent, immunity might apply in
criminal proceedings against an official of the State”.
As in the Pinochet case, exceptions to immunity ratione personae could could be grounded in the
obligation to prosecute grave crimes enshrined in various treaties: because such obligation to
prosecute exists, the immunity ratione materiae which is otherwise unlimited in time should give
way between contracting parties.
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Week 8: Upholding peace

I. PROHIBITION OF THE USE OF FORCE
International law and violence

The course ends where it actually began, i.e. with issues of war and peace (as a reminder, the
historical foundation of modern international law is usually traced back to the peace of Westphalia
which put an end to the Thirty Years war).
And it is often when addressing issues of war and peace that international law enters the territory
where its own existence is put in doubt. International law is a promise of peace and coexistence
between nations of the world, but that promise has been so many times disappointingly not kept that
doubts abound about the effectiveness of international law. War and peace are the twilight zone of
international law.
Before addressing the rules relating to international peace and security, let’s say a few words about
the incestuous relationship between violence and law. The relationship between violence and law
can indeed be called incestuous because if law reflects a certain ordering of social life, and therefore
a certain equilibrium between social forces, there is no social order through law without a certain
degree of legitimate violence. Law, which is the opposite of violence, must, nevertheless and
ultimately, rest on some form of coercion in order to preserve effectively the social order it reflects
and protects. So, the conception of international law as a promise of a sugary world where the use
of armed force would never occur anymore and where resorting to violence would always be wrong
is antithetical to law itself. In other words, law can only regulate violence. By and of itself, law is
not only incapable of completely removing violence from social relations. But, more fundamentally,
it must, to a certain degree, rely on legitimate forms of violence to sustain itself.
This is true in domestic legal orders, where violence is banned between citizens, but where the
State apparatus has, through the police and the armed forces, the monopoly on the legitimate use of
violence.
And this is true also in international law. So, instead of simply banning the use of force,
international law should also contemplate what we all hate to contemplate, i.e. resorting to war in
order to protect the global social order. As we shall see in this last part of the course, international
law has developped some more or less clear substantial rules relating to the outlawry of war, and
some procedural rules relating to the use of force in the name of the international community – but
international law is still cruely lacking a set of agreed substantial rules that would help to take
principled decisions when those procedural rules are set in motion.
As we shall see, there is a procedure under which war can be made legal by the Security Council.
But what are the wars that should be made legal? That remains completely unclear from a
normative point of view. Hence, the Security Council procedure remains, to a large extent, a formal
procedure devoid of any substantive values.
Also, when addressing issues of war and peace in international relations and law, it is impossible
not to notice that if those issues are of course of interest to every State of the international
community, but that some States do not have the same military capabilities. Therefore, when
States speak about war and peace and the rules relating to war and peace, States will always take
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into account their own strength or their own weakenesses. In other words, what States say about the
rules relating to the use of force very much depends on their own military capabilities.
Ø For instance, if one has to make a study about anticipatory self-defence and whether it exists
under international law, it would not really come as a surprise that the views of the United
States of America or the views of China on the issue are pretty different from those of, say,
Liechtenstein. And, despite the main principle of equal sovereignty between States, it is
difficult not to take more into account the views of the US or China, rather than the views of
Liechtenstein, when it comes to anticipatory self-defence.
This is just common sense and law does not grow and prosper away from common sense.
From the just war theory to the Hague Conventions (1907)
Let’s trace back the long legal evolution that led to the prohibition to use force enshrined today in
Article 2, paragraph 4, of the UN Charter.
- The “just war” theory
War has been with humanity since time immemorial, and many thinkers and philosophers from all
continents and traditions have reflected upon it. In the Western world, theologians have greatly
influenced the thinking about war through the just war theory, notably by Thomas Aquinas in the
13th century.
There is no need to delve into the distinction between just and unjust wars, but it is important to
realize that by conditioning the righteousness of war to the fact that it be waged by an auctoritas
principis (a public authority), the just war theory has significantly contributed to the centralization
of power through princes and kings and reduced the authority of vassals who were deprived of the
right to wage war on their own.
In other words, the just war theory was distinctively constitutional in essence: of course, by
requiring also that the war be waged for a just purpose and with a right intention, the just war theory
intended to limit collective violence between men. But those additional conditions were also very
much constitutional in nature because the just war theory was primarily designed to provide
princes and monarchs with a roadmap as to when they could, without fearing God’s judgment,
require from their own soldiers to go and kill the enemy, or to go and die in the hands of the enemy.
The just war theory was not so much concerned with the issue of wrongly causing harm to others,
but to a very large extent it was centred about the ultimate moral dilemma that any head of State
still faces today when engaging troops in a foreign war: what are the good reasons entitling the
supreme commander to ask from his soldiers not only that they be killed, but also that they kill
other fellow human beings? And in medieval times, even if you survived the war, killing others, or
other Christians at least, without a good reason was a sin accountable to God, and so was, on the
part of the King, ordering to kill without a just cause.
- War as a sovereign attribute of States
In the Western world, the sovereign State became the only authority to resort to war. Because it was
considered as a sovereign authority, questioning the purpose of the war or the intention to wage it
was said to be contrary to the very notion of sovereignty. Therefore, any war was irrefutably
presumed to be just on both sides.
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Saying that war is necessarily just on both sides waters down the just war theory and reduces it to
nothing. War became a sovereign attribute of States and States were free to resort to war.
o Jus ad bellum and jus in bello

However, this did not mean that war was not regulated to a certain extent. States were free to wage
war, they had a right to go to war, that is a jus ad bellum, but the way war was waged became
increasingly regulated. What was called the laws of war, or jus in bello, or today international
humanitarian law, progressively developed to protect wounded combatants, prisoners of war,
together with civilians that were not taking part in the hostilities. Weapons inflicting unnecessary
wounds were banned, while the distinction between military and civilian targets imposed to
discriminate during the conduct of operations.
- The 1907 Hague Peace conferences
Leaving aside jus in bello and coming back to jus ad bellum, two first limitations on the absolute
freedom of States to wage war came as a result of the 1907 Hague Peace conferences: two
conventions were concluded that limited the jus ad bellum of States:
1) The first convention which deserves to be mentioned relates to the opening of hostilities.
The convention imposes on its parties to make a formal declaration of war when opening
hostilities. This is a purely formal and procedural step which does not really limit the right
to wage war, but it conditions war upon such public formality. It is rather quizzical to note
that the preamble of the convention reads as follows: “Considering that it is important, in
order to ensure the maintenance of pacific relations, that hostilities should not commence
without previous warning”.
War, peace and neutrality were three different “states”, or legal statuses, each with different
rights and duties, and it was possible to shift from the state of peace to the state of war
through a formal declaration of war.
2) The second convention which deserves to be mentioned is more substantial and it relates to
the prohibition to use armed force “for the recovery of contract debts claimed from the
Government of one country by the Government of another country as being due to its
nationals”.
That convention is often referred to as the Drago-Porter convention, as it is named after
the Argentinian minister of foreign affairs, Luis Maria Drago, and the US representative to
the Hague conference and former soldier, Horace Porter. The idea that States should not be
authorized to use force to recover contractual debt was first suggested by Carlos Calvo, a
famous Argentinian international law scholar, who reacted by this proposal to the naval
blockade or gunboat diplomacy imposed by the UK, Germany and Italy on Venezuela when
it could not pay back its debts in 1902.
And all this seems just incredible today, but those were the days: there was a time when it
was perfectly legal to make a country pay its contractual debts by waging war against it.
However, at the beginning of the 20th century, the morality of such policy began to be
questioned, and that is why an agreement was found in 1907 to prohibit the use of force for
that purpose.
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The Drago-Porter convention was thus the first substantial limitation on the freedom of
States to use force.
However, it only concerned a certain category of contractual debts, and furthermore it was
explicitly conditional: if the debtor country did not accept to go to arbitration over its debts,
or did not faithfully conduct the arbitral proceedings or did not implement the award, the
creditor State would be free again to resort to the use of force. In other words, the Drago-
Porter renunciation to use force for a limited purpose was based on a quid pro quo and
reflected the reciprocity which is so much inherent in international law as it is for instance
reflected in the exceptio non adimpleti contractus of the law of treaties that we studied.
Versailles (1919) and the Paris Treaty (1928)
- The 1919 Peace Treaty of Versailles: a limitation to the use of force
By the Peace treaty of Versailles, Germany was made responsible for the war under Article 231 of
the treaty.
It gave rise to the question of the culpability for the war, and the Germans came to resent such
accusation as unjust and legally unfounded. Because, when the first World War began in 1914,
States were still free to use force to settle disputes. Germany accepted responsibility for having
started the war against Belgium because its invasion of Belgium was in violation of Belgium’s
neutrality of which Germany was a guarantor, but Germany’s responsibility vis-à-vis France and
the other allied and associated powers was really a contractual creation of the treaty of Versailles.
The Covenant of the League of Nations transformed war from a bilateral relations issue to a social
problem for all the members of the League.
- Under Article 11 of the Covenant, any war, whether or not affecting a member of the new
organization, any war was said to be of concern to the whole League.
- Between the members of the League, Articles 12, 13, 15 and 16 provided for a system of
settlement of disputes that were likely to endanger peace, a system by which arbitration was
preferred or also the political decisions by the Council of the League.
Member States complying with the procedure were protected from any attack by the other
disputing States, while the State going to war in breach of the Covenant was considered to
have committed an act of war against all the other members of the League.
However, under Article 15 of the Covenant, the member States had the “right to take such
action as they shall consider necessary for the maintenance of right and justice”, including
the use of force, if the Council of the League failed to reach a report.
So, the Covenant tried to limit the use of force but did not outlaw war outright.
- The 1928 Treaty of Paris (Briand-Kellogg Pact): the outlawry of war
In 1928, the Treaty for the renunciation of war as an instrument of national policy was signed in
Paris. It was a joint endeavour of Aristide Briand, the French Foreign Affairs Minister, and the
American Secretary of State Frank Kellogg.
About 60 States became bound by that treaty which, in substance, consisted of two straightforward
provisions:
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- By Article 1, parties to the treaty “solemnly declare[d] in the names of their respective
peoples that they condemn recourse to war for the solution of international controversies,
and renounce it, as an instrument of national policy in their relations with one another”;
- Under Article 2, parties agreed to settle their disputes by peaceful means only.
The Treaty of Paris was a radical step towards what was called at the time the “outlawry of war”.
However, its success was not great and it was blatantly breached when Japan invaded Manchuria in
1931, when Italy invaded Ethiopia in 1935, when the Soviet Union and Germany, acting jointly,
invaded Poland in 1939 and a few months later when the Soviet Union invaded Finland.
However, because the Kellogg-Briand Pact was universally in force by 1939, the Nuremberg
Tribunal was able to use it to serve as a legal basis for the crime against peace.
o Weaknesses
If the Paris treaty was a legal development of fundamental importance, it had nevertheless two
weaknesses:
1) It was never incorporated in the Covenant of the League of Nations, to which the US never
became a member;
2) Second, it was also structured as a quid pro quo in the sense that the failure by one party to
a dispute to settle that dispute peacefully in good faith entitled the other party to the dispute
not to discharge its obligation not to use force.
This reciprocity element was made clear by the drafters of the Treaty when they submitted it
for approval to their respective parliaments.
This quid pro quo structure of the prohibition to use force was abandoned when the United
Nations Charter was drafted. The Charter is of course a treaty, but by the Charter, the logic
of the outlawry of war shifted from a contractual relationship to an institutional issue.
Article 2(4) of the UN Charter
Article 2, paragraph 4, of the UN Charter is the fundamental rule relating to the jus ad bellum
(or, as some scholars prefer to put, the jus contra bellum). It contains the “Principles” in accordance
with which the UN and its member States must act in the pursuit of the “Purposes” stated in Article
1 of the Charter. As a Charter provision, it is binding upon the member States qua treaty, but it also
reflects a rule of customary international law.
The General Assembly reiterated in Resolution 2625 (XXV) (entitled “Declaration on Principles of
International Law concerning Friendly Relations and Co-operation among States in Accordance
with the Charter of the United Nations”) “[t]he principle that States shall refrain in their
international relations from the threat or use of force against the territorial integrity or political
independence of any State” and the ICJ found that the resolution “reflect[ed] customary
international law” (ICJ, Accordance with international law of the unilateral declaration of
independence in respect of Kosovo, advisory opinion, 22 July 2010, ICJ Reports, p. 437, para. 80,
referring to the Nicaragua v. United States merits judgment of 1986, paras. 191-193).
- A jus cogens norm?
Some scholars consider that the prohibition of the threat and use of force constitutes a peremptory
norm of international law (jus cogens). If it is rather undisputable that the obligation not to wage
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aggression is an obligation erga omnes under a jus cogens norm, and that territorial annexations as a
result of aggression are likewise prohibited, it is however more difficult to affirm that all types of
threats or uses of armed force of a lesser importance are prohibited under a peremptory norm.
- A prohibition of the threat and use of force in international relations
Be that as it may, it is important to note that Article 2, paragraph 4, is more inclusive than the
Kellogg-Briand pact, in that it prohibits more than “war as a instrument of national policy”. Under
the UN Charter, not only is the “use of force” outlawed, irrespective of its characterization as
“war”, but the “threat of force” is also prohibited.
Such threat or use are prohibited in the “international relations” of the member States: the UN
Charter does not limit the right of States to use force within their own territory. Furthermore, the
threat or use of force are prohibited when they are directed “against the territorial integrity or
political independence of any state, or in any other manner inconsistent with the Purposes of the
United Nations”. As the Court has made clear in the Kosovo opinion, “the scope of the principle of
territorial integrity [protected under Article 2, paragraph 4] is confined to the sphere of relations
between States” (ICJ, Accordance with international law of the unilateral declaration of
independence in respect of Kosovo, advisory opinion, 22 July 2010, ICJ Reports, p. 437, para. 80).
o Sometimes not inconsistent with the Purposes of the United Nations?
There have been some debates about the possibility that, sometimes, the use of force might not be
“inconsistent with the Purposes of the United Nations”. Notably, it has been argued that the use of
force in order to promote the goals of the UN and, in particular, the protection of human rights (see
Article 1, paragraph 3, of the Charter) would be consistent with the UN Purposes and, for that
reason, would not come within the prohibition of Article 2, paragraph 4.
So far, the argument is largely academic and States usually consider that any use of force in
international relations is by definition inconsistent with the Purposes of the United Nations, except
when it is justified in self-defence or authorized by the United Nations. Indeed, as will be made
clear below, the only uncontroversial exception to the prohibition is the right of self-defence, even
if the scope of such right continues to be debated. Furthermore, the use of force by the United
Nations or duly authorized by the Security Council, does not come within the ambit of Article 2,
paragraph 4.
- Ius ad bellum and jus in bello
As recalled above, Article 2, paragraph 4, is the fundamental rule on the jus ad bellum.
Respect for the jus in bello (also called law of armed conflict or international humanitarian law) is
owed irrespective of the conformity of the use of force with the jus ad bellum and all belligerents
are equally bound to comply with the rules of the jus in bello.
However, if a State wages a war in violation of Article 2, paragraph 4, it will be responsible for the
damage resulting from its internationally wrongful act, irrespective of the conformity of its military
operations with the jus in bello.
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Article 2(4) of the UN Charter and consent to foreign intervention

- Absence of prohibition of military assistance
Article 2, paragraph 4, of the UN Charter prohibits the use of force by one State against another
State. Therefore, and as a matter of principle, States are free to welcome foreign troops on their
territory, either in order to be peacefully stationed or to engage in military operations that have been
freely consented to. As long as the operations remain within the territory of the requesting State
and within the bounds of its consent, Article 2, paragraph 4, is not breached by the foreign
intervening State. There is an extensive practice of military assistance and it does not come within
the purview of the prohibition under Article 2, paragraph 4.
o Problem: intervention in favor of the rebellion
This being said, problems arise when the government of the requesting State is facing strong
internal armed opposition and that it calls on a foreign State to help suppress the rebellion.
Ø During the Cold War, the USA and the USSR fought many local wars by proxy: while the
government of the requesting State was supported either by Washington or Moscow, the
internal armed rebellion was supported by the other great power.
The intervention in favour of the rebellion should, as a matter of principle, be viewed as a
prohibited intervention in the foreign State’s internal affairs, or even (depending on the means used
and the degree of the intervention) as a prohibited use of force. This was notably made clear in the
Nicaragua v. USA judgment of 1986.
However, the effectiveness (in particular, in terms of territorial control) of the government of
the requesting State is often deeply eroded by the rebellion. Some have therefore argued that
foreign interventions in favour of the official government of the State are prohibited if that
government lacks effectiveness. Moreover, the rebellion sometimes proclaims itself as the new and
legitimate government of the State. On that basis, others have argued that the foreign intervention
upon the request of an effective rebellious government would be legal.
In light of those arguments, and of the danger resulting from escalating the conflict if both the
official government of the State and the rebellious government are helped from abroad, the Institute
of International Law considered in 1975 that in case of a civil war, i.e. a non-international armed
conflict, “third States shall refrain from giving assistance to parties to a civil war which is being
fought in the territory of another State”. In other words, intervention would be prohibited, both at
the request of the rebellion, but also at the request of the official government, i.e. the government
which was in control of the State before the troubles began.
This view does not seem to have been upheld by the ICJ in the Nicaragua v. USA case:
“Having concluded that the activities of the United States in relation to the activities of the contras
in Nicaragua constitute prima facie acts of intervention, the Court must next consider whether they
may nevertheless be justified on some legal ground. As the Court has stated, the principle of non-
intervention derives from customary international law. It would certainly lose its effectiveness as a
principle of law if intervention were to be justified by a mere request for assistance made by an
opposition group in another State - supposing such a request to have actually been made by an
opposition to the régime in Nicaragua in this instance. Indeed. it is difficult to see what would
remain of the principle of non-intervention in international law if intervention, which is already
allowable at the request of the government of a State, were also to be allowed at the request of the
opposition. This would permit any State to intervene at any moment in the internal affairs of another
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State, whether at the request of the government or at the request of its opposition. Such a situation
does not in the Court's view correspond to the present state of international law.” (ICJ, Military and
Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America), 27 June
1986, ICJ Reports, p. 126, para. 246)
The Court did not elaborate on whether the armed opposition between the government of Nicaragua
and the contras amounted to a non-international armed conflict within the meaning of international
humanitarian law, but it most likely met the criteria of such conflict. Therefore, military assistance
upon the request of the official government facing a civil war does not appear to be prohibited
under the Nicaragua v. USA judgment, but it remains a matter of controversy.
By contrast, when the internal strife does not reach the threshold of a non-international armed
conflict, it is undisputed that military assistance can be provided upon the request of the official
government of the State where those troubles occur. Most notably, it is undisputed that military
assistance can be provided in order to combat acts of terrorism and groups engaged in terrorist
activities (see infra). The consent of the requesting State must be valid and specific. The foreign
intervention must remain within the limits of such consent and it must stop as soon as consent is
terminated.
According to the Institute of International Law, military assistance in situations of internal
disturbances and tensions short of civil war remains nevertheless prohibited “when it is exercised in
violation of the Charter of the United Nations, of the principles of non-intervention, of equal rights
and self-determination of peoples and generally accepted standards of human rights and in
particular when its object is to support an established government against its own population”.
Furthermore, “military assistance shall not be provided where such provision would be inconsistent
with a Security Council resolution relating to the specific situation, adopted under Chapter VII of
the Charter of the United Nations”.
More generally, it is clear that because it is prohibited to render aid or assistance to another State in
the commission of any internationally wrongful act (see Article 16 ARSIWA), compliance with the
request of the host State may nevertheless entail responsibility on the part of the intervening State,
irrespectively of the conformity of the foreign intervention with jus ad bellum.
II. SELF-DEFENCE
Self-defence
- Article 21 ARSIWA
Under Article 21 ARSIWA, self-defence is conceptually constructed as a circumstance precluding
wrongfulness: as such, self-defence is a use of force which is directed against the territorial integrity
of political independence of another State, but the wrongfulness of such act is precluded because it
is taken in self-defence.
- Article 51 UN Charter
In the Nicaragua case, the ICJ considered that the right of self-defence (Article 51 UN Charter)
was an “exception” to the prohibition to use force. This is paragraph 193 and 210 of the
judgment of 1986. In the Oil platforms case, the Court called it a “qualification” to such
prohibition, but this does not mean anything different.
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The important thing is to see that if self-defence is an exception to Article 2, paragraph 4, of the
Charter, then the two rules (the obligation not to use force and the right of self-defence) form
together a system of connected vessels: the larger the scope of the exception, the narrower the
prohibition, and vice versa. So, the scope of the prohibition to use force cannot be defined
separately from the right of self- defence.
Article 51 of the UN Charter characterizes the right of self-defence as being an “inherent” right of
States. By this, the Charter underscores the elementary, fundamental, character of such right, the
fact that it is intrinsically linked to sovereignty, and also it underscores its customary nature.
However, self-defence is also regulated under Article 51 of the Charter.
So, the difficulty that arises when addressing the right of self-defence is that one must combine the
text of the Charter with the relevant rules of customary international law that govern self-defence.
Article 51 refers to the right of individual or collective self-defence.
o Individual self-defence
Article 51 begins by referring to a specific situation which triggers the inherent right of self-
defence: “if an armed attack occurs against a Member of the United Nations”.
§ Une agression armée
What is an “armed attack” that opens the right to use force in self-defence?
The French version of the Charter, which is equally authentic, does not refer to “une attaque armée”
or armed attack, but to “une agression armée”. Aggression seems to refer to a use of force which
is more serious than an armed attack, therefore seemingly putting the threshold slightly higher
and limiting the possibility to use force in self-defence. There has been endless debates about that
discrepancy, and the Francophone and Anglophone schools of international law are respectively
marked by that difference when it comes to discussing self-defence.
§ A certain threshold of gravity
However, one should go beyond it and take stock of the fact that both French and English require
that the armed attack reaches a certain threshold of gravity in order to open the right to use force
in self-defence.
Ø In other words, border skirmishes for instance do not legally trigger the right of self-
defence, and the ICJ has stressed that it was “necessary to distinguish the most grave forms
of the use of force (those constituting an armed attack) from other less grave forms” (and
that was in the Nicaragua judgment, paragraph 191).
§ An attack specifically directed at the victim State, with a specific intention to
harm it
Furthermore, the Court has requested in the Oil platform case that the armed attack be not at
random but that it be specifically directed at the victim State, with a specific intent to harm it.
§ Resolution 3314 (XXIX)
Because an act of aggression is necessarily an armed attack within the meaning of Article 51,
guidance can also be found in Resolution 3314 (XXIX) on the definition of aggression. That
resolution was adopted by the General Assembly on 14 December 1974 for the purpose of helping
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the Security Council to qualify situations as aggressions. Under Resolution 3314 that you can find
in the Reading Material, the first use of armed force by a State in contravention of the Charter is
said to constitute prima facie evidence of an act of aggression.
The Security Council may however disqualify such prima facie qualification, in light of all the
circumstances.
Furthermore, Article 3 of Resolution 3314 refers to several acts that are considered as qualifying as
acts of aggression. Those acts include the invasion of a territory, its annexation, the bombardment
of the territory of another State, the blockade of ports, the attack on the armed forces of another
State, etc. The list is not exhaustive and the Security Council may consider other acts as acts of
aggression.
§ Armed attacks and imminent threats of armed attacks
Let me turn to another question relating to the armed attack. That question is temporal. Article 51
reads: “if an armed attack occurs”. The French version of the Charter also uses the present tense.
Does that mean that the attack must have already happened in order for the right of self-defence to
be triggered?
That question has been hotly debated in the legal literature, notably during the Cold War when
nuclear weapons were on the rise.
In light of the attack on Pearl Harbor in December 1941, it is very unlikely that the United States or
any other drafter of the Charter would have signed the Charter if Article 51 meant that a State had
to wait and sit idle until actually bombed and could not intercept an ongoing armed attack, before
destruction materialized.
There is actually a large consensus today according to which imminent threats of armed attack are
covered by Article 51.
Ø This has notably been recognized by the UN Secretary General in his report entitled “In
larger freedom” that was tabled in 2005 on the occasion of the 60th anniversary of the UN.
Ø Likewise, the Institute of International Law considered in a resolution adopted two years
later, in 2007, that “the right of self-defence arises for the target State in case of an actual or
manifestly imminent armed attack”, but the Institute rejected doctrines of so-called
“preventive” self-defence (cf. Reading material, p. 120).
The possibility to use force in self-defence in case of an imminent threat of armed attack is
sometimes traced back to the formula used by the US Secretary of State Daniel Webster in the
diplomatic letter he addressed to his British counterpart following what is called the Caroline
incident in 1837. The Caroline was a ship used by Canadian insurgents and it was anchored on the
other side of the Niagara river. During a night raid, British troops crossed the border to the US and
destroyed the Caroline. The US complained to the British Government and diplomatic
correspondance ensued in between the two countries. In his diplomatic note, Secretary Webster
famously referred to the “necessity of self-defense [...] instant, overwhelming, leaving no choice of
means, and no moment of deliberation”. Although the legal backdrop at the time of Webster was
completely different from what it is today, his words carry still a certain authority.
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§ A right that exists to the benefit of all States

Article 51 refers to an armed attack “against a Member of the United Nations”, but because self-
defence is a right under customary international law, it exists also to the benefit of all States and not
only States that are members of the UN.
§ Rescue of nationals abroad?
A more tricky issue however is whether an armed attack against the nationals of a State by or with
the complicity of the authorities of the State where those foreign nationals are present, constitutes
an armed attack allowing the parent State to use force in self-defence in order to protect its
nationals.
Rescuing nationals abroad does not raise any legal problem when done with the consent of the
territorial State.
But it has raised controversy absent such consent, even when foreign nationals were deliberately
targeted by the territorial State. There have been several cases in which the parent State has justified
its military rescue operations on the basis of self-defence, but such extension of the notion of armed
attack against a State to encompass attacks againts its nationals is usually considered as being fairly
far-fetched and a rescue operation is probably better justified on the basis of necessity as a
circumstance precluding wrongfulness, provided of course that such a rescue operation does not
amount to an armed attack against the territorial State.
But even when the use of force remains strictly limited in scope and in intensity, the legality of a
rescue operation could be put in doubt by those who consider that the prohibition to use force is, as
a whole, a rule having a peremptory character.
§ Non-State actors?
We assume here that the author of the armed attack is another State and that the military reaction in
self-defence is directed at that State. This is indeed how self-defence has been conceived and has
been applied for a very long time. And it was probably so patently obvious to the drafters of the
Charter that Article 51 is silent on the matter.
But does the silence of the Charter allow to consider that when the armed attack is carried out by a
non-State actor, a terrorist group for instance, the right of self-defence is triggered?
We’ll revert to that question.
§ Exercising self-defence
When the conditions for resorting to the use of force in self-defence are met, the State acting in self-
defence is entitled to use force against the author of the armed attack. The exercise of the right of
self-defence is governed by several conditions, two of them being of a customary nature, the third
and last one being specific under the UN Charter.
• Necessity and proportionality
The well-established customary conditions for the exercise of the use of force in self-defence are
necessity and proportionality. This has been made clear by the ICJ on several occasions, notably:
- “The submission of the exercise of the right of self-defence to the conditions of necessity and
proportionality is a rule of customary international law” (ICJ, Legality of the Threat or Use
of Nuclear Weapons, advisory opinion, 8 July 1996, ICJ Reports, p. 245, para. 41);
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- “The criteria of necessity and proportionality must be observed if a measure is to be

qualified as self- defence” (ICJ, Oil Platforms (Islamic Republic of Iran v. United States of
America), 6 Nov. 2003, ICJ Reports, p. 183, para. 43).
The use of force is therefore not justified as a measure of self-defence if it is not necessary for the
protection of the victim State and if it is not proportional to the armed attack suffered by the victim
State acting in self-defence.
Whether a given measure is “necessary” is “not purely a question for the subjective judgment of the
party” (ICJ, Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United
States of America), 27 June 1986, ICJ Reports, p. 141, para. 282). Necessity can therefore be
objectively assessed by the Court on a case-by-case basis (ICJ, Oil Platforms (Islamic Republic of
Iran v. United States of America), 6 Nov. 2003, ICJ Reports, p. 183, para. 43) because “the
requirement of international law that measures taken avowedly in self-defence must have been
necessary for that purpose is strict and objective, leaving no room for any “measure of discretion”
(Ibid., p. 196, para. 73).
In the Oil Platforms case, the ICJ added that the military operations in self-defence must be aimed
at “legitimate target[s] open to attack in the exercise of self-defence” (Ibid., p. 187, para. 51). By
this, the Court underlined that the operation in self-defence must take place in conformity with the
jus in bello and that such conformity or non-conformity can be taken into account in order to assess
whether the conditions of necessity and proportionality under the jus ad bellum are met.
Because nuclear weapons do not discriminate between civilian and military targets under the jus in
bello, it has been argued that their use would be illegal in any circumstances, even in self-defence.
The ICJ recognized that the use of nuclear weapons “in fact seems scarcely reconcilable with
respect for [the] requirements of international humanitarian law” and “would generally be
contrary to the rules of international law applicable in armed conflict”, but opined that it “does not
have sufficient elements to enable it to conclude with certainty that the use of nuclear weapons
would necessarily be at variance with the principles and rules of law applicable in armed conflict
in any circumstance” (ICJ, Legality of the Threat or Use of Nuclear Weapons, advisory opinion, 8
July 1996, p. 263, para. 95). The Court concluded that “in view of the present state of international
law viewed as a whole [...], and of the elements of fact at its disposal, [it was] led to observe that it
cannot reach a definitive conclusion as to the legality or illegality of the use of nuclear weapons by
a State in an extreme circumstance of self-defence, in which its very survival would be at stake”
(Ibid., para. 97).
It is sometimes said that the military reaction in self-defence must immediately follow the armed
attack in order for the condition of necessity to be met. If a really belated reaction would indeed not
meet the requirement of necessity, it would however be wrong to exclude from the realm of self-
defence an operation taking place a few weeks or even months after the initial armed attack:
everything depends on the circumstances, notably if the self-defence operation must take place
overseas and requires detailed military planning and logistical support.
The proportionality between the armed reaction in self-defence and the armed attack must also be
assessed on a case-by-case basis, knowing that the military reaction as a whole must be taken into
account. In other words, one “cannot assess in isolation the proportionality of [a specific] action to
the attack to which it was said to be a response” (ICJ, Oil Platforms (Islamic Republic of Iran v.
United States of America), 6 Nov. 2003, ICJ Reports, p. 198, para. 77).
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• Informing the Security Council

The last condition governing the exercise of the right of self-defence is enunciated in Article 51 of
the UN Charter: “Measures taken by Members in the exercise of this right of self-defence shall be
immediately reported to the Security Council”. Informing the Security Council is an obligation
under the Charter binding on the UN member States.
In the Nicaragua v. USA case, the Court opined that “the absence of a report [to the Security
Council] may be one of the factors indicating whether the State in question was itself convinced
that it was acting in self-defence” (ICJ, Military and Paramilitary Activities in and against
Nicaragua (Nicaragua v. United States of America), 27 June 1986, ICJ Reports, p. 105, para. 200).
In that case, the USA had failed to report its actions to the Security Council and the Court
considered that it was one additional element leading to the conclusion that they could not be
justified under (collective) self-defence.
Because the measures taken in the exercise of the right of self-defence “shall not in any way affect
the authority and responsibility of the Security Council under the present Charter to take at any time
such action as it deems necessary in order to maintain or restore international peace and security”;
they may only continue “until the Security Council has taken measures necessary to maintain
international peace and security” (Article 51 UN Charter). Therefore, once the Security Council has
taken the adequate measures for restoring peace and security, the military operations carried out
in self-defence must be terminated, even if they conform with the customary requirements of
necessity and proportionality absent the measures of the Security Council.
In light of the right of veto of the five permanent members of the Security Council (see below,
Collective Security), the right of self-defence of those permanent members is unlikely to be
impeded by the Security Council. In other words, in practice, self-defence for the permanent
members of the Security Council is not exactly the same right as the right of self-defence of any
other UN member.
o Individual self-defence
Collective self-defence is not to be confused with military assistance as the latter does not require
that an armed attack occurred.
Collective self-defence requires that an armed attack occurred and that its victim be in a situation
of individual self-defence. If that is the case, the State having the right to use force in self-defence
may also call on other States for help. Those States will be entitled to use force against the author of
the armed attack, despite the fact that they have not been injured by such attack themselves.
Collective self-defence is a form of solidarity between States.
Collective self-defence may be exercised only at the request of the State victim of the armed attack,
after that State has determined to have been attacked. Other States may not come to its help on their
own initiative. This was made clear by the ICJ in the Nicaragua v. USA case, the US having
claimed that its use of force against Nicaragua was justified in collective self-defence of El
Salvador:
“It is [...] clear that it is the State which is the victim of an armed attack which must form and
declare the view that it has been so attacked. There is no rule in customary international law
permitting another State to exercise the right of collective self-defence on the basis of its own
assessment of the situation. Where collective self-defence is invoked, it is to be expected that the
State for whose benefit this right is used will have declared itself to be the victim of an armed
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attack.” (ICJ, Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United
States of America), 27 June 1986, ICJ Reports, p. 104, para. 195)
Moreover,
“in customary international law [...] there is no rule permitting the exercise of collective self-
defence in the absence of a request by the State which regards itself as the victim of an armed
attack. The Court concludes that the requirement of a request by the State which is the victim of the
alleged attack is additional to the requirement that such a State should have declared itself to have
been attacked.” (Ibid., p. 105, para. 199)
Those customary conditions for the use of force in collective self-defence apply even in situations
where States have concluded treaties containing a collective self-defence commitment.
Examples of such commitments can be found in:
Ø Article 5 of the NATO treaty:
“The Parties agree that an armed attack against one or more of them in Europe or North America shall be
considered an attack against them all and consequently they agree that, if such an armed attack occurs, each of
them, in exercise of the right of individual or collective self-defence recognised by Article 51 of the Charter of
the United Nations, will assist the Party or Parties so attacked by taking forthwith, individually and in concert
with the other Parties, such action as it deems necessary, including the use of armed force, to restore and
maintain the security of the North Atlantic area.
Any such armed attack and all measures taken as a result thereof shall immediately be reported to the Security
Council. Such measures shall be terminated when the Security Council has taken the measures necessary to
restore and maintain international peace and security.”
Since 1949 when NATO was established, Article 5 has been invoked once, i.e. after the
terrorist attacks of 11 September 2001 in the United States.
Ø Article 42, paragraph 7, of the Treaty on the European Union:
“If a Member State is the victim of armed aggression on its territory, the other Member States shall have
towards it an obligation of aid and assistance by all the means in their power, in accordance with Article 51 of
the United Nations Charter. This shall not prejudice the specific character of the security and defence policy of
certain Member States.
Commitments and cooperation in this area shall be consistent with commitments under the North Atlantic
Treaty Organisation, which, for those States which are members of it, remains the foundation of their
collective defence and the forum for its implementation.”
Self-defence and terrorism

- Absence of global definition of “terrorism”
Despite many attempts and also many ongoing debates, there is not yet one universally agreed
definition of terrorism. This is because, as the newspapers say, “one man’s terrorist is another
man’s freedom fighter”.
- Sectorial criminal conventions
However, there are about 16 international conventions relating to terrorism. Those are sectorial
conventions, dealing with terrorist attacks against civil aviation, diplomatic agents, maritime
navigation, fixed platforms, terrorist bombings, nuclear terrorism, etc. There are also conventions
on the suppression of the financing of terrorism.
Those universal instruments, concluded under the UN auspices, are often completed by regional
treaties. Those treaties usually contain obligations by which the contracting States must prosecute
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or extradite alleged offenders, and other criminal justice cooperation mechanisms. The fight against
terrorism is indeed first and foremost a law-enforcement and criminal justice issue.
- Terrorism on State territory
And further, if a State is attacked by a terrorist group which is present on its own territory, there is
no doubt that that State is entitled to take all the police and law-enforcement measures needed to
protect its citizens and arrest, detain and prosecute the alleged terrorists. Of course, all this must be
done in conformity with human rights, but in the course of those law-enforcement operations,
terrorists might eventually get legally hurt or even killed.
The use of police or military force against a terrorist organization present on the territory of the
State does not need to be justified under the right of self-defence. And as recalled earlier, the use of
force by a State on its own territory does not come within the purview of the prohibition to use
force under Article 2, paragraph 4, of the UN Charter.
o Consent to foreign military assistance
As recalled earlier also, the territorial State may ask help and military assistance from other States
and it may invite them to fight the terrorist organization alongside with him.
And again, there is no need to refer to collective self-defence for that matter: consent by the
territorial State is, as a matter of principle, a sound and sufficient legal basis.
If the intensity of the fighting is such that it reaches the threshold of a non-international armed
conflict (NIAC), the jus in bello applicable to such conflicts might be applicable.
- Terrorist attacks from abroad
The issue of self-defence within the meaning of Article 51 only arises when the terrorist group is
not present on the territory of the victim State and that the victim State suffered a terrorist attack
which, because of its scale and gravity, can be qualified as an “armed attack”. Or if the State is
suffering from a pattern of several ongoing terrorist attacks, those terrorist attacks accumulate and
reach that threshold.
There is no doubt that, from a material point of view, attacks by terrorist organizations can reach the
gravity threshold of “armed attack” within the meaning of Article 51. It is a very sad fact of life
that we have painfully learnt at the very beginning of the 21st century, as the memory of the attacks
of 9/11 immediately comes back in mind.
So, the issue is not to know if terrorists are capable of carrying out “armed attacks”. Unfortunately,
they are. When an armed attack is of a sufficient gravity and when it is carried out by a terrorist
group from abroad, the question is to know whether the victim State may use force in self-defence.
The question must be clearly understood.
o The wrongful act can be legally attributed to a foreign State
If the attack has been carried out materially by a terrorist group, but if that wrongful act can be
legally attributed to a foreign State, then the issue of self-defence against the group will not arise
and the victim State will have the right to use force in self-defence against the State responsible for
the attack, even if the attack was materially carried out by the terrorist group.
If it is established that a foreign State has instructed a terrorist organization to carry out an attack,
the attack will be attributed to that foreign State and that foreign State will be internationally
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responsible for the attack (see Week 6). Likewise, if the foreign State has directed the terrorist
operation or if it has exercised effective control over the terrorist group in the course of the attack, it
will also bear responsibility for it. In those circumstances, the attack is materially carried out by a
terrorist group, but it is legally attributed to a foreign State.
It might be very difficult to prove it, but if established, the armed attack by the terrorist group is
deemed to be an armed attack by the foreign State and there is no doubt that the victim State has the
right to use force in self-defence against that State because it is responsible for the terrorist armed
attack.
Likewise, under Article 3, g) of Resolution 3314 (XXIX), “the sending by or on behalf of a State
of armed bands, groups, irregulars or mercenaries, which carry out acts of armed force against
another State of such gravity as to amount to the acts listed [in the Resolution], or its substantial
involvement therein” is also an act of aggression. Therefore, the foreign State could be responsible
for an act of aggression triggering the right of self-defence following its own action of sending
armed groups that carry out armed attacks, or following its own substantial involvement in such
attacks.
So, there is no legal problem when the foreign State can be held responsible in relation to a terrorist
attack under the aforementioned rules. That State can be attacked in self-defence.
o The terrorist group acts on its own from abroad
The real problem arises when the terrorist group really acts on its own from abroad, without any
foreign State instructions, direction, control or substantial involvement. Only that situation only
really relates to the issue of self-defence against terrorist groups.
§ Self-defence allowed
As you may remember, Article 51 says nothing about the author of the armed attack. It simply
refers to the following hypothesis: “if an armed attack occurs”. Article 51 does not say by whom
armed attack occurs. This is not a surprise because at the time the Charter was drafted, only States
were carrying out armed attacks.
Following the attacks of 9/11, the Security Council adopted Resolutions 1368 and 1373. The
preambles of those resolutions explicitly “reaffirm[ed] the inherent right of individual or collective
self-defence”. This seems to suggest that self-defence is triggered by attacks carried out by terrorist
groups.
However, in the Wall advisory opinion, the International Court of Justice seemed to disagree with
such conclusion. The Court examined whether the construction of the Wall by Israel in the
Palestinian Occupied Territory could be justified on the basis of self-defence. The Court said this:
“Article 51 of the Charter [...] recognizes the existence of an inherent right of self-defence in the
case of armed attack by one State against another State.
However, Israel does not claim that the attacks against it are imputable to a foreign State.”
Furthermore, you may remember that in the Kosovo advisory opinion, the Court said that the
principle of territorial integrity, which is protected by the prohibition to use force under Article 2,
paragraph 4, of the Charter, that this principle “is confined to the sphere of relations between
States”. Because Article 51 is an exception to Article 2, paragraph 4, this reinforces the idea that
self-defence is only applicable between States.
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Does that mean that States may never use force in self-defence against terrorist groups that are
based abroad when those groups have carried out an armed attack? No: the Wall opinion should not
be understood as forbidding self-defence against terrorist groups acting from abroad.
Immediately after having recalled that the inherent right of self-defence is recognized “in the case
of armed attack by one State against another State”, the Court noted that Israel exercises control in
the Occupied Palestinian Territory and that, by building the Wall, Israel intends to protect itself
from a threat coming from that territory it controls. The Occupied Palestinian Territory where,
according to Israel, the terrorist groups are present is a foreign territory, but Israel is present on that
territory and it is in control of that territory. So, said the Court, the situation is different from the
situation dealt with by the Security Council in the aftermath of 9/11. Because Israel controls and
occupies the Palestinian territory, there is no real issue of using force abroad in self-defence. Israel
is an occupying power and can only use force as an occupying power under the relevant rules of the
jus in bello.
Therefore, self-defence cannot be understood as being only possible in case of an armed attack by
one State against another State. A State-to-State situation is of course one situation in which self-
defence applies. But it is not the only situation in which it is possible to use force in self-defence.
And this is indeed the view of the Institute of International Law, of which many ICJ judges are
members. According to the Institut: “[i]n the event of an armed attack against a State by non-State
actors, Article 51 of the Charter as supplemented by customary international law applies as a matter
of principle”. So, using force in self-defence against a terrorist group acting from abroad should be
possible: the terrorist group can be the target of self-defence military operations.
§ Where to use force?
But the real issue is to know where to use force, where to direct the military operations against the
terrorist group.
• If the terrorist group is present in an area beyond the jurisdiction of
any State
As the Institute of International Law made clear, if the terrorist group is present “in an area beyond
the jurisdiction of any State” (e.g. on board a ship on the high seas), there is no doubt that the State
victim of the terrorist armed attack may use force in self-defence and destroy the boat where the
terrorists are present.
• If the terrorist group is present on the territory of a foreign State
However, most of the time, terrorists are not at sea but on the territory of a foreign State.
That State must cooperate with the victim State and it should take the law-enforcement measures
against the terrorist group which is present on its territory. The foreign State where the terrorists are
hiding could also consent to a foreign intervention, and there is no need to speak of self-defence in
such a case.
But what if the foreign State refrains from doing anything? If the State where the terrorist group is
present is unwilling or unable to take the appropriate measures against the terrorist group, the
following question will arise: is the victim State entitled to use force in self-defence on the territory
of that foreign State? Not using force against that foreign State, but using force on that foreign
State’s territory against the terrorist group?
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That is really the core question. It is a very controversial question and it is easy to understand why it
is controversial. It is also easy to figure out the respective legal positions and arguments of the
various States involved.
Current practice is in a flux, and it is probably too soon to definitively assess the status of the law in
that regard. Undoubtedly, the behavior of the territorial State where the terrorist group is hiding will
be a crucial factual element.
Likewise, the actual necessity of going after the terrorists, in terms of protecting the victim State,
and the proportionality of the military reaction, will also be of crucial importance – and those
elements have to be assessed on a case-by-case basis.
III. THE UN SECURITY COUNCIL
The UN Security Council

- Function (Article 24 UN Charter)
The Security Council, which is the organ having, in the words of Article 24 of the UN Charter, the
“primary responsibility for the maintenance of international peace and security”, has a central role
in the UN.
- Composition (Article 23 UN Charter)
It is made of 15 members, 5 of which are permanent members (China, France, Russia, the United
Kingdom and the United States of America), which are often referred as the “P5” nations,
permanent members. And then there are 10 other countries sitting at the Security Council: those are
non-permanent members of that organ, and they are elected for a term of 2 years by the General
Assembly.
Originally, the composition of the Security Council was of 11 members, including the P5. The
number of the non-permanent members has been increased from six to ten by an amendment to the
Charter that entered into force in 1965. The various non-permanent members elected are taken from
the various regions of the world.
- Vote, veto, abstention (Article 27 UN Charter)
o Vote
Each member of the Council has one vote and decisions are taken by an affirmative vote of nine
members. When decisions do not relate to procedural matters, paragraph 3 of Article 27 says that
the majority of 9 out of 15 needed for a decision must include “the concurring votes” of the five
permanent members.
However, in practice and as made clear by the ICJ in the Namibia advisory opinion, it has been
consistently accepted that the voluntary abstention by a permanent member does not prevent the
resolution to be adopted by the Council.
o Veto
If a permanent member wants to prevent the adoption of a resolution, it must cast a negative vote.
Such negative vote is called a veto if the majority of nine has been reached. Each permanent
member is thus conferred by the Charter the extraordinary right to veto the adoption of a resolution,
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despite the fact that more than nine members of the Council have voted in favor of the draft
resolution.
If the draft resolution is supported by less than nine members of the Council and that no majority
exists in its favor, the negative vote of a permanent member does not prevent by itself the resolution
to be adopted. In such a situation, the negative vote of any permanent member should not be
understood as a veto: the resolution is not adopted because it is not supported by at least nine
members of the Council.
§ Criticism
There have been many criticism of the veto power of the permanent members and there have been
many attempts also to reform the veto right. It is indeed quite astounding that an organization which
is premised on the equal sovereignty of its members bestows upon some of them such unequal
privilege. But, as you know, this is the result of an historical situation and it reflected the status of
the world by the end of the Second World War.
One can criticize the veto power of the P5 nations, but it is undoubtedly part of the legal rules that
each UN member State has duly accepted by ratifying the Charter.
Despite many attempts to reform the right of veto, no changes have so far been brought to that
system. And no legal change could be brought to it without the consent of each of the permanent
members because, under Article 108 of the Charter, amendments to the Charter require to be
ratified by two-third of the UN members, “including all the permanent members of the Security
Council”. So, any legal change to the veto system requires that those having the veto accept to
change it.
As you can see, the procedure at the Security Council is quite demanding because the veto of the P5
is a constant threat. Therefore, prior negotiations between the main players are essential to get a
resolution through. This is the stuff of high-level diplomacy and the wording of important
resolutions are not only negotiated in New York between the ambassadors, but it is also sometimes
directly negotiated from capital to capital. And also, sometimes, a draft resolution is tabled without
real prior negotiations, but with the clear expectation that it be vetoed, just to be able to make the
headlines and try to lay the blame on the vetoing power. This is again the usual game of diplomacy.
- Powers
The Council has different powers, most notably under Chapters VI, VII and VIII of the Charter.
o Chapter VI
Chapter VI concerns the “Pacific settlement of disputes”.
In that regard, the Council has a power of recommendation: it may adopt resolutions that
recommend, incite, member States to do something, but it cannot decide that they must do
something. In particular, the Security Council cannot impose on a member State to refer a dispute to
arbitration or to the ICJ. It may suggest that, but jurisdiction will always rest on the consent of the
disputing parties.
o Chapter VIII
Chapter VIII of the Charter relates to “Regional arrangements”.
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In substance, the Charter does not preclude the settlement of disputes or the maintenance of peace
and security through regional fora, but any enforcement action by a regional organization needs
prior authorization by the Security Council. In other words, the Security Council stands ultimately
above regional arrangements or regional organizations when it comes to using force.
o Chapter VII
Chapter VII is entitled “Action with respect to threats to the peace, breaches of the peace, and acts
of aggression”.
Chapter VII is a central part of the Charter under which the Security Council has the power to take
resolutions that are binding on the UN member States. Under Chapter VII, the resolutions of the
Security Council can be recommendations, but they may also be binding decisions and Article 48
of the Charter compels member States to comply with the measures decided by the Council.
§ What is required for the Council to exercise its powers under Chapter VII?
In order to trigger its binding powers under Chapter VII, the Security Council must first “determine
the existence of any threat to the peace, breach of the peace or act of aggression” (Article 39). A
situation, a crisis, must be qualified by the Council as constituting either a threat to the peace, or a
breach of the peace or an act of aggression.
There is a clear gradation of seriousness in those words, and you can think at them as concentric
circles, with the act of aggression at the core, then the breach of the peace, then the threat to the
peace as being even more encompassing.
As we have seen earlier this week, Resolution 3314 of 1974, adopted by the General Assembly,
offers some guidance as to the definition of what is an aggression. However, the Council has so far
refrained from going as far as speaking of an act of aggression.
Ø Even when Iraq invaded Kuwait in August 1990, which was a blatant act of aggression, the
Council preferred to refer to a “breach of international peace and security as regards the
Iraqi invasion of Kuwait”. And that’s Resolution 660.
For the rest, there is no definition of what constitutes a breach of the peace, and even less of the
concept of threat to the peace. To make it short, a threat to the peace is what the Security Council
determines to be a threat to the peace. Saying that does not mean that the Council would make
frivolous determinations, because the procedure to reach a majority with no veto is rather
cumbersome and requires to engage in delicate diplomacy.
But be that as it may, the concept of threat to the peace is wide and not limited to crisis situations
between States: the notion of peace is not reduced to the absence of armed conflict between nations.
Peace is a much wider notion, and the threats to the peace also, and the Security Council made that
very clear in a landmark declaration of 31 January 1992 when it met at the level of heads of
States and heads of governments at the end of the Cold War. On many, many occasions since then,
the Security Council has qualified purely internal situations and conflicts as being threats to the
peace, therefore opening its powers under Chapter VII.
Under Article 2, paragraph 7, of the Charter, “matters which are essentially within the domestic
jurisdiction” of States fall beyond the competence of the UN, but this is precisely without prejudice
to the enforcement powers of the Security Council under Chapter VII. Therefore, the sacrosanct
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“internal affairs” of States can be interfered with by the Security Council when it determines that a
threat to the peace exists. Very often, it is because grave breaches of international law have
occurred that the Council determines the existence of a threat to the peace.
However, it is important to remember that qualifying a situation as being a threat to the peace is not
a judicial qualification, but a political qualification made by a political organ, and it is in any event
independent of any legal finding. Absent any breach of international law, the Council could
determine that a threat to the peace exists.
Ø For instance, a natural disaster having important repercussions could give rise to a threat to
the peace.
Ø If extraterrestrial creatures were to invade our planet, they would not breach any
international law because international law is the law of humanity.
But such invasion could still be qualified by the Security Council as a threat to the peace and
the Council could, for instance, forbid the member States to conclude any separate peace
agreement with the invaders coming from deep space. So there is no necessary relation
between threat to the peace and a breach of international law.
Let us turn now to what the Security Council can do with its powers under Chapter VII, once it has
determined the existence of a threat to the peace, a breach of the peace or an act of aggression.
§ Sanctions and non-forcible measures under Chapter VII
The non-forcible measures under Article 41 are intended to put pressure on a State or on non-State
actors in order to induce compliance with the requests formulated by the Security Council.
The range of sanctions has been varied and has included comprehensive economic and trade
sanctions, or more limited measures such as arms embargoes, or embargoes relating to other type of
goods relating to specific industries, travel bans on certain officials, financial or diplomatic
restrictions to the State, the non-state actor or some of their representatives.
Ø By mid-2015, 9 States, 618 individuals and 424 entities (most of them because of their
alleged involvement in terrorist activities) were under sanctions imposed by the UN Security
Council.
• Sanction committees
When the Security Council adopts a resolution by which it imposes on member States to take
sanctions against another State, or against certain entities or individuals, it usually also establishes a
“sanction committee” in order to monitor the application of those measures.
Sanctions committees are subsidiary organs of the Security Council established under Article 29 of
the Charter, i.e. they are established because the Security Council finds them “necessary for the
performance of its functions”.
Sanctions committees are composed of representatives of the members of the Security Council, so
membership of the Council entails membership of the existing committees.
There are as many sanctions committees as they are sanctions regimes decided by the Security
Council.
• Exceptions
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Medical and humanitarian exceptions are usually provided for under the resolutions imposing
comprehensive embargoes.
In such a case, the relevant sanction committee has the authority to grant medical or humanitarian
exceptions on a case-by-case basis.
Ø For instance, when the Security Council imposed on Iraq a comprehensive economic and
trade embargo by Resolution 661 (1990) following its illegal Iraqi invasion and occupation
of Kuwait, the Security Council made exception for supplies intended strictly for medical
purposes and foodstuffs if humanitarian circumstances so required. The sanction committee
established under the same resolution was tasked with implementing such exception.
Concretely, this is usually done as follows: following the embargo decided by the Security Council,
all member States take domestic implementing measures, deciding for instance that all exports to
Iraq require a specific export licence. As a result, no goods can be shipped to Iraq without an export
licence and the custom administration stops delivering export licences for any type of goods for
Iraq. If a company wants to sell medical goods to Iraq (e.g. vaccines), it asks the custom
administration for an export licence. The custom administration refers the matter to the foreign
affairs ministry, which in turn submits the request to the UN sanction committee. If the sanction
committee grants the medical exception, the State is informed and the custom administration is
authorized to deliver an export licence for the vaccines.
• Criticism and ‘smart sanctions’
Despite those exceptions, comprehensive embargoes have been criticized for the adverse impact
they have on the most vulnerable and innocent segments of the civilian population of the targeted
State. As a result, comprehensive sanctions have proven sometimes not only to be unjust, but also
to be somehow counter-productive, as the government of the targeted State often strikes a
nationalist chord to rally people around it.
Sanctions have also been criticized for their effect on the economy of third States (see however,
Article 50 of the UN Charter).
As a result “smart sanctions” have been designed, limiting trade sanctions to certain key economic
sectors or goods (arms, oil industry, diamonds, air transport,...).
Furthermore, sanctions have been imposed on individuals, including high officials of the State and
political elite, corporations or entities. Those individualized sanctions take usually the form of
travel bans, freezing of assets and blocking of financial transactions. The persons or entities
concerned are nominally "blacklisted" by the Security Council. The procedure whereby those
persons and entities are identified and unilaterally sanctioned has raised many concerns, in
particular when those persons are non-representatives of the target State. Most notably, several
persons and entities blacklisted for alleged terrorist activities have complained about breaches of
fundamental human rights, including the right to be heard. As a result, the Security Council
established under Resolution 1730 (2006) a Focal Point for De-listing individuals and entities.
• ICTY and ICTR
Under Chapter VII, the Security Council has also established, as subsidiary organs, the
International Criminal Tribunal for the former Yugoslavia (Res. 827 (1993)) and the
International Criminal Tribunal for Rwanda (Res. 955 (1994)).
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Not surprisingly, the ICTY has opined that its establishment “falls squarely within the powers of the
Security Council under Article 41” of the Charter (ICTY, Tadič, IT- 94-1-A, 2 Oct. 1995, para. 36).
§ Referral and deferral under Chapter VII
Under the Statute of the International Criminal Court (ICC), the Security Council also has the
power to refer or defer situations to the ICC by resolutions adopted under Chapter VII (see Week
7).
Did you know?
Despite several set-backs resulting from the opposition between key-players about serious
international crisis, and ensuing vetoes at the Security Council, the activity of the Security Council
has surged since the end of the Cold War:
Between 25 January 1946 and 1 August 1990, the Security Council had adopted 659 resolutions.
Only a very limited number of those resolutions had been adopted under Chapter VII (see
Resolution 253 (1968) concerning Southern Rhodesia).
Between 2 August 1990 (invasion of Kuwait by Iraq) and the end of May 2015, the Security
Council had adopted 1564 resolutions, many of them on the basis of Chapter VII.
Legal effects of Security Council resolutions
- Article 48 and 25 UN Charter: generalities
According to Article 48 of the UN Charter, the UN member States must obey and implement the
binding resolutions adopted by the Security Council under Chapter VII.
Furthermore, Article 25 of the Charter reads as follows: “The Members of the United Nations
agree to accept and carry out the decisions of the Security Council in accordance with the present
Charter”. Article 25 is included in Chapter V of the Charter, which defines the composition of the
Security Council, its functions, powers, voting and procedure. Because Article 25 is not part of
Chapter VII, the question of its relationship with Chapter VII arises.
Is Article 25 just a repetition of Article 48? Or is Article 25 an autonomous provision allowing the
Security Council to take binding decisions, even when it is not acting under Chapter VII? The
answer to that question has been given by the ICJ in the Namibia advisory opinion: the Court said
that Article 25 would be superfluous if it was only to apply to enforcement measures decided under
Chapter VII. Therefore, Article 25 was not confined to such measures and entitled the Security
Council to take binding measures outside Chapter VII.
But if this is so, then another question arises: are all the Security Council resolutions binding
because of Article 25? The answer to that question is clearly no: some resolutions are only
recommendations, while others are binding decisions.
But then, yet another question arises: how to make the difference between recommendations or
decisions? If the recital of the resolution refers to a threat to the peace and to Chapter VII, it is easy
to conclude that the resolution is binding.
But if the Security Council does not refer to Chapter VII, how can we know if it is a
recommendation or a decision? Should one presume that the Council acted under Article 25, so that
the resolution is binding, or should one presume the opposite? Actually, no presumption applies
here, in one way or another, and one needs to consider each resolution, and each paragraph in each
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resolution, for what it is. Assessing the binding character of a resolution outside Chapter VII must
be done on a case-by-case basis. The Court said this:
“The language of a resolution of the Security Council should be carefully analysed before a
conclusion can be made as to its binding effect.
In view of the nature of the powers under Article 25, the question whether they have been in fact
exercised is to be determined in each case, having regard to the terms of the resolution to be
interpreted, the discussions leading to it, the Charter provisions invoked and, in general, all
circumstances that might assist in determining the legal consequences of the resolution of the
Security Council.”
So, clearly, it is not the same thing for the Council to “urge”, “call upon” or “encourage” parties to
a conflict to do something or to “request”, “demand” that same thing from them, or to “decide” that
they should behave in a certain way. While the first three verbs do not convey the sense of a legal
obligation, the last three do so.
- The ratione personae scope of the Security Council’s binding resolutions
o All member States, except if the Security Council decides otherwise
If a resolution is binding, either because it has been adopted under Chapter VII or because of
Article 25 independently from Chapter VII, it is binding as a matter of principle on all member
States of the UN, except if the Council provides something specific for some of them.
o Member States only
Resolutions are binding on member States, but they are not binding on non-member States. This is
self-evident: third States are not bound by the Charter, nor by acts adopted by the UN under the
Charter.
§ Exception: Article 2, paragraph 6 UN Charter
However, Article 2, paragraph 6, of the UN Charter states that the UN shall ensure that non-
member States act in accordance with the Charter principles in the field of peace and security and
the Security Council has very often called upon third States and upon third international
organizations to act consistently with its resolutions. And most of the time, those third States and
organizations do so.
Also, more and more often, the Council directly commands non-State actors to do something.
Ø For instance, in a civil war, the Council requests from all the belligerents to behave in a
certain way.
The question of the binding character and direct effect of resolutions upon non-State actors and
individuals is a controversial issue because it indirectly raises the question of the international legal
personality of non-State actors: having obligations under international law means having some form
of passive international personality. But because we speak here about terrorist groups, rebellious
movements, etc., States are very reluctant to contemplate that they would have some form of
international legal personality, because States fear that legal personality would unduly enhance the
legitimacy of those non-State actors.
One should not make too much about that issue: the Charter does not prevent the Council from
taking decisions having direct effect in domestic legal orders, but, more fundamentally, what
matters is whether non-State actors conform with what the Council requires from them, irrespective
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of whether they had a legal choice to do so or not. From the point of view of the Council,
compliance or non-compliance is a factual matter and, even if non-compliance does not constitute a
breach of the binding obligation because there was no such obligation for the non-State actor, the
Council may still determine that the behavior of non-State actors is a threat to the peace and,
accordingly, take additional measures against it.
Let’s go a step further. The Security Council resolution is a unilateral act of the United Nations and
it constitutes secondary legislation by the organization. Furthermore, and according to Article 103
of the Charter (see Week 5), the obligations under the UN Charter prevail over any other
conflicting obligation under other treaties. Article 103 applies to the obligations arising from
Security Council resolutions because those resolutions are binding for the member States under the
Charter.
§ Illustration: the Lockerbie case
• Facts and unfolding
In 1988, a few days before Christmas, Pan Am flight 103 was destroyed by a mid-air explosion and
crashed on the town of Lockerbie in Scotland.
In November 1991, two Libyan nationals were charged in the United Kingdom and in the United
States for having allegedly planted the bomb on board the aircraft that caused its destruction and the
death 259 passengers and crew, and also the death of 11 citizens of the Scottish town.
The extradition of the suspects was requested. Libya refused to cooperate with the two Western
powers and claimed that under the 1971 Montreal Convention for the Suppression of Unlawful Acts
Against the Safety of Civil Aviation, it had the right to prosecute and try the two accused nationals
and to receive supporting evidence from the UK and the US.
Meeting on 21 January 1992, the Security Council adopted Resolution 731, deploring the lack of
cooperation by the Libyan government and urging it “immediately to provide a full and effective
response” to the cooperation requests it had been addressed.
On 3 March 1992, Libya instituted proceedings at the International Court of Justice against the US
and the UK, vindicating its rights under the Montreal Convention. Article 14 of that convention
provides for ICJ jurisdiction in case of disputes about the interpretation or application of the
Convention. On the same day, Libya also requested provisional measures from the Court.
Hearings took place in The Hague in late March 1992 and on 31 March 1992, just three days after
the close of the hearings, while the Court had already began its deliberation over the request for
provisional measures, the Security Council adopted Resolution 748. The Council determined that
the failure by the Libyan authorities to comply with the previous resolution – which was not clearly
binding as such – constituted a threat to international peace and security. Acting under Chapter VII,
the Council decided that Libya must comply without any further delay with the extradition requests
and commit itself to cease all forms of terrorism. The Resolution also imposed on all member States
of the UN to take several sanctions against Libya in order to induce Libyan compliance.
Furthermore, pursuant to Article 2, paragraph 6, of the Charter, the Council called upon all non-
member States and all international organizations willingly to conform with the sanctions of the
resolution.
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On 14 April 1992, the Court delivered its order and decided not to indicate any provisional
measures. Why? The Court considered that, because of Article 103, the obligations contained in
Resolution 748 prevailed over the obligations under any other international agreement, including
the Montreal Convention and that, whatever was the legal situation previous to the adoption of
Resolution 748, “the rights claimed by Libya under the Montreal Convention cannot now be
regarded as appropriate for protection by the indication of provisional measures”. The Court also
said that the indication of the measures requested by Libya would impair the rights which appeared
prima facie to be enjoyed by the US and the UK by virtue of Resolution 748. In other words: the
new obligations created by Resolution 748 replaced the rights and obligations of Libya under the
Montreal Convention. Therefore, said the Court, there was no need to protect the rights of Libya
under the Montreal Convention: between the US and the UK on the one hand, and Libya on the
other, the only obligations to apply were those under Resolution 748.
You probably know how the Lockerbie story unfolded: an agreement was found with Libya in 1998
and the two Libyans were convicted in 2001 by a Scottish court sitting in the Netherlands. Libya
paid 10 million US dollars as compensation to the victims and the UN sanctions were definitively
lifted in 2003. The ICJ case never proceeded to the merits and it was discontinued.
• The extraordinary powers of the Security Council
In a legal system of sovereign States, a legal system that is horizontal and decentralized, where
legal obligations are created by consent and free will, the Security Council has the legal authority to
create binding obligations against the will of some member States, to displace their rights and
obligations contained in perfectly valid treaties that States consented to and to unilaterally replace
them with new rights and new obligations.
Such verticality, such supremacy is quite extraordinary and, indeed, it is unique in the international
legal order.
Of course, member States are bound by Security Council resolutions because they have ratified the
Charter. So, we are ultimately back to consent. From a legal point of view, that argument is not
open to criticism. But let us face it: it is a very formal argument because no member State can
foresee what the Council might decide years after having consented to the Charter.
Be that as it may and because the powers of the Security Council are such, it is important to know
precisely what is required from its resolutions, which is a question about the interpretation of those
resolutions, and it is also important to know if there are any limits to the powers of the Council in
terms of the rules it can dispose of.
Interpretation of Security Council resolutions
When binding, Security Council resolutions are important legal instruments that benefit from legal
primacy under Article 103 of the UN Charter.
It is therefore of paramount importance to know what a binding resolution requires. If they are
derived from the Charter and take their binding force from it, Security Council resolutions are
however not of the nature of treaties: they are unilateral acts adopted by a UN organ under specific
rules and procedures. Therefore, the customary rules on treaty interpretation reflected in Articles
31-32 of the Vienna Convention on the Law of Treaties (see Week 5) do not apply, as such, to the
interpretation of Security Council resolutions.
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In the Kosovo advisory opinion, the ICJ was faced with the issue of the interpretation of Resolution
1244 (1999), more specifically if that resolution contained a prohibition to declare independence
unilaterally, and if such prohibition had been addressed to the authors of the declaration of
independence, as identified by the Court. On that occasion, the Court elaborated on the
interpretation of Security Council resolutions:
“1. Interpretation of Security Council resolution 1244 (1999)
94. Before continuing further, the Court must recall several factors relevant in the interpretation of
resolutions of the Security Council. While the rules on treaty interpretation embodied in Articles 31
and 32 of the Vienna Convention on the Law of Treaties may provide guidance, differences between
Security Council resolutions and treaties mean that the interpretation of Security Council
resolutions also require that other factors be taken into account. Security Council resolutions are
issued by a single, collective body and are drafted through a very different process than that used
for the conclusion of a treaty. Security Council resolutions are the product of a voting process as
provided for in Article 27 of the Charter, and the final text of such resolutions represents the view of
the Security Council as a body. Moreover, Security Council resolutions can be binding on all
Member States (Legal Consequences for States of the Continued Presence of South Africa in
Namibia (South West Africa) notwithstanding Security Council Resolution 276 (1970), Advisory
Opinion, I.C.J. Reports 1971, p. 54, para. 116), irrespective of whether they played any part in their
formulation. The interpretation of Security Council resolutions may require the Court to analyse
statements by representatives of members of the Security Council made at the time of their adoption,
other resolutions of the Security Council on the same issue, as well as the subsequent practice of
relevant United Nations organs and of States affected by those given resolutions.
95. The Court first notes that resolution 1244 (1999) must be read in conjunction with the general
principles set out in annexes 1 and 2 thereto, since in the resolution itself, the Security Council: “1.
Decide[d] that a political solution to the Kosovo crisis shall be based on the general principles in
annex 1 and as further elaborated in the principles and other required elements in annex 2.” Those
general principles sought to defuse the Kosovo crisis first by ensuring an end to the violence and
repression in Kosovo and by the establishment of an interim administration. A longer-term solution
was also envisaged, in that resolution 1244 (1999) was to initiate
“[a] political process towards the establishment of an interim political framework agreement
providing for a substantial selfgovernment for Kosovo, taking full account of the Rambouillet
accords and the principles of sovereignty and territorial integrity of the Federal Republic of
Yugoslavia and the other countries of the region, and the demilitarization of the KLA” (Security
Council resolution 1244 (1999) of 10 June 1999, Ann. 1, sixth principle ; ibid., Ann. 2, para. 8).
Further, it bears recalling that the tenth preambular paragraph of resolution 1244 (1999) also
recalled the sovereignty and the territorial integrity of the Federal Republic of Yugoslavia.
96. Having earlier outlined the principal characteristics of Security Council resolution 1244 (1999)
(see paragraphs 58 to 59), the Court next observes that three distinct features of that resolution are
relevant for discerning its object and purpose.
97. First, resolution 1244 (1999) establishes an international civil and security presence in Kosovo
with full civil and political authority and sole responsibility for the governance of Kosovo. As
described above (see paragraph 60), on 12 June 1999, the Secretary-General presented to the
Security Council his preliminary operational concept for the overall organization of the civil
presence under UNMIK. On 25 July 1999, the Special Representative of the Secretary-General
promulgated UNMIK regulation 1999/1, deemed to have entered into force as of 10 June 1999, the
date of adoption of Security Council resolution 1244 (1999). Under this regulation, “[a]ll
legislative and executive authority with respect to Kosovo, including the administration of the
judiciary”, was vested in UNMIK and exercised by the Special Representative. Viewed together,
resolution 1244 (1999) and UNMIK regulation 1999/1 therefore had the effect of superseding the
legal order in force at that time in the territory of Kosovo and setting up an international territorial
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administration. For this reason, the establishment of civil and security presences in Kosovo
deployed on the basis of resolution 1244 (1999) must be understood as an exceptional measure
relating to civil, political and security aspects and aimed at addressing the crisis existing in that
territory in 1999.
98. Secondly, the solution embodied in resolution 1244 (1999), namely, the implementation of an
interim international territorial administration, was designed for humanitarian purposes; to provide
a means for the stabilization of Kosovo and for the re-establishment of a basic public order in an
area beset by crisis. This becomes apparent in the text of resolution 1244 (1999) itself which, in its
second preambular paragraph, recalls Security Council resolution 1239, adopted on 14 May 1999,
in which the Security Council had expressed “grave concern at the humanitarian crisis in and
around Kosovo”. The priorities which are identified in paragraph 11 of resolution 1244 (1999)
were elaborated further in the so-called “four pillars” relating to the governance of Kosovo
described in the Report of the Secretary-General of 12 June 1999 (paragraph 60 above). By placing
an emphasis on these “four pillars”, namely, interim civil administration, humanitarian affairs,
institution building and reconstruction, and by assigning responsibility for these core components to
different international organizations and agencies, resolution 1244 (1999) was clearly intended to
bring about stabilization and reconstruction. The interim administration in Kosovo was designed to
suspend temporarily Serbia’s exercise of its authority flowing from its continuing sovereignty over
the territory of Kosovo. The purpose of the legal régime established under resolution 1244 (1999)
was to establish, organize and oversee the development of local institutions of self-government in
Kosovo under the aegis of the interim international presence.
99. Thirdly, resolution 1244 (1999) clearly establishes an interim régime; it cannot be understood
as putting in place a permanent institutional framework in the territory of Kosovo. This resolution
mandated UNMIK merely to facilitate the desired negotiated solution for Kosovo’s future status,
without prejudging the outcome of the negotiating process.
100. The Court thus concludes that the object and purpose of resolution 1244 (1999) was to
establish a temporary, exceptional legal régime which, save to the extent that it expressly preserved
it, superseded the Serbian legal order and which aimed at the stabilization of Kosovo, and that it
was designed to do so on an interim basis.
2. The question whether the declaration of independence is in accordance with Security Council
resolution 1244 (1999) and the measures adopted thereunder
101. The Court will now turn to the question whether Security Council resolution 1244 (1999), or
the measures adopted thereunder, introduces a specific prohibition on issuing a declaration of
independence, applicable to those who adopted the declaration of independence of 17 February
2008. In order to answer this question, it is first necessary, as explained in paragraph 52 above, for
the Court to determine precisely who issued that declaration.
(a) The identity of the authors of the declaration of independence
102. The Court needs to determine whether the declaration of independence of 17 February 2008
was an act of the “Assembly of Kosovo”, one of the Provisional Institutions of Self-Government,
established under Chapter 9 of the Constitutional Framework, or whether those who adopted the
declaration were acting in a different capacity.
[In paragraphs 103-108 of the advisory opinion, the Court analysed the events leading to the
declaration of independence and concluded at paragraph 109:]
109. The Court thus arrives at the conclusion that, taking all factors together, the authors of the
declaration of independence of 17 February 2008 did not act as one of the Provisional Institutions
of Self-Government within the Constitutional Framework, but rather as persons who acted together
in their capacity as representatives of the people of Kosovo outside the framework of the interim
administration.
[The Court then turned to the question whether the authors of the declaration of independence acted
in violation of Security Council resolution 1244 (1999):]
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113. The question whether resolution 1244 (1999) prohibits the authors of the declaration of 17
February 2008 from declaring independence from the Republic of Serbia can only be answered
through a careful reading of this resolution (see paras. 94 et seq.).
114. First, the Court observes that Security Council resolution 1244 (1999) was essentially designed
to create an interim régime for Kosovo, with a view to channelling the long-term political process to
establish its final status. The resolution did not contain any provision dealing with the final status of
Kosovo or with the conditions for its achievement.
In this regard the Court notes that contemporaneous practice of the Security Council shows that in
situations where the Security Council has decided to establish restrictive conditions for the
permanent status of a territory, those conditions are specified in the relevant resolution. For
example, although the factual circumstances differed from the situation in Kosovo, only 19 days
after the adoption of resolution 1244 (1999), the Security Council, in its resolution 1251 of 29 June
1999, reaffirmed its position that a “Cyprus settlement must be based on a State of Cyprus with a
single sovereignty and international personality and a single citizenship, with its independence and
territorial integrity safeguarded” (para. 11). The Security Council thus set out the specific
conditions relating to the permanent status of Cyprus.
By contrast, under the terms of resolution 1244 (1999) the Security Council did not reserve for itself
the final determination of the situation in Kosovo and remained silent on the conditions for the final
status of Kosovo.
Resolution 1244 (1999) thus does not preclude the issuance of the declaration of independence of 17
February 2008 because the two instruments operate on a different level : unlike resolution 1244
(1999), the declaration of independence is an attempt to determine finally the status of Kosovo.
115. Secondly, turning to the question of the addressees of Security Council resolution 1244 (1999),
as described above (see paragraph 58), it sets out a general framework for the “deployment in
Kosovo, under United Nations auspices, of international civil and security presences” (para. 5). It is
mostly concerned with creating obligations and authorizations for United Nations Member States as
well as for organs of the United Nations such as the Secretary-General and his Special
Representative (see notably paras. 3, 5, 6, 7, 9, 10 and 11 of Security Council resolution 1244
(1999)). The only point at which resolution 1244 (1999) expressly mentions other actors relates to
the Security Council’s demand, on the one hand, “that the KLA and other armed Kosovo Albanian
groups end immediately all offensive actions and comply with the requirements for demilitarization”
(para. 15) and, on the other hand, for the “full co-operation by all concerned, including the
international security presence, with the International Tribunal for the former Yugoslavia” (para.
14). There is no indication, in the text of Security Council resolution 1244 (1999), that the Security
Council intended to impose, beyond that, a specific obligation to act or a prohibition from acting,
addressed to such other actors.
116. The Court recalls in this regard that it has not been uncommon for the Security Council to
make demands on actors other than United Nations Member States and inter-governmental
organizations.
More specifically, a number of Security Council resolutions adopted on the subject of Kosovo prior
to Security Council resolution 1244 (1999) contained demands addressed eo nomine to the Kosovo
Albanian leadership. For example, resolution 1160 (1998) “[c]all[ed] upon the authorities in
Belgrade and the leadership of the Kosovar Albanian community urgently to enter without
preconditions into a meaningful dialogue on political status issues” (resolution 1160 (1998), para.
4; emphasis added). Resolution 1199 (1998) included four separate demands on the Kosovo
Albanian leadership, i.e., improving the humanitarian situation, entering into a dialogue with the
Federal Republic of Yugoslavia, pursuing their goals by peaceful means only, and co-operating fully
with the Prosecutor of the International Criminal Tribunal for the former Yugoslavia (resolution
1199 (1998), paras. 2, 3, 6 and 13). Resolution 1203 (1998) “[d]emand[ed] . . . that the Kosovo
Albanian leadership and all other elements of the Kosovo Albanian community comply fully and
swiftly with resolutions 1160 (1998) and 1199 (1998) and co-operate fully with the OSCE
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Verification Mission in Kosovo” (resolution 1203 (1998), para. 4). The same resolution also called
upon the “Kosovo Albanian leadership to enter immediately into a meaningful dialogue without
preconditions and with international involvement, and to a clear timetable, leading to an end of the
crisis and to a negotiated political solution to the issue of Kosovo”; demanded that “the Kosovo
Albanian leadership and all others concerned respect the freedom of movement of the OSCE
Verification Mission and other international personnel”; “[i]nsist[ed] that the Kosovo Albanian
leadership condemn all terrorist actions”; and demanded that the Kosovo Albanian leadership “co-
operate with international efforts to improve the humanitarian situation and to avert the impending
humanitarian catastrophe” (resolution 1203 (1998), paras. 5, 6, 10 and 11).
117. Such reference to the Kosovo Albanian leadership or other actors, notwithstanding the
somewhat general reference to “all concerned” (para. 14), is missing from the text of Security
Council resolution 1244 (1999). When interpreting Security Council resolutions, the Court must
establish, on a case-by-case basis, considering all relevant circumstances, for whom the Security
Council intended to create binding legal obligations. The language used by the resolution may serve
as an important indicator in this regard. The approach taken by the Court with regard to the
binding effect of Security Council resolutions in general is, mutatis mutandis, also relevant here. In
this context, the Court recalls its previous statement that :
“The language of a resolution of the Security Council should be carefully analysed before a
conclusion can be made as to its binding effect. In view of the nature of the powers under Article 25,
the question whether they have been in fact exercised is to be determined in each case, having
regard to the terms of the resolution to be interpreted, the discussions leading to it, the Charter
provisions invoked and, in general, all circumstances that might assist in determining the legal
consequences of the resolution of the Security Council.” (Legal Consequences for States of the
Continued Presence of South Africa in Namibia (South West Africa) notwithstanding Security
Council Resolution 276 (1970), Advisory Opinion, I.C.J. Reports1971, p. 53, para. 114.)
118. Bearing this in mind, the Court cannot accept the argument that Security Council resolution
1244 (1999) contains a prohibition, binding on the authors of the declaration of independence,
against declaring independence; nor can such a prohibition be derived from the language of the
resolution understood in its context and considering its object and purpose. The language of
Security Council resolution 1244 (1999) is at best ambiguous in this regard. The object and purpose
of the resolution, as has been explained in detail (see paragraphs 96 to 100), is the establishment of
an interim administration for Kosovo, without making any definitive determination on final status
issues. The text of the resolution explains that the “main responsibilities of the international civil
presence will include . . . [o]rganizing and overseeing the development of provisional institutions
for democratic and autonomous self- government pending a political settlement” (para. 11 (c) of the
resolution ; emphasis added).
The phrase “political settlement”, often cited in the present proceedings, does not modify this
conclusion. First, that reference is made within the context of enumerating the responsibilities of the
international civil presence, i.e., the Special Representative of the Secretary-General in Kosovo and
UNMIK, and not of other actors. Secondly, as the diverging views presented to the Court on this
matter illustrate, the term “political settlement” is subject to various interpretations. The Court
therefore concludes that this part of Security Council resolution 1244 (1999) cannot be construed to
include a prohibition, addressed in particular to the authors of the declaration of 17 February 2008,
against declaring independence.
119. The Court accordingly finds that Security Council resolution 1244 (1999) did not bar the
authors of the declaration of 17 February 2008 from issuing a declaration of independence from the
Republic of Serbia. Hence, the declaration of independence did not violate Security Council
resolution 1244 (1999).” (ICJ, Accordance with international law of the unilateral declaration of
independence in respect of Kosovo, advisory opinion, 22 July 2010, ICJ Reports, pp. 442-444; pp.
449-452)
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To sum up: the Court favoured a literal and strict interpretation of Resolution 1244 (1999). As a
matter of principle, this is a rather sound approach, due to the very extended powers of the Security
Council. Such approach prevents any “implicit” construction of the resolutions, notably any
“implicit authorization” to use force (see below). In substance, the Court sends this message to the
Security Council: “if you want something, you have to say it, and to say it clearly”.
Limits to Security Council’s powers and judicial review
Are there any limits on the powers of the Security Council? That question arises not only because
the Council is an organ of an international organization, but also in light of the extended nature of
its powers and their far-reaching legal consequences.
Three questions need to be addressed in that regard:
1) Are the determinations made by the Security Council as to the existence of situations
deserving that it acts under Chapter VII (i.e. a threat to the peace, breach of the peace or act
of aggression) susceptible of being reviewed and disqualified?
2) Are there rules that the Security Council cannot derogate from, nor displace by a binding
resolution, and that it must respect in all circumstances?
3) Is there an institutionalized mechanism for reviewing the resolutions adopted by the Security
Council?
- First question: reviewing Security Council’s determinations?
The first question is fairly easy to answer: as recalled earlier, qualifying a situation as being a threat
to the peace or a breach of the peace is not a judicial qualification, but a political qualification
made by a political organ.
In other words, it is for the Security Council, and the Security Council only, to determine if a
situation calls for the exercise of its powers under Chapter VII. Reaching such conclusion is not
easy, in light of the procedural rules governing the adoption of resolutions by the Security Council.
The qualification of a situation as constituting an act of aggression is more amenable to legal
qualification, but under General Assembly’s resolution 3314 (XV) (see Reading Material), the
Security Council retains a very wide power of appreciation.
The International Criminal Tribunal for the former Yugoslavia has considered that the
“determination that there exists [...] a threat [to the peace] is not a totally unfettered discretion, as
it has to remain, at the very least, within the limits of the Purposes and Principles of the Charter”
(ICTY, Tadič, IT-94-1-A, 2 Oct. 1995, para. 29). However, it is difficult to see how the UN
Purposes and Principles could usefully be used as limits to a qualification power. Rather, they can
serve as limits to the measures taken once such power has been exercised. Those limits relate to the
second question mentioned above.
- Second question: rules that the Security Council cannot derogate from?
Indeed, the second question is not too difficult to answer, from a logical and systemic point of view
at least.
Because the Security Council is an organ of the United Nations, it must act in accordance with the
Principles listed under Article 2 of the UN Charter. Therefore, the Security Council may not ignore
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the Purposes of the United Nations. This is made abundantly clear by Article 24, paragraph 2, of the
Charter.
Additionally, and because jus cogens norms are what they are, it would be very difficult to argue
that the Security Council could disregard them (and it is very unlikely that the Council would ever
intend to breach jus cogens norms). Literally, the primacy of UN obligations under Article 103 of
the Charter only exists vis-à-vis “other international agreement[s]”, which jus cogens norms are not.
If the mandatory measures adopted by the Security Council may not contradict the UN Purposes
and Principles, and must also respect jus cogens norms, the nature and appropriateness of such
measures are determined by the Security Council and it enjoys a very wide discretion in that regard.
As recalled earlier, the ICTY considered that the Security Council had the power, under Article 41,
to establish an ad hoc criminal tribunal (ICTY, Tadič, IT-94-1-A, 2 Oct. 1995, para. 36). The ICTY
also opined that:
“Article 39 leaves the choice of means and their evaluation to the Security Council, which enjoys
wide discretionary powers in this regard; and it could not have been otherwise, as such a choice
involves political evaluation of highly complex and dynamic situations.” (ICTY, Tadič, IT-94-1-A, 2
Oct. 1995, para. 39)
- Third question: mechanism for reviewing the Security Council’s resolutions?

o No action for annulment
The third question is more delicate, as there is no institutionalized mechanism by which Security
Council resolutions can be reviewed and quashed. There is no action for annulment organized under
the Charter or the ICJ Statute. This was made clear by the ICJ in the following terms:
“Undoubtedly, the Court does not possess powers of judicial review or appeal in respect of the
decisions taken by the United Nations organs concerned.” (ICJ, Legal Consequences for States of
the Continued Presence of South Africa in Namibia (South West Africa) notwithstanding Security
Council Resolution 276 (1970), Advisory Opinion, 21 June 1971, ICJ Reports, p. 53, para. 114)
The “organs concerned” include the Security Council.

o Position of different courts on the matter
§ The ICJ
As recalled earlier, the Court considered in the Lockerbie case that the rights claimed by Libya
under the 1971 Montreal Convention “cannot now be regarded as appropriate for protection by the
indication of provisional measures” (ICJ, Questions of Interpretation and Application of the 1971
Montreal Convention arising from the Aerial Incident at Lockerbie (Libyan Arab Jamahiriya v.
United States of America), Order of 14 April 1992, ICJ Reports, p. 127, para. 43). Such statement
was made at the provisional measures stage, but it seems more generally to indicate a certain
reluctance by the Court to review the legality of Security Council resolutions, even if only to set
them aside and not to annul them.
§ The ICTY
The International Criminal for the former-Yugoslavia has been more enclined to “incidentally”
review the legality of the Security Council resolution that established it, but opined that such
control should be limited to manifest violations of the UN Principles and Purposes:
“Obviously, the wider the discretion of the Security Council under the Charter of the United
Nations, the narrower the scope for the International Tribunal to review its actions, even as a matter
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of incidental jurisdiction. Nevertheless, this does not mean that the power disappears altogether,
particularly in cases where there might be a manifest contradiction with the Principles and
Purposes of the Charter.” (ICTY, Tadič, IT-94-1-A, 2 Oct. 1995, para. 22)
§ The CFI of the European Communities

In a case relating to the judicial review of the European Community measures implementing
Security Council sanctions directed at individuals accused of being affiliated with terrorist
organizations, the Court of First Instance of the European Communities considered that:
“276. [...] resolutions of the Security Council at issue fall, in principle, outside the ambit of the
Court's judicial review and that the Court has no authority to call in question, even indirectly, their
lawfulness in the light of Community law. On the contrary, the Court is bound, so far as possible, to
interpret and apply that law in a manner compatible with the obligations of the Member States
under the Charter of the United Nations.
277. None the less, the Court is empowered to check, indirectly, the lawfulness of the resolutions of
the Security Council in question with regard to jus cogens, understood as a body of higher rules of
public international law binding on all subjects of international law, including the bodies of the
United Nations, and from which no derogation is possible.” (CFI, T-306/01, Yusuf, 21 Sept. 2005,
Rec., II, p. 3626)
However, the Court of First Instance concluded that the relevant resolutions did not breach any rule
of jus cogens and it rejected the claim for annulment of the EC implementing Regulation.
On appeal, the Court of Justice of the European Communities set aside the judgment of the Court of
First Instance and adopted a “constitutional” turn favoring the autonomy of the EU legal order. The
Court of Justice did not venture into reviewing of the legality of the Security Council resolutions in
light of other norms of international law, but annulled the EC Regulation because it found it
incompatible with fundamental human rights forming part of the general principles of Community
law (in particular, the right to be heard and the right to an effective legal remedy). The Court of
Justice refused to grant any immunity from judicial review to the impugned EC Regulation for the
reason it was the implementing measure of a UN Security Resolution adopted under Chapter VII.
The Court ruled that:
“it is not a consequence of the principles governing the international legal order under the United
Nations that any judicial review of the internal lawfulness of the contested regulation in the light of
fundamental freedoms is excluded by virtue of the fact that that measure is intended to give effect to
a resolution of the Security Council adopted under Chapter VII of the Charter of the United
Nations.” (ECJ, C-402/05 P et C-415/05 P, Kadi, 3 Sept. 2008, para. 299)
Therefore, judicial review of resolutions adopted by the Security Council will most likely happen
indirectly, when the implementing measures are challenged in domestic or regional courts.
IV. USE OF FORCE BY THE UN
The Charter and the Korean War

- Original plan
The drafters of the United Nations Charter were very much influenced by the strategic command
structure that had been put in place to win the Second World War.
The establishment of a true United Nations army was not contemplated, but it was envisaged that all
members of the United Nations would undertake to make their armed forces available to the
Security Council, upon its request.
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Under Article 43 of the Charter, special agreements would be concluded for that purpose between
the member States and the UN.
Furthermore, under Article 45, immediately available national contingents were to be put at the
disposal of the UN.
A Military Staff Committee was established under Articles 46 and 47 of the Charter to advise and
assist the Security Council in matters relating to military enforcement measures. The Military Staff
Committee was to be composed of the Chiefs of Staff of the permanent members of the Security
Council and it was in charge of the strategic direction of national troops put at the disposal of the
UN, in order to implement, through military coercion, the decisions of the Security Council.
This plan never worked in practice: the Military Staff Committee met only on a few occasions just
after the Charter entered into force.
- The Cold War
As the Cold War began, it quickly appeared that it would never function properly. The Military
Staff Committee stopped to meet and it has been a dormant body of the UN ever since. It was never
reactivated and it is unlikely that it be ever reactivated.
- The Korean War
The Korean War epitomized the Cold War between 1950 and 1953.
When the war erupted in June 1950, the Security Council met and determined that the attack by
North Korea on the Republic of Korea constituted a breach of the peace, and that is Resolution 82
of 1950. The Council also “recommend[ed] that the Members of the United Nations furnish such
assistance to the Republic of Korea as may be necessary to repel the armed attack and to restore
international peace and security in the area”. That’s Resolution 83. Furthermore, the Council
recommended that those national troops made available to a unified command under the United
States of America and the Council also authorized the unified command to use the UN flag. That's
Resolution 84.
Because the military operations to repel the North Korean invasion were conducted under the UN
flag, the Korean War is often seen as a war by the UN.
But when you look at it closely, those operations under the UN auspices were based on a rather
ambiguous legal construction: the Council determined a breach of the peace, but it did not mention
Chapter VII and two days later it recommended to the member States to use force in defense of
South Korea. A recommendation is an exhortation to do something which, by and of itself, is
already legal. So, the use of force under the UN flag during the Korean War was a kind of a mix
between Chapter VII enforcement measures decided by the Security Council and collective self-
defence that does not need to be authorized or decided in any way by the UN.
Furthermore, the Security Council’s resolutions were not vetoed by the USSR because the Soviet
representative was absent during the Council meetings. Stalin had decided to practice the empty
chair diplomacy out of protest against the fact that, at that time, China was not represented at the
UN by the Mao government of Beijing, but by the pro-Western Chiang Kai-shek government – and
this only changed in 1971 at the UN. But in 1950, the Soviets hoped to block the UN by being
absent. However, they soon discovered that their absence, and therefore abstention, at the Security
Council was not considered as a veto.
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The resolutions were adopted and the Soviet representative quickly came back to New York.
From then on, the Cold War was in full swing: Moscow and Washington began to conduct wars by
proxy in different corners of the globe, and it soon appeared that the Security Council would
continue to be vetoed by one side or the other if ever the use of force against one party protected by
a big player were contemplated.
So, throughout the Cold War, the UN was left with one option that it had already experimented
twice before the war in Korea. That option is not using force in order to win wars and make peace,
but using force solely in order to keep the peace.
Peacekeeping
- Practice
Peacekeeping operations (PKO, also called “blue helmets” due to the UN color) are part of UN
practice since May 1948, when the first peacekeeping operation was established by the Security
Council.
Under Resolution 50 (1948), the Council instructed the United Nations Mediator in Palestine, in
concert with the Truce Commission, to supervise the observance of the cessation of hostilities in
Palestine and decided that “they shall be provided with a sufficient number of military observers”:
the United Nations Truce Supervision Organization (UNTSO) was established and it is still
operational today, having been entrusted over the years with the supervision of the General
Armistice Agreements of 1949 between Israel and its Arab neighbours; the observation of the
ceasefire in the Suez Canal area and the Golan Heights following the Arab-Israeli war of June 1967;
and the assistance to the UN Interim Force in South Lebanon to fulfil its mandate.
Since then, the UN has established 69 peacekeeping operations, and there are currently 16
operations under way, with more than 100,000 troops deployed on various continents. Peacekeeping
operations were an invention of the Cold War, but have surged since its end.
The size, duration and mandates of peacekeeping operations have considerably varied according to
the needs on the ground, the political circumstances and the time of their establishment. Over the
years, PKO have embraced a multi-dimensional aspect and they are usually not limited anymore to
the monitoring of truces and cease-fires, or other security issues like the disengagement and
disarmament of belligerents: peacekeeping may include civilian and police missions aimed at “state
building”, i.e. restoring and enhancing public administrations and establishing long-term
governance after conflict. The precise responsibilities, and therefore size and duration, of each
operation are defined in the mandate contained in a resolution adopted by the Security Council.
- Basic principles
Despite their variety, peacekeeping operations are based on three basic principles:
1) Consent of all parties concerned;
2) Impartiality;
3) Non-use of force, except in self-defence of the peacekeepers, and in defence of the mandate.
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o Consent of all parties concerned

Consent of all the parties concerned is essential: peacekeeping operations are not forcible
enforcement measures and are always deployed with the consent of the various governmental
authorities on the ground (and sometimes following their request). Troops contribution to PKO is
also voluntary.
In the absence of consent, the operation cannot be peacefully deployed and the Security Council
must envisage other measures, possibly the authorization to use force granted to some member
States (see below).
Peacekeeping operations are considered as subsidiary organs of the UN (Article 29, or Article 22
if established by the General Assembly: see below) and their expenses are part of the UN budget,
as approved by the General Assembly under Article 17 of the Charter.
However, the Charter does not provide as such for the establishment of peacekeeping. Peacekeeping
operations lie somehow in between pacific measures under Chapter VI and enforcement measures
under Chapter VII. Because peacekeeping operations rest on the consent of all parties concerned,
there is no need to find a clear and specific basis in the Charter for their establishment and
deployment. However, when the need of a robust mandate appears, the Security Council may resort
to its powers under Chapter VII (see below).
Once the consent of all parties concerned is secured, the Security Council adopts a resolution
establishing the operation and its mandate. As will be seen below, the General Assembly may also
establish PKO and has done so in the past. The UN concludes agreements with the member States
contributing forces and also with the host State(s). The agreement(s) concluded with the host
State(s) is called a “Status of Forces Agreement”, or SOFA.
o Impartiality
Impartiality and even-handedness towards each party to the conflict is essential for the success of
the mission and for maintaining the consent, good-will and cooperation of the main players on the
ground.
However, impartiality does not mean inactivity, nor neutrality: the PKO must be impartial in the
fulfilment of its mandate, but impartiality should not lead to neutrality when it comes to upholding
the mandate.
o Non-use of force except in self-defence of the peacekeepers, and in defence of the
mandate
Peacekeepers are usually lightly armed and are not tasked with offensive combat operations, but
they have the right to defend themselves if under attack.
The possibility to resort to defensive forceful measures has extended over the years to the defence
of the mandate, and the mandates have themselves been more robust following the tragic events of
the wars in Yugoslavia and of the genocide in Rwanda, where peacekeepers were unable to prevent
massive atrocities. Mandates have therefore included, under Chapter VII, authorizations “to use all
necessary means” in order to protect civilians under imminent threat of attack in the zones where
the operation is deployed, or to deter forceful attempts to disrupt the political process. Some
mandates have also extended to real military engagement with forces that have proven adverse to
the peace process.
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Ø See for instance the “intervention brigade” included in the MONUSCO under Resolution
2098 (2013) in Eastern DRC. In such cases, the distinction between peacekeeping and
peacemaking operations is somehow blurred.
Tribute: “A good man in Rwanda” (report from the BBC)
Peacekeepers are soldiers. Soldiers are usually
trained to serve their country, and eventually to die
for it. However, peacekeepers risk their lives for
the peoples of the far away countries where they
are called to serve, and with which they often have
very little in common, other than a shared sense of
humanity.
As every human enterprise, peacekeeping has its
pitfalls and its share of scandals. But this should
not hide the bravery and dedication of the vast
majority of men and women who served and are serving under the UN flag.
As a tribute to their work for a better and safer world, please read the moving story of Capt Mbaye
Diagne, a United Nations peacekeeper in Rwanda, in 1994
(http://www.bbc.co.uk/news/special/2014/newsspec_6954/index.html). The story is told by Mark
Doyle, formerly with the BBC.
In 2014, recognizing his bravery and dedication, the United Nations Security Council decided “to
create ‘the Captain Mbaye Diagne Medal for Exceptional Courage’ to be awarded to those military,
police, civilian United Nations personneland associated personnel who demonstrate exceptional
courage, in the face of extreme danger, while fulfilling the mandate of their missions or their
functions, in the service of humanity and the United Nations” (Resolution 2154 (2014)).
Veto at the Security Council and the role of the UN General Assembly
- The primary responsibility of the Security Council in matters of peace and security
In matters of peace and security, the Security Council enjoys a “primary responsibility” (Article
24).
Furthermore, under Article 12, paragraph 1, of the UN Charter:
“While the Security Council is exercising in respect of any dispute or situation the functions
assigned to it in the present Charter, the General Assembly shall not make any recommendation with
regard to that dispute or situation unless the Security Council so requests.”
The purpose of Article 12 is to avoid that the UN speaks with two contradicting voices, the Security
Council requesting something and the General Assembly recommending the opposite.
As recalled during Week 7, a request for an advisory opinion addressed by the General Assembly to
the ICJ is not considered as a “recommendation” within the meaning of Article 12, the General
Assembly being therefore entitled to make such request despite the exercise by the Security Council
of its responsibilities.
But what happens if the Security Council, as result of the veto by one or several permament
members, does not exercise its responsibilities over a dispute or situation which, on the face of it,
constitutes a threat to the peace, a breach of the peace or an act of aggression?
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In matters of peace and security, the Security Council has a “primary” responsibility, but not an
exclusive responsibility. Therefore, if the Security Council is blocked as a result of a veto in a
situation which should otherwise come within the ambit of Chapter VII, the General Assembly may
step in and exercise its powers under the Charter. If it is not in session, the General Assembly may
meet in an emergency session for that purpose. This was made clear under Resolution 377 (V)
adopted by the General Assembly on 3 November 1950. The resolution is entitled “Uniting for
Peace” and is also sometimes referred to as the “Acheson Resolution”, named after the then US
Secretary of State, Dean Acheson (see Reading Material, p. 31).
Under the Uniting for Peace resolution, the General Assembly does not exercise the powers of the
Security Council in place of the latter: under Uniting for Peace, the General Assembly exercises its
own powers of recommendation. Therefore, the General Assembly can only recommend to
member States to do things that they may already do.
Because peacekeeping operations are based on the consent of the host State(s) and of the member
States contributing troops, the General Assembly may establish such operations.
Ø The General Assembly did so on 5 November 1956, when it established the First United
Nations Emergency Force (UNEF I) under the Uniting for Peace emergency procedure
(Resolution 1000 (ES-1)) following the Suez canal crisis and the war between Israel and
Egypt.
The ICJ has confirmed the legality of such establishment and it also opined that the
expenses of peacekeeping operations, either established by the Security Council or by the
General Assembly, constitute expenses of the Organization within the meaning of Article
17, paragraph 2, of the Charter (ICJ, Certain Expenses of the United Nations, advisory
opinion, 20 July 1962, ICJ Reports, p. 151).
Complex state-building and the Peacebuilding Commission
On the occasion of the 60th anniversary of the foundation of the United Nations, the Security
Council and the General Assembly acted concurrently to establish the Peacebuilding Commission
(see, respectively, S/RES/1645 (2005) and A/RES/60/180).
It is an intergovernmental advisory body established as a subsidiary organ of the UN, tasked with
supporting peace efforts and nation-building in countries emerging from conflict. The
Peacebuilding commission is testimony to the multifaceted and multidimensional nature of peace
restoration. Under the identical resolutions adopted by the Security Council and the General
Assembly, the main purposes of the Commission are:
“(a) To bring together all relevant actors to marshal resources and to advise on and propose integrated strategies for
post-conflict peacebuilding and recovery;
(b) To focus attention on the reconstruction and institution-building efforts necessary for recovery from conflict and to
support the development of integrated strategies in order to lay the foundation for sustainable development;
(c) To provide recommendations and information to improve the coordination of all relevant actors within and outside
the United Nations, to develop best practices, to help to ensure predictable financing for early recovery activities and to
extend the period of attention given by the international community to postconflict recovery.”
The use of force authorized by the UN

Peacekeeping operations are specific to the UN.
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However, despite having been beefed up in recent years with more detailed and more extended
mandates, mandates that are backed with wider authorization to use force in order to uphold the
mandate are sometimes not forceful enough to impose on a reluctant government the will of the
international community. More fighting power is needed and more military force needs to be
engaged.
- The invasion of Kuwait by Iraq (August 1990)
o Resolutions 660 and 661
After Iraq invaded Kuwait in August 1990, the Security Council acted together, determined the
existence of a breach of international peace and security and required that Iraq immediately
withdrew its troops from Kuwait (Resolution 660).
Acting under Chapter VII, the Security Council imposed an extended embargo against Iraq in order
to put pressure on it and to try to secure compliance with its previous resolution. And the embargo
resolution is Resolution 661.
Iraq did not withdraw its troops from Kuwait.
o Resolutions 678
On 29 November 1990, the Security Council adopted Resolution 678: it gave Iraq “one final
opportunity, as a pause of goodwill” to comply fully with the previous resolutions demanding that
Kuwait’s sovereignty be restored. Acting under Chapter VII, the Council “[a]uthorize[d] Member
States co-operating with the Government of Kuwait, unless Iraq on or before 15 January 1991 fully
implements [...] the [previous] resolutions, to use all necessary means to uphold and implement
resolution 660 and all subsequent relevant resolutions and to restore international peace and security
in the area” (Resolution 678).
Iraq did not take that last chance and Operation Desert Storm began on 17 January 1991. Kuwait
was liberated and the combat operations ended on 28 February 1991.
o The authorization to use all necessary means
The “authorization to use all necessary means” is a diplomatic euphemism to give a green light to
wage war.
The authorization to use force formula is not to be found as such in the Charter, but it is usually
justified under Article 42. The authorized military operations are not conducted by the United
Nations, but by the member States that decide to engage their armed forces in the authorized
military operation. States are never compelled to commit troops; they are authorized to do so.
Most of the time, the State contributing the largest contingent will take the commanding lead of
what are often referred to as “multinational forces”. The States taking part in the operations are
requested to keep the Security Council regularly informed of the actions undertaken pursuant to the
authorization. The Security Council may of course rescind its authorization at it sees fit at any time.
§ Is the use of force illegal absent such authorization?
Because the use of force is authorized by the Security Council, it must be understood that such use
would be illegal absent the authorization.
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This may be debatable as far as the situation of Kuwait in 1990 was concerned and indeed, at the
very beginning of the crisis, when it imposed an embargo on Iraq, the Council referred to the right
of individual and collective self-defence in the preamble of Resolution 661.
Be that as it may, it is certain that an authorization is not a recommendation.
The “authorization to use all necessary means” formula has been repeated on a few occasions over
the years: multinational forces have been authorized to use force in Somalia, Haiti, Rwanda, Eastern
Zaire, Albania, Bosnia and Herzegovina, East Timor, Bunia in the DRC, Liberia and Libya. Each
time, States are authorized to use force in order to secure and achieve a certain outcome.
In other words, the definition of the mandate given to the multinational forces is of crucial
importance and the absence of a clear purpose for the use of force will result in the Council being
divided about the authorization.
Mandates to use force: the Iraq war of 2003 and the Libya war of 2011
- The Iraq War of 2003
The 1991 Gulf war was a legal and military success and the Security Council’s authorization to use
force seemed to open a new era of international cooperation and effectiveness of international law.
However, the very same authorization that served to liberate Kuwait in 1991 was also used to try to
justify régime change in Iraq in 2003. The international legality and wisdom of the latter war in
which tens of thousands have been killed and wounded was very controversial – but what few
realize is that the debate about the legality of the war, literally and quite surrealistically, turned
around one single word.
o Resolution 678 (1990)
When Iraq invaded Kuwait and after non-forcible sanctions proved inefficient, the Security Council
“[a]uthorize[d] Member States co-operating with the Government of Kuwait, unless Iraq on or
before 15 January 1991 fully implements [...] the [previous] resolutions, to use all necessary means
to uphold and implement resolution 660 (1990) and all subsequent relevant resolutions and to
restore international peace and security in the area” (Resolution 678 (1990))39.
When operation Desert Storm came to an end and Iraq was finally expelled from Kuwait, the
Security Council adopted Resolution 687 (1991).
It was the longest and most detailed Security Council resolution so far, and because it also imposed
the terms of the ceasefire and of the return of peaceful relations with Iraq, it was compared with the
Treaty of Versailles. In substance, the embargo imposed on Iraq under Resolution 661 (1990) was
kept in place in order to induce Iraqi compliance with a range of new obligations, including border
demarcation, dismantlement of weapons of mass destruction under international control, restitution
of Kuwaiti property and assets, and compensating war damages through the United Nations
Compensation Commission.
39
As you may recall from the first video of this section, the formula “and to restore international peace and security in
the area” appeared already in Resolution 83 (1950) adopted during the Korean war.
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During many years, Iraq played cat and mouse with the UN weapons inspectors.
This led to many incidents and setbacks, until the Security Council adopted Resolution 1441 (2002)
under Chapter VII, giving Iraq a last chance to comply. A two steps approach was adopted: Iraq
was called to hand over documents and evidence to the arms inspectors, who then needed to report
to the Security Council. Under paragraph 12 of Resolution 1441 (2202), the Security Council
“decide[d] to convene immediately upon receipt of a report in accordance with paragraphs 4 or 11
above, in order to consider the situation and the need for full compliance with all of the relevant
Council resolutions in order to secure international peace and security”.
The verb used in paragraph 12 was “to secure”: the Security Council would consider the situation
after having received the arms inspectors’ report and it would eventually take measures “to secure
international peace and security”.
o The ‘blue’ draft resolution
In the ‘blue’ draft resolution circulated on 25 October 2002 to the Security Council members by the
US and the UK, the verb in paragraph 12 was not “to secure” but “to restore”.
This was not agreeable to France and French diplomats requested that “to restore” be changed to “to
secure”. This change was included in the draft submitted on 7 November 2002 (S/2002/1198).
What difference does this make? If the Security Council said that it was going to meet in order “to
secure” peace, it meant that peace existed and needed to be secured, upheld. But if the Security
Council declared that it was going to meet in order “to restore” peace, it meant that peace needed to
be restored, i.e. that it did not exist at the moment the resolution was adopted.
The arms inspectors handed over a report in which they concluded that some stocks of weapons
were still unaccounted for, but that they could not determine whether those had been destroyed by
the Iraqi regime itself, or not. The administrations of US president George W. Bush and UK prime
minister Tony Blair came to the conclusion that Iraq could not be trusted.
o The war (2003)
Because of suspected possible links with terrorists organizations to which possible remaining stocks
of weapons of mass destruction could be transferred, the US and the UK decided to launch, in
March 2003, a massive military operation against Iraq. It resulted in the fall of Saddam Hussein, the
occupation of the country during many years, and many other developments.
The 2003 war was presented in the media as some sort of preventive use of force in the context of
the “global war on terror”.
However, the legal argument officially presented at the UN by the US and the UK was much more
subtle, conservative and narrow. It was presented to the Security Council in a letter dated 20 March
2003 (S/2003/351). The core legal argument reads as follows:
“The actions being taken are authorized under existing Council resolutions, including its resolutions
678 (1990) and 687 (1991). Resolution 687 (1991) imposed a series of obligations on Iraq,
including, most importantly, extensive disarmament obligations, that were conditions of the
ceasefire established under it. It has been long recognized and understood that a material breach of
these obligations removes the basis of the ceasefire and revives the authority to use force under
resolution 678 (1990). This has been the basis for coalition use of force in the past and has been
accepted by the Council, as evidenced, for example, by the Secretary-General’s public
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announcement in January 1993 following Iraq’s material breach of resolution 687 (1991) that
coalition forces had received a mandate from the Council to use force according to resolution 678
(1990).
Iraq continues to be in material breach of its disarmament obligations under resolution 687 (1991),
as the Council affirmed in its resolution 1441 (2002). Acting under the authority of Chapter VII of
the Charter of the United Nations, the Council unanimously decided that Iraq has been and remained
in material breach of its obligations and recalled its repeated warnings to Iraq that it will face serious
consequences as a result of its continued violations of its obligations. The resolution then provided
Iraq a “final opportunity” to comply, but stated specifically that violations by Iraq of its obligations
under resolution 1441 (2002) to present a currently accurate, full and complete declaration of all
aspects of its weapons of mass destruction programmes and to comply with and cooperate fully in
the implementation of the resolution would constitute a further material breach.
The Government of Iraq decided not to avail itself of its final opportunity under resolution 1441
(2002) and has clearly committed additional violations. In view of Iraq’s material breaches, the basis
for the ceasefire has been removed and use of force is authorized under resolution 678 (1990).”
It is true that before March 2003, even France had accepted that a material breach of resolution 687
(1991) amounted to removing the basis of the ceasefire, so as to “resuscitate” the authorization to
use force under resolution 678 (1990). After all, that resolution authorized the use of force to
liberate Kuwait, but also “to restore international peace and security in the area”. The reasoning is
fairly straightforward: Iraq had breached the conditions of the ceasefire; therefore, peace did not
exist anymore; therefore, it could be restored by using force since force had been authorized for that
purpose.
However, according to France and many other countries, that straightforward reasoning became
unsustainable following the adoption of Resolution 1441 (2002): if the Security Council had indeed
decided under paragraph 1 of Resolution 1441 (2002) “that Iraq has been and remains in material
breach of its obligations under relevant resolutions, including resolution 687 (1991)”, it had also
decided that such material breach did not amount to a situation where peace needed to be restored
because paragraph 12 announced that the Security Council would meet again “in order to secure
international peace and security”. According to France, by using “secure” instead of “restore”,
paragraph 12 had closed the argument on the restoration of peace by the use of force previously
authorized, so that a new authorization to use force was needed in order to legally wage war on
Iraq.
The legal lesson to be learnt from this tragic story is twofold:
1) First: far-reaching authorizations to use force “in order to restore peace and security” can
produce unexpected results many years later and are therefore dangerous.
Those are dangerous words, but they are nevertheless probably necessary when authorizing
the use of force because wars unfold in many unpredictable ways. Narrower mandates could
mean having to go back to New York and seek an extension of the authorization to use force
everytime an unexpected event occurs. This would be absurd and not only politically
dangerous, but also militarily.
2) Second: the legality of the 2003 war in Iraq seemingly depended on one single word: if “to
restore” had not been changed into “to secure”, the Anglo-American legal argument would
have been unreproachable.
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So: tens of thousands killed legally or illegally because of one single verb? Are
“authorization[s] to use all necessary means” a play of words? Is the legality of the use of
force under international law such a formal issue, devoid of any subtantial and moral
considerations? If the international legality of a war depends on just one word, how can we
take international law really seriously?
Those are serious questions. Answers will not be found in the formal legal procedure established
under Chapter VII.
It is to be noted that following the invasion and occupation of Iraq in 2003, the UN Security
Council was deeply divided, but, in light of the deterioring situation, it overcame those differences
by adopting several resolutions during the autumn of 2003. Acting under Chapter VII, the Security
Council notably authorized “a multinational force under unified command to take all necessary
measures to contribute to the maintenance of security and stability in Iraq” (Resolution 1511
(2003), para. 13). However, by building from the situation that resulted from the March 2003 war,
the Security Council did not retrospectively approve the initial use of force by the US and the
UK, but made the presence of foreign troops in Iraq legal from 16 October 2003 onwards.
- The Lybia War of 2011
The 2011 war in Libya also raised concerns about alleged breaches of the Security Council mandate
under Resolution 1973 (2011). Under that resolution, the use of force was authorized in order to
enforce a no-fly zone and “to protect civilians and civilian populated areas under threat of attack in
the Libyan Arab Jamahiriya, including Benghazi, while excluding a foreign occupation force of any
form on any part of Libyan territory”.
However, the régime of Colonel Kadhafi was toppled as a result of the massive air support to the
rebellion. Some have argued that the authorization to use force was deliberately misused by States
acting through NATO, in order to engage in régime change.
The ways some authorizations have been interpreted and used have proved to be a source of deep
political tensions and disagreements within the Security Council. As recalled above, this was most
notably the case as far as the 2003 war in Iraq is concerned, and more recently in relation to the
2011 war in Libya. In turn, those tensions about the use and misuse of past authorizations have led
some permanent members of the Security Council to oppose any new authorization to use force.
This has been one of the reasons why the Security Council was unable to reach consensus about a
possible military operation in the Syrian crisis, even if the reference made by some to the misuse of
past authorizations was an easy excuse to hide substantive support for one side in the conflict.
However, as a matter of principle, it is clear that if the objectives and purposes of the use of force
are not clearly defined, there is little sense in authorizing it. Because the outcomes to be achieved
by the use of force remain sometimes so much divisive, the use of force itself will soon appear
improbable. So, the issue is not so much to know whether resorting to the use of force is desirable
or not; it is rather to know for what purpose(s) should force be used. And that question is
sometimes extremely difficult to answer.
Be that as it may, when an authorization to use force is contemplated, it is important to discipline its
use – and when it has been approved, it is important to discipline its application. That is what the
Institute of International Law has tried to address and it adopted the following principles:
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“Article 2
In authorizing the use of force, the Security Council should specify the objectives, scope and modes
of control of any measure taken pursuant to that authorization.
Article 3
When the Security Council authorizes a State or a regional arrangement or agency to take measures
set out in Article 1, it may subsequently change or terminate that authorization.
[...]
Article 8
In all circumstances, the use of force should only be authorized as a last resort.
Article 9
The objectives, scope and modes of control of each authorization should be strictly interpreted and
implemented. When the use of force is authorized, it shall be conducted proportionately to the
gravity of the situation and in full compliance with international humanitarian law.
Article 10
In no case may a previous authorization be invoked for any purpose beyond its specific objectives,
time and scope.
Article 11
When the Security Council authorizes Member States or regional arrangements or agencies to
enforce its decisions, the means chosen for such enforcement shall remain within the scope of the
mandate.
Article 12
States not taking part in military operations duly authorized by the Security Council and conducted
accordingly shall not interfere with such operations.
Article 13
The lack of a Security Council reaction to or condemnation of the use of force not previously
authorized may not be interpreted as an implicit or ex post facto authorization.
This is without prejudice to the power of the Security Council to review the situation and to
authorize ongoing military operations.” (Institute of International Law, Present Problems of the Use
of Force in International Law, Authorization of the Use of Force by the United Nations, Rhodes
Session (2011); see Reading Material, p. 121)
Failure of collective security

If the collective security mechanism fails because of a veto and that the crisis situation cannot be
dealt with under the right of (collective) self-defence, what are the legal options available?
- Resorting to the General Assembly under the Uniting for Peace Resolution
One possibility is to resort to the General Assembly under the Uniting for Peace resolution, but this
can prove politically difficult and, furthermore, the powers of the Assembly are limited to
recommending measures to member States. Besides, Article 2, paragraph 7, prevents the General
Assembly from intervening in “matters which are essentially within the domestic jurisdiction of any
State”. True, it is difficult to consider today that this rule drastically limits the scope of the General
Assembly’s activities because what remains of the “domestic jurisdiction” of States is rather
limited, while the notion itself has always been vague and evolving. Nevertheless, under the text of
Article 2, paragraph 7, only the Security Council is entitled, on the basis of Chapter VII, to
M. DUPONCHEEL - 280 - 2016-2017

overcome the hurdle of the domestic affairs of States – whatever those are at the beginning of the
globalized 21st century.
- Resorting to the use of force: two distinct situations
The issue of resorting to the use of force when UN collective security has failed can arise in two
very distinct situations. The first situation is when force is envisaged for the self-protection of a
State, but short of self-defence. The second situation arises when a common interest of the
international community is at stake.
o First situation: self-protection of one State (short of self-defence)
§ The prohibition of armed reprisals (Resolution 2625)
Under the first situation, the classical answer is that States are not entitled to use force for self-
protection or tit-for-tat retaliations when they have been injured by forcible violence that does not
reach the gravity threshold of an armed attack within the meaning of Article 51 of the Charter.
This may sound somewhat unrealistic, and even somehow undesirable because it means that States
must tolerate a certain low-level degree of violence in international relations, but the purpose of the
prohibition is clear: avoid any escalation and favour peaceful means of redress.
The prohibition of armed reprisals has been endorsed by General Assembly’s Resolution 2625
(XXV) of 1970, which the ICJ found in the Kosovo advisory opinion to reflect customary
international law: “States have a duty to refrain from acts of reprisal involving the use of force”
(see also Reading Material).
§ Collective armed reprisals
In the Nicaragua v. USA case, addressing the issue of possible collective reprisals, the Court ruled
them out:
“[...] While an armed attack would give rise to an entitlement to collective self-defence, a use of
force of a lesser degree of gravity cannot [...] produce any entitlement to take collective
countermeasures involving the use of force. The acts of which Nicaragua is accused, even assuming
them to have been established and imputable to that State, could only have justified proportionate
counter-measures on the part of the State which had been the victim of these acts, namely El
Salvador, Honduras or Costa Rica. They could not justify counter-measures taken by a third State,
the United States, and particularly could not justify intervention involving the use of force.” (ICJ,
Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of
America), 27 June 1986, ICJ Reports, para. 127, p. 127)
Under Article 50, paragraph 1 (a), ARSIWA, countermeasures “shall not affect” the “obligation
to refrain from the threat or use of force as embodied in the Charter of the United Nations” (see also
Week 6 and Reading Material, p. 53).
§ “Other means”
In the DRC v. Uganda case, the ICJ made the following principled finding:
“148. The prohibition against the use of force is a cornerstone of the United Nations Charter.
Article 2, paragraph 4, of the Charter requires that: “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.”
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Article 51 of the Charter may justify a use of force in self-defence only within the strict confines
there laid down. It does not allow the use of force by a State to protect perceived security interests
beyond these parameters. Other means are available to a concerned State, including, in particular,
recourse to the Security Council.” (ICJ, Armed Activities on the Territory of the Congo (Democratic
Republic of the Congo v. Uganda), 19 Dec. 2005, ICJ Reports, para. 148, pp. 223-224)
By directing States to address themselves to the Security Council, the Court stops short of
envisaging whether it would be legal to use force outside self-defence when the Security Council
procedure has been unsuccessfully resorted to. However, the rather sweeping statement, according
to which Article 51 “does not allow the use of force by a State to protect perceived security interests
beyond” the “strict confines” of the right of self-defence, seems to close the debate in that regard.
By referring “in particular” to the Security Council, the Court exemplifies the other available means
that are, like the UN procedure, peaceful by nature.
o Second situation: a common interest of the international community as a whole
(humanitarian intervention)
The second situation is very different: it is when a common interest of the international community
as a whole is at stake, rather than the particular security interests of one State.
Ø For instance, an urgent humanitarian crisis resulting from the negligence or the deliberate
policy of a government vis-à-vis its people, or a specific fraction of its people.
§ The Security Council?
In such situation, the Security Council is particularily well suited to take adequate measures. As the
Secretary General stated in its report on the occasion of the 60th anniversary of the UN:
“As to genocide, ethnic cleansing and other such crimes against humanity, are they not also threats
to international peace and security, against which humanity should be able to look to the Security
Council for protection?” (In larger freedom: towards development, security and human rights for all,
A/59/2005, para. 125)
But what may occur if the Security Council fails to act, notably because one permanent member
vetoes the adoption of any draft resolution? If grave breaches of fundamental human rights and
international humanitarian law are committed on a large scale, or even if genocide is occurring, and
the Security Council is prevented from taking action, must the rest of the world sit idle because
using force is prohibited under Article 2, paragraph 4?
§ A deeply divisive issue
The issue of humanitarian intervention has been deeply divisive, and it is likely to remain so in the
years to come.
Ø The aerial campaing of 1999 conducted by NATO states over Serbia in reaction to the
humanitarian disaster in Kosovo is probably the most prominent case at point.
Humanitarian intervention is an issue in which legality and morality conflict, and where
considerations of legitimacy could take precedence over issues of legality, despite the fact that
legality very often enhances the legitimacy of political action.
From a purely legal point of view, and if the starting point is the prohibition to use force, one must
admit that it is extremely difficult to find solid grounds for a humanitarian exception to it: no treaty
provides for such exception, while practice has been very controversial and opinio juris very
M. DUPONCHEEL - 282 - 2016-2017

diverging. Therefore, arguing in favour of the emergence of a clear customary exception remains
difficult and not perfectly convincing. It is typically an area where lex lata (law as it is) and lex
ferenda (law as it should be) are miles apart. The discrepancy between the two can be explained by
the fear for abuse, since States rarely act with genuinely disinterested intentions and that
humanitarian intent may conceal darker motives.
• “Responsibility to protect”
In an effort to bridge lex lata and lex ferenda, and to depart from the stalemate about humanitarian
intervention, the concept of “Responsibility to Protect” (also referred to under the acronym “R2P”)
has been coined.
The new concept was endorsed in the following terms by the General Assembly on the occasion of
the 60th anniversary of the UN:
“Responsibility to protect populations from genocide, war crimes, ethnic cleansing and crimes
against humanity
138. Each individual State has the responsibility to protect its populations from genocide, war
crimes, ethnic cleansing and crimes against humanity. This responsibility entails the prevention of
such crimes, including their incitement, through appropriate and necessary means. We accept that
responsibility and will act in accordance with it. The international community should, as
appropriate, encourage and help States to exercise this responsibility and support the United Nations
in establishing an early warning capability.
139. The international community, through the United Nations, also has the responsibility to use
appropriate diplomatic, humanitarian and other peaceful means, in accordance with Chapters VI and
VIII of the Charter, to help to protect populations from genocide, war crimes, ethnic cleansing and
crimes against humanity. In this context, we are prepared to take collective action, in a timely and
decisive manner, through the Security Council, in accordance with the Charter, including Chapter
VII, on a case-by-case basis and in cooperation with relevant regional organizations as appropriate,
should peaceful means be inadequate and national authorities are manifestly failing to protect their
populations from genocide, war crimes, ethnic cleansing and crimes against humanity. We stress the
need for the General Assembly to continue consideration of the responsibility to protect populations
from genocide, war crimes, ethnic cleansing and crimes against humanity and its implications,
bearing in mind the principles of the Charter and international law. We also intend to commit
ourselves, as necessary and appropriate, to helping States build capacity to protect their populations
from genocide, war crimes, ethnic cleansing and crimes against humanity and to assisting those
which are under stress before crises and conflicts break out.” (2005 World Summit Outcome,
A/RES/60/1)
Following an effort initiated by Canada, R2P intends to difuse the tensions about the notion of
humanitarian intervention, by changing both from vocabulary and perspectives. R2P changes
vocabulary and develops an interesting (although not new) functional conception of sovereignty by
stating that States are sovereign in order to fulfil certain human purposes, but it stops short from
saying what happens if the Security Council fails to act. The diplomatic answer is likely to be: “it
has not worked because you’ve not tried hard enough, so try harder again” – but when time is of the
essence, this might prove hypocritically unproductive.
So, we are back were we started: most of the time, legality and legitimacy are mutually supportive,
but they sometimes interplay in conflicting ways – and maybe this should be the closing line of this
introductory course to international law, opening up discussion and further studies.
M. DUPONCHEEL - 283 - 2016-2017

TABLE OF CONTENT
Week 1: Introducing international law ............................................................................................ 1
International law and humanity.................................................................................................... 1
International law around us .......................................................................................................... 1
International law and its various names ....................................................................................... 2
A foundational moment ............................................................................................................... 3
From Westphalia to Versailles ..................................................................................................... 3
From Versailles onwards ............................................................................................................. 5
International law as a common language ..................................................................................... 6
Week 2: Setting the international law stage .................................................................................... 7
Setting the stage ........................................................................................................................... 7
Personality under international law.............................................................................................. 8
I. STATES .................................................................................................................................. 10
The elements of statehood.......................................................................................................... 10
State recognition ........................................................................................................................ 12
Obligation not to recognize (part I)............................................................................................ 13
Obligation not to recognize (part II) .......................................................................................... 15
Is unilateral secession prohibited? ............................................................................................. 16
The Kosovo Advisory Opinion .................................................................................................. 17
When is unilateral secession a right? Prolegomena ................................................................... 18
When is unilateral secession a right? Self-determination of peoples......................................... 19
The various meanings of the right of peoples to self-determination.......................................... 21
State continuity and state succession ......................................................................................... 22
New States and borders .............................................................................................................. 22
II. INTERNATIONAL ORGANIZATIONS........................................................................... 25
The concept of international organization ................................................................................. 25
Legal personality ........................................................................................................................ 27
Two governing principles (part I) .............................................................................................. 29
Two governing principles (part II) ............................................................................................. 30
The United Nations .................................................................................................................... 31
The foundation of the UN .......................................................................................................... 32
The International Court of Justice (ICJ) .................................................................................... 32
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Week 3: Making international law I .............................................................................................. 33

The formal sources of international law .................................................................................... 33
The adequacy of the word “sources” ......................................................................................... 34
The problem of law-making in the international community .................................................... 34
The Wimbledon case .................................................................................................................. 35
The Lotus case ........................................................................................................................... 36
Lotus overturned? ...................................................................................................................... 37
The Arrest Warrant case (Democratic Republic of the Congo v. Belgium) .............................. 38
The Kosovo advisory opinion .................................................................................................... 39
Introduction to Article 38 of the ICJ Statute .............................................................................. 40
Article 38 of the ICJ Statute (cf. reading material, p. 26) .......................................................... 40
Article 38 again .......................................................................................................................... 41
I. CUSTOM ................................................................................................................................ 42
The notion of customary international law (Article 38, par. 1, (b)) ........................................... 42
North Sea continental shelf cases (FRG/Denmark, FRG/The Netherlands) .............................. 43
Germany v. Italy ........................................................................................................................ 44
Summing up the “two elements theory” .................................................................................... 45
The interplay between contrary practice and opinion juris ........................................................ 46
Inconsistent practice and the survival of customary rules ......................................................... 47
Persistent objector, new States, regional custom and the foundation of custom ....................... 47
Where and how to find custom? ................................................................................................ 49
Week 4: Making international law II ............................................................................................. 50
II. TREATIES ............................................................................................................................ 50
The notion of treaty .................................................................................................................... 50
Treaty negotiations ..................................................................................................................... 52
Signature, ratification and entry into force ................................................................................ 53
The ICC Statute .......................................................................................................................... 55
Registration and publication ...................................................................................................... 55
UN Treaty Series ........................................................................................................................ 57
Reservations: notion ................................................................................................................... 57
Reservations: permissibility ....................................................................................................... 58
Reservations: legal effects ......................................................................................................... 59
Reservations: acceptance and objection ..................................................................................... 60
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Reservations and objections in practice: Pakistan and the CAT ................................................ 62

The validity of treaties: introduction .......................................................................................... 64
Defect of consent (competence) ................................................................................................. 65
Defect of consent (genuine and informed consent) ................................................................... 67
Jus cogens .................................................................................................................................. 68
Final note on the invalidity of treaties ....................................................................................... 70
III. GENERAL PRINCIPLES .................................................................................................. 71
General principles according to Article 38 of the ICJ Statute ................................................... 71
General principles in ICJ cases .................................................................................................. 72
IV. UNILATERAL ACTS OF STATES .................................................................................. 75
Unilateral acts of States.............................................................................................................. 75
Timor-Leste and Australia at the ICJ ......................................................................................... 76
V. UNILATERAL ACTS OF INTERNATIONAL ORGANIZATIONS ............................. 77
Unilateral acts of international organizations ............................................................................ 77
Kosovo ICJ’s advisory opinion .................................................................................................. 78
UN General Assembly resolutions and customary law ............................................................. 80
Last year’s General Assembly resolutions ................................................................................. 81
VI. SOFT LAW .......................................................................................................................... 81
Soft law ...................................................................................................................................... 81
Reading: ICJ Pulp Mills on the River Uruguay case ................................................................. 83
Week 5: Applying international law............................................................................................... 85
Applying international law......................................................................................................... 85
The binding character of treaties: generalities ........................................................................... 86
Most-favored nation (MFN)....................................................................................................... 88
Termination, withdrawal and suspension of treaties .................................................................. 89
Inadimplenti non est adimplendum ............................................................................................ 90
EU conditionality ....................................................................................................................... 91
Rebus sic stantibus ..................................................................................................................... 94
Interpreting international law ..................................................................................................... 95
Articles 31-33 of the Vienna Convention .................................................................................. 97
Treaty interpretation, including of generic terms..................................................................... 100
Interpretation and systemic integration .................................................................................... 106
Conflicting obligations (I + II) ................................................................................................. 108
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Performing international obligations ....................................................................................... 112

What is required to perform international obligations? ........................................................... 114
Relationship between international law and domestic law (I + II) .......................................... 121
Direct effect of treaties ............................................................................................................. 124
Week 6: Claiming responsibility ................................................................................................... 127
I. NOTION ............................................................................................................................... 127
The notion of responsibility in international law ..................................................................... 127
II. INTERNATIONALLY WRONGFUL ACT .................................................................... 129
The objective element of the internationally wrongful act: the breach of an international
obligation ................................................................................................................................. 129
Circumstances precluding wrongfulness: breach without responsibility ................................. 131
Responsibility without breach, accountability and collective responsibility ........................... 132
III. ATTRIBUTION................................................................................................................. 133
The subjective element of the internationally wrongful act: attribution .................................. 133
Attribution of private acts (I + II) ............................................................................................ 136
Effective control upheld ........................................................................................................... 140
Responsibility of a State in connection with the act of another State ...................................... 142
Attribution to international organizations ................................................................................ 144
IV. NEW OBLIGATIONS ...................................................................................................... 146
The new obligations arising from international responsibility: cessation................................ 146
The new obligations arising from international responsibility: reparation .............................. 147
The forms of reparation............................................................................................................ 149
The right of individuals to reparation ...................................................................................... 151
Serious breaches of obligations under jus cogens norms ......................................................... 153
V. INVOKING RESPONSIBILITY ...................................................................................... 153
Responsibility invoked by the injured State ............................................................................ 154
How to invoke responsibility? ................................................................................................. 156
Responsibility invoked by a State other than the injured State................................................ 158
Obligations erga omnes (partes) .............................................................................................. 160
VI. COUNTERMEASURES ................................................................................................... 162
The notion of countermeasures ................................................................................................ 162
Limits to the exercise of countermeasures ............................................................................... 164
Countermeasures by other states than the injured State? ......................................................... 166
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Week 7: Seeking justice ................................................................................................................. 169

I. GENERALITIES ................................................................................................................. 169
Seeking justice ......................................................................................................................... 169
Settling disputes ....................................................................................................................... 170
The obligation to settle disputes peacefully ............................................................................. 171
Political means of settlement ................................................................................................... 173
Judicial means of settlement and the interplay between judicial and political means ............. 175
II. ARBITRATION.................................................................................................................. 176
Arbitration: generalities and consent ....................................................................................... 176
Examples of compromissory clauses ....................................................................................... 178
Arbitration: institutional and procedural aspects ..................................................................... 179
Some arbitral settings ............................................................................................................... 181
III. INTERNATIONAL COURT OF JUSTICE ................................................................... 181
The International Court of Justice as an institution ................................................................. 181
The ICJ advisory jurisdiction ................................................................................................... 185
ICJ jurisdiction: access to the court ......................................................................................... 188
Acceptance of ICJ jurisdiction in practice ............................................................................... 200
ICJ proceedings ........................................................................................................................ 200
Provisional measures................................................................................................................ 201
Preliminary objections ............................................................................................................. 207
The Monetary Gold principle ................................................................................................... 208
The filing of a counter-claim by the respondent ...................................................................... 210
The intervention of third States ................................................................................................ 210
Discontinuance ......................................................................................................................... 212
Behind the scenes ..................................................................................................................... 212
The binding character of ICJ judgments .................................................................................. 216
IV. INTERNATIONAL CRIMINAL COURT ..................................................................... 217
Establishing the International Criminal Court ......................................................................... 217
ICC jurisdiction ........................................................................................................................ 220
ICC proceedings ....................................................................................................................... 223
To go further: ICC in context ................................................................................................... 223
V. DOMESTIC COURTS ....................................................................................................... 223
Turning to domestic courts ...................................................................................................... 223
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State immunity from jurisdiction ............................................................................................. 225

Immunity from jurisdiction of international organizations ...................................................... 230
Ratione personae immunity of foreign State officials ............................................................. 232
Immunity ratione personae....................................................................................................... 233
Ratione materiae immunity of foreign state officials............................................................... 234
Week 8: Upholding peace .............................................................................................................. 237
I. PROHIBITION OF THE USE OF FORCE ...................................................................... 237
International law and violence ................................................................................................. 237
From the just war theory to the Hague Conventions (1907) .................................................... 238
Versailles (1919) and the Paris Treaty (1928) ......................................................................... 240
Article 2(4) of the UN Charter ................................................................................................. 241
Article 2(4) of the UN Charter and consent to foreign intervention ........................................ 243
II. SELF-DEFENCE ................................................................................................................ 244
Self-defence ............................................................................................................................. 244
Self-defence and terrorism ....................................................................................................... 250
III. THE UN SECURITY COUNCIL .................................................................................... 254
The UN Security Council ......................................................................................................... 254
Did you know? ......................................................................................................................... 259
Legal effects of Security Council resolutions .......................................................................... 259
Interpretation of Security Council resolutions ......................................................................... 262
Limits to Security Council’s powers and judicial review ........................................................ 267
IV. USE OF FORCE BY THE UN ......................................................................................... 269
The Charter and the Korean War ............................................................................................. 269
Peacekeeping ............................................................................................................................ 271
Tribute: “A good man in Rwanda” (report from the BBC) ..................................................... 273
Veto at the Security Council and the role of the UN General Assembly................................. 273
Complex state-building and the Peacebuilding Commission .................................................. 274
The use of force authorized by the UN .................................................................................... 274
Mandates to use force: the Iraq war of 2003 and the Libya war of 2011 ................................ 276
Failure of collective security .................................................................................................... 280
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Public International Law MOOC Introduction

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PUBLIC INTERNATIONAL LAW MOOC P.

PUBLIC INTERNATIONAL LAW

Week 1: Introducing international law

International law around us

M. DUPONCHEEL -1- 2016-2017

International law and its various names

M. DUPONCHEEL -2- 2016-2017

From Westphalia to Versailles

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From Versailles onwards

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International law as a common language

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Week 2: Setting the international law stage

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Personality under international law

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o International legal instruments are mastered by other subjects, most notably by

M. DUPONCHEEL -9- 2016-2017

The elements of statehood

Obligation not to recognize (part I)

diplomatic notes stressing that the United States

Obligation not to recognize (part II)

Is unilateral secession prohibited?

The Kosovo Advisory Opinion

When is unilateral secession a right? Prolegomena

When is unilateral secession a right? Self-determination of peoples

Peoples living in non-self-governing territories and peoples subject to alien subjugation,

Resolution 1514 (XV)

The various meanings of the right of peoples to self-determination

State continuity and state succession

New States and borders

II. INTERNATIONAL ORGANIZATIONS

The concept of international organization

ICL’s Draft Articles

Two governing principles (part I)

Two governing principles (part II)

The United Nations

The UN has six main organs:

The foundation of the UN

The International Court of Justice (ICJ)

Week 3: Making international law I

The adequacy of the word “sources”

The problem of law-making in the international community

The Wimbledon case

The Lotus case

The Arrest Warrant case (Democratic Republic of the Congo v. Belgium)

The Kosovo advisory opinion

Introduction to Article 38 of the ICJ Statute

Article 38 of the ICJ Statute (cf. reading material, p. 26)

The notion of customary international law (Article 38, par. 1, (b))

North Sea continental shelf cases (FRG/Denmark, FRG/The Netherlands)

Summing up the “two elements theory”

The interplay between contrary practice and opinion juris

Inconsistent practice and the survival of customary rules

Where and how to find custom?

Week 4: Making international law II

The notion of treaty

which is governed by international law – as opposed to a contract governed by a domestic law, or

Signature, ratification and entry into force

The ICC Statute

Registration and publication

Reservations: legal effects