STATE RESPONSIBILITY
In all legal systems, failure of a subject to abide by its obligations is met by
liability. For example, if a person does not abide by state criminal laws, they
incur the liability of penal punishment after being tried and found guilty. If a
person does not abide by a contract, they incur liability of a civil nature,
having to pay damages for breach of contract or being required to perform in
terms of the contract. So it is with states. A failure to observe obligation
imposed by international law rules results in liability called Responsibility.
Breach on an international obligation by a state gives rise to the duty for
reparation. A state will be liable for example if it fails to honour a treaty
obligation, violates the territorial sovereignty of another state, damages the
property of another state or employs armed force against another state.
A.
THE NATURE OF STATE RESPONSIBILITY
The International Law Commission adopted the Draft Articles for
Responsibility of States of States for Internationally Wrongful Acts (DA) in
2001. They codify customary international Law rules on State Responsibility
and contain other new (progressive) developments. They have yet to be
converted into a law making treaty but already provide the basis for future
state practice.
1.
General Principles of State Responsibility
In terms of Article 1 of the DA, Every Internationally Wrongful Act of a
State entails international responsibility of that state.
See: Spanish Zone of Morocco
Chorzow Factory Case
Q. Are other persons in international law liable for breach of their
obligations?
The DA deals solely with the responsibility of states. The United Nations is a
subject of international Law and capable of possessing international rights
and duties (obligations…and the capacity to maintain those rights by
bringing international claims – Reparations for Injuries Case.
In terms of Article 2 of the DA provides that a state commits and
internationally wrongful act where there is an action or omission in breach of
an international obligation. Such action or omission must be attributable to a
state. It is easy to pinpoint a positive action of a state that may give rise to
state responsibility e.g. the use of force by one state against the other. In
some cases an action and omission may give rise to state responsibility e.g.
failure to honour a treaty obligation. In some cases, a mere omission will
give rise to responsibility. These are the most difficult to establish.
See: Corfu Channel Case
In terms of Article 3 of the characterisation of an act as internationally
wrongful is governed by international Law. Such characterisation is not
affected by characterisation of the same act as lawful under internal law.
What is important to note here is that an act can only be wrongful if it
breaches a tenet of international Law. So, whether an act or omission is
wrongful under internal law or not is irrelevant. Secondly a state cannot
plead that its conduct conforms to its internal law and is therefore lawful.
2.
Attribution of Conduct to a State
In terms of Article 4 of the DA the conduct of any state organ shall be
considered an act of that state under international law whether the organ is
executive, legislative or judicial or otherwise. The term organ includes any
person or entity whatever their level in the hierarchy of government.
Difference Relating to Immunity from Legal Process of a
Special Rapporteur of the Commission on Human Rights (ICJ)
The principal of the international responsibility of a federal state for all the
acts of its separate states which give rise to claims by foreign states cannot be
denied.
LaGrand Case
In terms of Article 7 the conduct of an organ of state or person or entity
empowered to exercise governmental authority shall be considered as an act
of State under international law if the organ person or entity acts in that
capacity, even if it exceeds its authority or contravenes its instructions. Thus
article deals with unauthorised or ultra vires actions of state orgasm or
entities. A state may not take refuge behind the notion that according to the
provisions of its internal law or instructions which may have been given to
its organs or against the act or omission ought not to have occurred or should
have taken a different form.
Caire Case
In terms of article 8, the conduct of a person or a group of persons shall be
considered an act of 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.
Military and Paramilitary Activities Case
3.
Breach of an international Obligation
In terms of Article 13, there is a breach of an international obligation by a
state where an act of state is not in conformity with what is required of it by
that obligation regardless of its origin or character. It does not matter whether
the breach arises out of a contractual obligation or a delict or out of civil or
criminal law. State responsibility can arise out of breach of bilateral
obligations, obligations owed to some states, or obligations owed to the
international community as a whole. They can be minor breaches or serious
breaches of peremptory norms of international Law.
An act of state in terms of Article 13 will not amount to a breach of its
obligations under international law unless the state is bound by the obligation
in question at the time that the act occurs.
Island of Palmas Case
4.
Responsibility of a state in connection with the act of another state
In terms of Article 16 of the DA, a state which aids or assists another state in
the commission of an internationally wrongful act by the latter is
internationally responsible for doing so if that state does so with the
knowledge of the circumstances of the internationally wrongful act, and if
the act would be internationally wrongful if committed by that state.
For example, the obligation not to use force may be breached by an assisting
state through permitting the use of its territory by another state to carry out
an armed attack against a third state. In the Tripoli Bombing incident if 1986,
Libya asserted that the United Kingdom was partly responsible for having
supported and contributed in a direct was in the bombings. The United
Kingdom had made its airforce bases available to American Fighter jet to
launch attacks on Libyan targets. The UK denied responsibility on the basis
that the raid on the U.S. was a lawful act of self defence against Libyan
terrorist attacks on US targets. A SC resolution concerning the attack was
vetoed. The UNGA issued a resolution condemning the military attach as a
violation if the Charter and of international Law and calling upon states to
refrain form extending any assistance and facilities for perpetrating acts of
aggression against Libya. Other examples are that a state may incur
responsibility for assisting another to circumvent UN sanctions, or for
providing arms and other military assistance to a state that uses that aid to
commit violations of Human Rights.
In terms of Article 17, a state which directs and controls another state in the
commission of an internationally wrongful act by the latter state is
responsible for that act if that state does so with the knowledge of the
circumstances of the internationally wrongful act, and if the act would be
internationally wrongful if committed by that state. Examples of this are
International dependency relationships such as “protectorates” where the
dominant state would be liable under international law for the wrongful act
attributable to the dependant state. Another example is military occupation.
During the belligerent occupation of Italy by Germany in the Second World
War, the Italian police acted under the control and direction of the Germans.
Thus, when the Holy See protested against wrongful acts committed by
Italian police who entered St. Paul’s Basilica in February 1944, the
responsibility of the German Authorities was asserted. As the occupying
state, it was responsible for the actions of the occupied state which it
controls.
Q. Would America be liable for wrongful acts committed under international
Law by Iraq which it is currently “occupying”?
Article 18 provides that a state which coerces another to commit an act that is
internationally wrongful would be liable for such an act.
Romano-Americana Case
5.
Circumstances precluding wrongfulness (Art 20 – 27 DA)
The conduct of a state will not be wrongful under international law where the
acting state has the consent of another state to act as it does; where the act is
a lawful measure of self defence; where the wrongful act consists of a
countermeasure in terms of the (DA Art 49 – 54); where the act is due to a
force majeure – irresistible force or unforeseen event beyond the states
control; where the act is the only reasonable was in a situation of distress of
saving the life of the author (the doer of the act) or the lives of others placed
in his care.
Examples of restitution are material return or restoration of territory,
return of persons or property e.g. In the Diplomatic and Consular
Staff Case, the ICJ ordered Iran to immediately release every
detained US national. In the Temple of Preah Vihear Case, the
Thailand was ordered o restore the temple and certain Artefacts
therein to the Cambodia. Restitution could also mean the reversal of
some juridical act.
Necessity does not preclude wrongfulness under international Law.
Necessity is defined as grave danger to the essential interest of the state of or
of the International community as a whole. It arises where there is an
irrevocable conflict between an essential interest on the one hand and an
obligation of the state invoking necessity on the other. Necessity will excuse
non performance of international obligations in very rare instances. The
instances when necessity may be invoked are first, that the wrongful act is
the only means if the state to safeguard an essential interest against a grave
and imminent peril and secondly, the wrongful act does not impair an
essential interest of the state(s) towards whom the obligation exists or of the
international community as a whole.
In the Gabcikovo- Nagymaros Project (Danube Dam) case, the court
recognised that the existence of this principle
6.
Legal Consequences of Sate Responsibility
In terms of Article 29 of the DA the legal consequences of an internationally
wrongful act do not affect the continued duty of a responsible state to
perform the obligation breached. Such a state will also be under an obligation
to cease that act or offer appropriate assurances and guarantees of non
repetition if circumstances so require. The responsible state is also under a
duty to make full reparation for the injury caused by the internationally
wrongful act. The requirement for and the meaning of reparation was set out
in the Factory at Chorzow case.
In terms of Article 34 DA full reparation means
a)
Restitution – to re-establish the situation which exited before the
wrongful act was committed provided and to the extent that
restitution id not materially impossible, and does not involve a
burden out of proportion to the benefit deriving from the restitution
instead of compensation.
Material impossibility means where the items to be returned or
restored has been destroyed or is not in the same conduction it was
in when it was taken. Where there is a material impossibility,
restitution will not be ordered.
A burden out of proportion with the benefit means occurs where
there is a grave disproportional between the burden which
restitution would impose on the responsible state and the benefit
which would be gained wither by the injured state or by any victim
of the breach. It is therefore determined by equity and fairness.
Restitution enjoys primacy over other forms of reparation.
b)
c)
Compensation – The responsible state has an obligation to pay
compensation in so far as damage is not made good by restitution.
Satisfaction - A state responsible for a wrongful act at international
law has a duty to give satisfaction in so far as restitution and
compensation cannot make good the wrong. Satisfaction may
consist of acknowledgment of the breach, an expression of regret, a
formal apology or other appropriate modality. Satisfaction may not
be out of proportion to the injury nor take a form humiliating to the
responsible state. This is the remedy for injuries that are not
financially assessable - like moral or material damage – that amount
to an affront ion the state.
Rainbow Warrior Case
[Clearly restitution and compensation were not viable
options of reparation in this case.]
These forms of reparation can be used singly or in combination.
6.
Serious Breached of Obligations under Peremptory Norms of
International Law
In terms of Article 40 DA, a breach of peremptory norm of international law
is serious if it involves a gross or systematic failure by the responsible state
to fulfil its obligations. Such conduct is prohibited because of the threat it
poses to the survival of states and their peoples as well as to basic human
rights. Peremptory norms include the prohibition against aggression,
prohibition against slavery and slave trade, genocide, racial discrimination
and apartheid as well as the prohibition against torture.
Article 41 places states under a positive duty to cooperate to bring to an end
all serious breaches of the peremptory norms of international law through
lawful means. Lawful means available to a state are non recognition of
territories annexed through use of force, or non recognition of states that
deny other territories the right to self determination e.g. S.A.’s occupation of
SW Africa was not recognised under international law. The other lawful
means of fulfilling this duty is the prohibition from rendering aid or
assistance in maintaining the situation created by the material breach. This
occurs after the fact (of the breach).
7.
Invocation of State Responsibility (Articles 42 and 48)
Per Article 42, an injured state can invoke the responsibility of another where
the obligation breached is owed to that state individually (by bilateral treaty)
or to a group of states including that state (by multilateral treaty) or to the
international community as a whole (peremptory norms).
In terms of Article 48, Any state other than an injured state may invoke the
responsibility of another state if the obligation breached is owed to a group
of states including that state and is established for the protection of a
collective interest of the group or where the obligation breached is owed to
the international community as a whole.
Such injured state may claim cessation of the internationally wrongful act,
assurances and guarantees of non repetition and reparation.
8.
Counter measures
Countermeasures are recognised as justifiable in some circumstances. What
are they? The term reprisals includes otherwise unlawful action, including
forcible action, taken by way of self help in response to a breach. In modern
times it is limited to action taken during a conflict. Countermeasures connote
all unlawful action taken in response to a breach but outside of conflict.
Retorsion is unfriendly conduct which is not inconsistent with international
obligations of the state engaging in it but which is in response to an
internationally wrongful act. This includes ceasing normal diplomatic
relations, embargoes and withdrawal of voluntary aid programmes.
Countermeasures include conduct taken in derogation from treaty obligations
but which is justified as a necessary and proportional response to an
internationally wrongful act. Hey are essentially temporary measures taken to
achieve a specific end. Their justification terminates once the end is
achieved.
In terms of Article 49 DA, an injured state may only take countermeasures
against a state which is responsible for an internationally wrongful act in
order to induce that state to comply with its obligations. Countermeasures are
limited to the non performance for the time being of international obligations
of the state taking the measures and they must be taken in such a way that
they permit the resumption of performance of the obligations in question.
The countermeasure should be reversible.
In terms of Article 50, the use of countermeasures does not allow an injured
state to violate the prohibition against the threat or use of force, obligations
of fundamental human rights, obligations prohibiting reprisals for
humanitarian reasons (there is a prohibition against reprisals against
protected persons an e.g. civilian AP 1 Geneva Conventions) and peremptory
norms of international law. Such an injured state must also pursue the dispute
settlement procedure with the responsible state and respect diplomatic and
consular agents and premises.
Article 51 provides that Countermeasures must be proportional to the injury
suffered taking into account the gravity of the international wrong and the
rights in question.
Air Services Arbitration
Danube Dam Case
In terms of Article 53, countermeasures must be stopped as soon as the
responsible state summates.
B.
THE TREATMENT OF NATIONALS OF OTHER STATES
(ALIENS)
International Minimum standard or national treatment
One important aspect of state responsibility concerns the obligations that
states owe the nationals of other states within its territory. Mistreatment of
these nationals by organs or officers of the state may give rise to state
responsibility on the international plane. This arises where the host state’s
conduct has fallen below the standard of treatment international law requires
it show to aliens.
The standard of treatment expected of a host state is the international
minimum standard for the treatment of aliens.
Neer Claim
State responsibility may arise directly, through an act or omission
attributable to the state or indirectly where the state is guilty of denial of
justice, that is cases where the non nationals are prejudiced in their attempts
to obtain a national law remedy in a dispute against another private
individual.
2.
Injury of an alien as an injury to the state
Where the host state’s treatment of a foreign national falls short of
international minimum standards, the state of nationality of the non-national
may pursue, at its option, an action on the international plane against the host
state. This is called espousal of a claim.
Diplomatic protection is a matter of discretion for the national state.
International Law has not yet recognised that a state is under a duty to
intervene by diplomatic or other means to protect a citizen who is suffering
or threatened with injury in a foreign state. A state is also not obliged to
hand over to a claimant compensation received in his case.
Administrative Decision no 5
3.
Admission and Expulsion
One of the rights possessed by every state is he right to refuse to permit an
alien to enter that state, to annex whatever conditions it chooses to the right
of entry. To expel or deport from that state at its pleasure even a friendly
alien, especially if it considers his presence in the state opposed to its peace,
order and good government or to its social or material interest. Per Privy
Council in Attorney General for Canada v. Cain.
The expulsion should not be arbitrary, discriminatory or in breach of the
expelling states obligations under treaty or customary international law. A
expulsion is arbitrary where unnecessary force is used to effect the expulsion
or the alien is mistreated or he is refused a reasonable opportunity to safe
guard his property (protect his proprietary interests prior to removal). An
expulsion is contrary to customary international law where the alien expelled
has a continued right of residence in the country.
Rakin v. Iran (Iran-US Claims Tribunal)
International Products Corp. v. Iran
Yeager v. Iran
Good v. The Attorney General (2) 2005 2 BLR 337 (CA)
4.
Expropriation.
Expropriation is the compulsory taking of private property by the state. One
form of expropriation that has become more common in the recent past is
nationalisation by law of private business with a view to their management
being made public for the national interest. It is generally agreed that
expropriation is legal however; developed states suggest that it must take
place in accordance with an acceptable minimum standard set by
international law. Some developing countries deny this maintaining that
circumstances and conditions of expropriation should be left to the state to
regulate in its own discretion.
The GA resolution 1803 Permanent Sovereignty over National Recourses
of 1962 recognises the rights of peoples and nations to permanent
sovereignty over their national wealth and resources. Further, it states that
nationalisation and expropriation shall be based on ground of public utility,
security or national interest which override purely individual or private
interest whether domestic or foreign. The owner of expropriated property is
entitled to appropriate compensation in accordance with the law in the state
and in accordance with international law. In the case of a dispute over
expropriation, the national jurisdiction of a state shall be exhausted first. But
by agreement between the parties and the state, settlement of the dispute may
be by arbitration or international adjudication. This resolution has been
adjudged in some arbitral awards as reflecting the position of customary
international law - Texaco Case, Amniol Case, Amoco Case, and Sedco
Case.
The Charter of the Economic Rights and Duties of Sates 1974 recognises
that every state shall freely exercise full permanent sovereignty including
possession use and disposal over all its wealth, natural resources and
economic activities. It also recognises each states right to nationalise,
expropriate, or transfer ownership of foreign property in which case
appropriate compensation should be paid by the state taking such measures
and in accordance with relevant laws. Where a dispute arises with respect to
compensation, local remedies must first be exhausted or the parties agree to
other peaceful means of resolving the dispute. Again commentators agree
that this is a restatement of customary international law.
Starrett Housing Corporation v. Iran
Iraq - US Claims Tribunal (1983)
The Starrett case considered the meaning of taking of property. This kind of
expropriation is referred to as creeping or constructive expropriation as it is
characterised by taking the effective use of property away from the original
owner. Taking can be by effecting transfer of tile in the property by law as in
typical cases of nationalisation or expropriation. It also extends to physical
seizure of property; transfer under duress, confiscatory taxation – e.g. Burma
once had a 99% tax on profits which was characterised by the UK as de facto
expropriation without compensation.
5.
Procedures for settling disputes concerning the treatment of
Aliens
a)
Nationality of Claims
i)
The General Rule
In terms of the 1930 Hague Convention of Certain Questions Relating to
the Conflict of Nationality of Laws Article Each state must determine
under its own law who are its nationals. In terms of article 2, any question as
to whether a person possesses the nationality of a particular state shall be
determined according to the laws of that state. Per article 3, a person having
2 or more nationalities may be regarded as a national of each of the states
whose nationality he possesses. In terms of article 4 a state may not afford
diplomatic protection to one of its nationals against a state whose nationality
such a person also possesses. In terms of Article 5 A third state shall
recognise within its territory only one nationality of a person holding dual
nationality being the effective nationality of that individual.
Nottebohm Case
Liechtenstein v. Guatemala (1955)
Q – Nottebohm lost German nationality after naturalisation. What state
should have protected him against Guatemala in accordance with the
“genuine” connection requirement of the court? Perhaps Germany?
Q - Should the “genuine connection” requirement exist to root out claims that
are brought under a “nationality of convenience”?
ii)
Protection in Cases of Dual Nationality
Canevaro Case Italy v Peru (1912)
Salem Case Egypt v US (1932)
Megre Claim Italian US Conciliation Commission (1955)
Amoco International Finance Corporation v. Iran
Iran - US Claims Tribunal (1987)
Texaco v. Libya
Aminoil Case
Kuwait v. American Independent Oil Co (1982)
Iran US No A /18 Iran US Claims Tribunal (1984)
iii)
Protection of Companies and Shareholders
Barcelona Traction Light and Power Company Case Belgium v Spain
(1970)
b)
Exhaustion of Local Remedies
Article 44 of the ILC draft articles on state responsibility provides that the
responsibility of a state may not be invoked if the claim is one to which the
rule of exhaustion of local remedies applies and any available and effective
local remedy had not been exhausted.
In terms of article 6 of the vclt, every state has capacity to conclude a treaty.
This is a codification of customary international law. The capacity to make
treaties is in fact valuable evidence of statehood.
Federal states may have the capacity to make treaties if this power is
included in the federal constitution and only within the limits of provided in
the constitution.
Q. Do oral treaties exist under international law?
Ambatielos Arbitration Greece v U.K. (1956)
Legal Status of Eastern Greenland (Denmark v Norway) (1933)
THE LAW OF TREATIES
a)
General and terminology
Treaties are to international law what legislation is to municipal law. They
are used to create binding rules, codifying, clarifying and supplementing
customary international law. The Vienna convention on the Law of treaties
was concluded as a multilateral law making treaty to codify customary law
treaties.
Municipal laws regulate life within a state. In order to enact laws between
states, the international community relies on treaties; the sale of property, the
demarcation of borders, and the creation on international bodies is all done
by way of treaties.
b)
Definition
A treaty is defined under Article2 of the VCLT as an agreement concluded
between states in written form and governed by international law,
whatever its designation.
Other terms that are synonymous with the word treaty are convention,
protocol, declaration, charter, covenant, pact, act, statute, agreement,
concordat, declaration, joint communiqué of ministers after a meeting,
exchange of notes, exchange of letters (read like offer and acceptance). The
nomenclature chosen is unimportant.
Just because the vclt applies only to written treaties does not exclude the
presence on oral treaties at international law.
Can a state create legally binding obligations through unilateral public
announcements in the absence of negotiations and without quid pro quo
(literal - something for something – something given in return for
something of equivalent value)?
Nuclear Test Cases
Australia and New Zealand v France [1974]
The existence of a rule at international law that a state can create legally
binding obligations by universal pronouncements as the court suggests is
considered by jurists to be doubtful. If there is such a rule, further evidence
of the intention to be bound by such unilateral statements would be required,
the evidence availed in the nuclear tests cases is viewed by some not to have
been enough.
c)
Procedure for making treaties
Every state has treaty making power. Each state is free at international law to
make its own constitutional arrangements for the exercise of its treaty
making power. Botswana is a dualist state. This means that treaties signed by
the head of state and duly authorised government officials do not form part
of Botswana’s law until they are incorporated into Botswana law by
parliament legislation. As a result of this individuals cannot derive rights
from such treaties nor be subjected to obligations in respect of such treaties.
In contrast America is a monist state, by mere ratification, a treaty becomes
part and parcel of US law and any legislation that is contradictory to such
treaty provisions must yield to the treaty. Individuals are also able to derive
rights and are subject to duties in terms of such a treaty.
In terms of article 7 of the vclt, any person is considered as representing a
state for the purposes of making a treaty if he produces appropriate full
powers or if it appears from the practice of the state concerned that its
intention was to consider that person to be representing that state with full
powers. Full powers is a document emanating from a state designating a
person as having authority to negotiate adopt authenticate a text for a treaty
and expressing consent of the state to be bound by such a treaty. The
following persons can act without having to produce full powers. These are
Heads of state and government, ministers of foreign affairs, heads of
diplomatic missions, representatives of states at international conferences. In
terms of article 8 an act concluding a treaty performed by a person without
authority has no legal effect unless it is later confirmed by that state.
Article 11, consent to be bound by a treaty is by signature, exchange of
instruments constituting a treaty, ratification, acceptance, approval accession
or any other means so agreed. Usually a treaty will designate when it will
come into force by signature alone or whether ratification will be required.
Ratification today requires signature subject to parliamentary confirmation.
This allows the government a further opportunity to examine the treaty after
it has been signed by the government representative. Accession occurs where
a state becomes party to a treaty to which it is not a signatory.
In terms of article 16 exchange or deposit into the depositary of an
instrument if ratification, acceptance approval or accession establishes a
state’s consent to be bound by a treaty.
Signature: After negotiation, of the treaty, the text is adopted and
authenticated. Authentication of the text is evidenced by signature. Where a
signature is subject to ratification, acceptance or approval, signature does not
signify consent to be bound. It qualifies the signing state to proceed to
ratification, acceptance or approval. A state that has signed a treaty must per
Article 18 of the vclt, a state I required to refrain from acts that would defeat
the object and purpose of a treaty when it has signed the treaty exchanged
instruments subject to ratification acceptance or approval or pending entry
into force of the treaty or until it expresses its intention not to be bound by
the treaty. This is an obligation of good faith to refrain from acts calculated
to frustrate the object of the treaty. Signature does not create an obligation to
ratify. A state may indicate that it no longer intents to be bound by the treaty.
Ratification: This involves two distinct steps. Firstly, an act, by the
appropriate organ of state e.g. parliament, to incorporate the law into
national legislation. The second is the formal exchange of the instrument
of ratification between states or the formal deposit of the instrument of
ratification in the depository for such instrument. Ratification by
exchange or deposit of instruments is evidence of consent to be bound by
a treaty.
Accession, acceptance and approval: This occurs when a state which did
not sign a treaty already signed by other states formally accepts its
provisions. It may occur before or after the treaty has entered into force. The
words acceptance, approval, adhesion are all synonymous with accession.
c) Reservations
A reservation is defined in article 2 of the VCLT as a unilateral statement
made by a state when signing or ratifying or accepting a treaty where it
modifies or excludes the legal effect of certain provisions of the treaty. In
terms of art 19 of the VCLT a state may, make reservations to a treaty except
where they are prohibited by that treaty. A reservation may never be
incompatible with the object and purpose of the treaty. In the case of a
bilateral treaty a reservation amounts to a counter offer which the other state
may accept or reject. In the case of a multilateral treaty a reservation must be
accepted by another state in order that the reserving state is considered to be
party to that treaty in relation to that state. A reservation is deemed to be
accepted by other states if they do not object 12 months after being notified
of the reservation.
Belilos v. Switzerland
iv) Entry into force of treaties
In terms of article 24 of tie VCLT, a treaty will come into force on the date
that it provides or in such a manner that it may provide or as negotiating
states agree, failing which it shall come into force as soon as consent to be
bound by the treaty has been established for all negotiating states. If a state
only consents to be bound by a treaty after it has come into force then it shall
be bound by that treaty on the date it consents.
d)
Observance and application of treaties
In terms of the principle pacta sunt servanda, every treaty in force is
binding on the parties to it and must be performed by them in good faith. Art
26 VCLT. This is a fundamental principle of the law of treaties. A party may
note invoke provisions of internal law as a justification for failure to perform
in terms of a treaty [art. 27]. Treaties are not retroactive unless it is the
partied intention that they should be. They apply across a states entire
territory ( the Guantanamo question).
e)
Validity of treaties
i)
non compliance with requirements of municipal law Art 46 and
47 VCLT
A state cannot rely on the fact that treaty provisions violate its municipal
laws regarding competence to conclude a treaty as invalidating its consent to
be bound unless the violation was manifest and involved an internal law of
fundamental importance. A violation would be manifest where it would be
objectively evidence to any state in similar position exercising normal
practise and good faith. Where the state representative making a treaty is
subject to a restriction and he fails to inform other contracting parties to that
treaty, the state in question is still bound by the treaty they have consented to.
ii)
Error (Art 48)
A state can invoke an error in a treaty as invalidating its consent to be bound.
It has to be an error relating to a fact or situation that the state assumed to
exist at the time it concluded the treaty and one which formed an essential
basis of its agreement to be bound. This will not apply where the state in
question is the cause of its own error.
The border between Thailand (former Siam and Cambodia, a colony of
France was decided in a 1904 treaty as following the watershed line between
the two countries. After surveys, the temple of Preah was placed in
Cambodia. Cambodia sued Thailand at the ICJ asking them to remove the
guards and other persons place d at the temple. Thailand counter claimed that
the map had a material error as it did not follow the watershed line. The court
noted that the Siam administration had accepted the map and went on to
state that it is an established rule of law that a plea of error cannot be allowed
as an element vitiating consent if the state pleading it contributed by its own
conduct to the error, o could have avoided it or where circumstances were
such that they put the party on notice of the error. The court rejected
Thailand’s argument.
iii) Fraud and corruption (art 49 and 50)
A state is not bound by a treaty if it was induced to conclude it by the
fraudulent conduct of another state. Similarly where consent to be bound has
been obtained by the corrupting of a state representative directly or indirectly
by another negotiating state, such state can invoke such corruption as
invalidating its consent to be bound.
vi)
Coercion (Art 51 and 52)
Where a state expresses consent to be bound as a result of coercion of its
representative through acts or threats directed against him, such consent will
have no effect. Similarly, a treaty will not be binding where consent was
obtained by the threat or use of force in violation of the UN Charter.
v) Jus Cogens
Article 53 and 64
A treaty is void if at the time of its conclusion it is in conflict with a
peremptory norm of international law – accepted by international community
as a whole and from which no derogation is permissible. Any treaty that is in
conflict with a new peremptory norm of international law becomes void and
terminates. E.g. Prohibition against genocide, slavery, aggression, apartheid,
prolonged detention of persons.
f)
Temple of Preah Case
Interpretation of treaties
There are several schools of thought on how treaties should be interpreted.
One school propounds that the “intentions” of the parties in concluding the
treaty should be paramount. It is also called the founding fathers school.
Another suggests that that the text of the treaty must be given its ordinary or
apparent meaning. It is also called the textual approach. Studying and
analysing the test would achieve this. Another school of thought prefers the
aims and objects of the treaty be given effects. In other words the general
purpose of the treaty is paramount. Particular clauses are then construed in
the light of what emerges as the general purpose of the treaty (teleological
approach). This may differ from what the founding fathers had intended. All
three can produce the same result or different results.
Interpretation of peace treaties Case ICJ 1950
Per Art 31 VCLT a treaty must be interpreted in good faith in accordance
with the ordinary meaning to be given to the terms of he treaty in their
context and in the light of its object and purpose. Context is defined to
include the test, the preamble, the annexes, any agreement relating to the
treaty made by all the parties, any instrument made by one or more of the
parties relating to the treaty, any agreement between the parties regarding the
treaties interpretation or application, any subsequent practice regarding
interpretation of the treaty and any relevant rules of international law. Special
meaning shall be given to a terms if it is established that the parties intended
it.
The VCLT does not choose one school of interpretation over another but
merely includes all of them in article 31. They all have been applied in
international law decisions from time to time.
In terms of Article 32, recourse may be had to supplementary means of treaty
interpretation in order to establish meaning of the treaty. These
supplementary means include preparatory work of the treaty as well as
circumstances surrounding its conclusion. Preparatory work includes
recourse of the drafting of the treaty, negotiations, and records of
independent bodies and unilateral statements of government spokes men
made prior to the signing of the treaty. All these may reveal the intentions of
the contracting parties.
Article 33 provides that when a treaty is drawn up in more than one
language, each language is equally authoritative unless the parties otherwise
agree.
g)
TERMINATION SUSPENSION AND WITHDRAWAL FROM
TREATIES
i)
Termination according to treaty or by consent Art 54 – 59
VCLT
The VCLT provides that a treaty may be terminated, or its operation
suspended in accordance with h the provisions of that treaty or at any time by
consent of all the partiers to the treaty. Parties to a multilateral treaty may
agree to suspension of a treaty between themselves alone to the exclusion of
other parties if suspension is possible under the treaty and such suspension
would not defeat the object and purpose of the treaty. They must then notify
other parties of their intention to conclude such an agreement and the
provisions whose operation they intend to suspend. .
A treaty that had no clause regarding denunciation or withdrawal cannot be
withdrawn from unless it is established that the parties intended it to be
possible to withdraw from the treaty or the right to withdraw may be implied
from the provisions of the treaty, In order to withdraw from a treaty, a party
must give 12 months notice.
A treaty may also be terminated where all the parties to it conclude a later
treaty relating to the same subject matter with the intention that the subject
matter should be governed by the later treaty. Incompatibility of the
provisions of the later treaty with those of the earlier one so that both cannot
be applied at the same time will also signify termination of the earlier treaty.
The UN Charter is an example of a treaty that allows termination by
withdrawal pr Art 56 (1) a
ii) Termination by material breach
A material breach is defines by Article 60 VCLT as a repudiation of the
treaty not sanctioned by the VCLT or violation of a provision essential to the
accomplishment of the object and purpose of the treaty.
In terms of Art 60 of the VCLT A material breach of a bilateral treaty by one
party entitled the other to terminate the treaty or suspend its operation in
whole or in part. Breach of a multilateral treaty entitles the other party by
unanimous agreement to terminate the treaty or suspend operations of the
treaty between themselves and the defaulting state or between all the parties.
Legal Consequences for states of the continued presence of South Africa in
Namibia notwithstanding Security Council Resolution 276 (1970)
Advisory Opinion 1971
A state cannot terminate or suspend treaty provisions, which relate to the
protection of the human person contained in treaties of a humanitarian
character.
iii) Supervening impossibility of performance
In terms of article 61 a party may terminate a treaty where it is impossible to
perform. The impossibility must arise from permanent disappearance or
destruction of an object indispensable for the execution of the treaty.
Temporary impossibility justifies a suspension of the operation of the treaty
as opposed to a termination. Permanent disappearance according to the ILC
could be drying up of a river (riparian treaty), sinking of an island or
destruction of a dam.
A party may not create impossibility by committing a breach of he treaty or
some other international obligation and then seek to rely on such
impossibility to terminate the treaty.
iv) Fundamental change of circumstances Art 62
In contract law as in international law the principle of rebus sic stantibus
applies. It suggests that contract/ treaties will remain in force “things
remaining as they are”. This allows for parties to resile from a contract to
terminate or suspend a treaty when a fundamental change of circumstances
can be proved. In terms of Art 62 of the VCLT A state may rely on the
doctrine of “fundamental change of circumstances” as a ground for
terminating or suspending a treaty if those circumstances constituted an
essential basis for the consent to be bound and the effect of the homage in
circumstances is a radical transformation of the extent of the obligations still
to be performed under the treaty.
This ground is excluded from operation in treaties that establish boundaries
or the fundamental change has resulted from the breach of a treaty or other
international obligation by the state invoking it.
Fisheries Jurisdiction Case
UK v. Iceland 1974
Gabcikovo Nagymaros Case (important IR)
Hungary Slovakia 1997 Art 60, 61 and 62
v) Severance of Diplomatic or Consular Relations
In terms of Art 63 VCLT severance of diplomatic relations will not affect the
validity of treaties concluded between them except in so far as diplomatic
relations are essential for the application of the treaty,
vi) Ius Cogens
In terms of Art 64 VCLT A treaty falling foul of a new peremptory norm of
international law becomes void and terminates.
Conclusion
Termination of a treaty makes it void. Parties are released from their
obligations under such treaty and have no rights emanating from it.
THE USE OF FORCE
1.
Use of Force before and after 1945 – W 8 April
War can begin with a declaration of war or a commission of an act of war by
a state done with animo belligerendi or without the requisite intention but
which is taken by the opposite state to be an act creating a state of war. The
state of war is not lightly implied. And even the return of force by a state on
which force has been used does not necessarily result in war. The existence
of a state of war therefore depends upon the determination of the parties
involved. State practice is that for a war to exist at least one party must assert
its existence.
After WW1 the League of Nations imposed some limitations on the resort to
war. In 1928, a comprehensive prohibition was adopted by the international
community in the General Treaty for the renunciation of War. This treaty
condemned the recourse to war for the resolution in international
controversies and agreed to settle all disputes peacefully. The treaty was
signed by 63 nations, virtually the entire international community at the time.
The treaty was in force when WW11 started and has never been terminated.
After 1950, states entered into the United nation charter and in article 2 (4)
declared as follows:
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. Force refers to the use of armed force, not economic or other form
of political pressure. Article 2 (4) has crystallised into a rule of international
law binding on all states.
Nicaragua Case (merits) Nicaragua brought the United States to court
claiming that the US had used direct armed force against it by laying
mines in Nicaraguan waters causing damage to ships ports oil
installations and a naval base and that it had given assistance to the
contras, guerrillas fighting to over throw the government. The court
decided the matter on the basis of customary law as had no jurisdiction
to decide it on the basis of treaty law due to reservations by the United
States to the UN Charter. The court ruled that there was agreement
between the parties as to the content of customary law regarding the non
use of force from evidence of treaties concluded between the two states
and in particular the UN Charter and that both states accepted that the
rule against the use of force in the charter corresponds to customary
international law. The court then went on to consider if the same rule
existed in the opinio juris (legal opinion) of other states as confirmed by
practice. The court then ruled that there exists in customary
international law the opinion juris that the rule against the use of force
was binding on all states. The principle of non use of force us now
regarded as a principle of customary international law. Evidence of this
is the general acceptance by states of the Article 2 (4) of the UN Charter
and General Assembly resolution 2625 all of which prohibit the use of
force. See 899 on self defence and non intervention.
The rule against the use of force admits of some exceptions. The court also
recognised that the right to individual and collective self-defence is one of
those exceptions. The right to self-defence has also crystallised into a rule of
customary international law.
The exercise of individual and collective self-defence requires that the state
exercising the right do so in response to an armed attack. Tie court defined
an armed attack as action by regular armed forces across an international
border, sending by or on behalf of a state armed groups, bands or
mercenaries which carry out acts of armed force in another state of such
gravity as to amount to an actual armed attack by regular forces. This
definition was also held to reflect customary international law. The court
went on to ad that armed attack would also include assistance to rebels in the
form of provisions of weapons, logistics or other support.
The court also found that there is no rule authorising the exercise of
collective self defence in customary international law in the absence of a
request by the state that regards itself the victim of an armed attack and the
absence of a declaration by such a state that it is the victim of an armed
attack.
The court went on to comment on the principle of non-intervention, which
provides that each sovereign state has a right to conduct its own affairs
without outside interference. The court noted that this was a rule of
customary international law. The principle forbids all states from intervening
directly o indirectly in the internal or external affairs of other states.
Examples in which states may not intervene are choice of economic political
social or cultural system. Every state has a right to choose freely in these
matters. Intervention could be through coercion, use of direct or indirect
force, indirect support of subversive activates within another state. Such acts
of intervention would be a breach of the principle of non-use of force.
Holding
The court held that the laying of mines in Nicaraguan Waters and attacks on
ports and oil installation in Nicaragua constituted a breach of the customary
international law principle of the non use of force.
The United States argued that its activities in Nicaragua were collective selfdefence after Nicaragua engaged in an armed attack against El Salvador,
Honduras and Costa Rica. The court held that the provision or arms to the
opposition in El Salvador did not constitute an armed attack on El Salvador
by Nicaragua and did not justify collective self-defence. The court also found
that there was little evidence that could impute cross border incursions into
Honduras and Costa Rica on Nicaragua. In the absence of proof of an armed
attack by Nicaragua on these countries, the US claim that its actions
constituted collective self-defence fell away.
Assistance to the contras by organising or encouraging the organisation if
irregular forces or armed bands for incursion into the territory of Nicaragua
and participation in civil strife in Nicaragua constituted a breach of the
customary international law principle of non-use of force. (Assistance to
rebels is indirect use of force)
Assistance by the provision of funds, training, logistical support and
intelligence and supply of weapons to the contras was in violation of the
customary international law principle of non-intervention and not a violation
of the prohibition against the use of force.
Collective self-defence is only allowable in the occasion of an armed attack.
An intervention of a lesser type as described above would not justify action
by a third state in the defence of the state that considers that it has been a
victim of an intervention. The US could not justify its conduct as collective
self-defence.
2.
SELF DEFENCE
We have already defined self-defence as the individual or collective use of
force in response to an armed attack. International law required that the
exercise of self-defence meet two requirements – necessity and
proportionality. Necessity implies that no other course is available except the
immediate use of force to repel an attack; Proportionality required that the
measures taken be commensurate to the seriousness of the attack.
Self-defence must always be in response to an armed attack as stated in the
Nicaragua case. This can be a large-scale attack by one state upon another
(Falkland Island, Iraq/ Kuwait), Guerrilla activities (Nicaragua Case)
government or terrorist activities involving the nationals of another state
(Entebbe Incident) and terrorist activities on a stats own soil (9/11, subway
bombings London etc).
Where collective self-defence is exercised it must be after the state
concerned has declared it to be the victim of an armed attack and requested
the held of other states to repel the attack. (Nicaragua).
Article 51 makes the right of self-defence temporary. States may act only
until the Security Council acts. The security council may be crippled by a
veto and never act or take inadequate action in which case a state would be
entitled to act in self defence. A state must inform the SC of such action
taken before it proceeds.
In terms of article 51 of the UN charter, states have an inherent right to
individual or collective self-defence against an armed attack. Such right exits
until the Security Council takes measure necessary to maintain international
peace and security. Measures taken in the exercise of self-defence must be
reported to the Security Council immediately.
The Caroline Case
During the Canadian rebellion of 1837 against the British rule in Canada,
some Canadians launched attacks against the British relying on supplies
being provided by an American ship called the carline. The British seized the
ship at night whist it was moored to the shore. Two unarmed men were
aboard the sheep asleep. They burnt the ship and sent it over the Niagara
Falls killing two American citizens. The matter was discussed in diplomatic
correspondence between the United States and Britain.
The United states stated its position that Britain could not meet the
requirements of self defence at international law since they could not prove
there was a necessity to defend Canada’s shores that was immediate and
overwhelming that left no moment for deliberation. That discussion with the
sailors abode the Caroline would have been futile and that they could not
have waited for daylight. The result was the death of two men without
establishment of their guilt or innocence with respect to the rebellion. The
United Kingdom conceded that this was a principle of international law
binding on all stated.
Jurists are agreed that the Caroline case was the exercise of anticipatory selfdefence or pre-emptive self-defence to repel further attacks. This right was
believed to exist prior to 1945. Article 51 of the charter has since made this
sort of self-defence illegal.
The Falklands Island War
In April 1982, Argentina invaded the Falklands and claimed sovereignty
over them. The Security Council issued a resolution on the next day
declaring a breach of the peace and an immediate cessation of hostilities
and calling upon the partied to resolve the dispute peacefully. There
followed a diplomatic attempt to resolve the dispute. When this failed,
the British used military force to regain control over the Falklands citing
the inherent right to self-defence guaranteed by article 51 of the charter.
Oil Platforms Case
During the Iran Iraq war in 1987 – 1988, two American vessels were
damaged by a missile and a mine whilst sailing through the Persian
Gulf. In self-defence, America attacked Iranian oil platforms 3 or 4 days
after the incident.
Iran claimed a breach of America’s treaty obligations under a US Iran
Treaty of Amity. The court held that to succeed in its claim of self-
defence, the US had to prove that Iran had committed an armed attack
against the US. The US was unable to discharge this burden. The US
complained of a serried of attacks against its non-belligerent vessels in
Kuwaiti waters. None of the attacks by missiles, mines or gunboats could
be attributed to Iran as all the belligerent parties in the war were using
mines and missiles. The attacks on the oil platforms were held not to
have been made in response to an armed attack against the US by Iran.
The Entebbe Incident
An French plane headed to Tel aviv was hijacked in 1976 and flown to
Entebbe. From Entebbe, the hijackers demanded the release of 50
Palestinian terrorists imprisoned in various countries. A few days later,
Israel launched an operation at Entebbe to free the hostages resulting in
the death of the hijackers, some Ugandan and Israeli soldiers. Uganda
called for the condemnation of Israel’s actions. Israel maintained the
right to intervene by use of force or threat of force for the protection of
its nationals suffering injuries within the territory of another state.
Self defence against terrorism
Post 9/11 USA launched operation enduring freedom (7 October 2001)
against Afghanistan relying on the right of self defence to launch missile
attacks. The UK participated claiming the right to collective self defence.
The operation received massive support form the international community
and was almost universally accepted as the exercise of self defence. Only
Iran and Iraq disputed the legality of the operation. The Security Council on
14 November 2001 passed a resolution recognising the right to use self
defence against terrorist activities.
Jurists argue that this is a new interpretation of the right to self defence at
customary international law. For its purposes, an armed attack can include a
terrorist attack on a state by a non state actor. It also admitted of a preemptive attack. Both the US and the UK acted to prevent threat of attack
from the same source.
Perhaps the only restriction to this right is that it must be exercised with the
backing of the Security Council. Problems arise with proportionality and the
assertion that attacks and the extension of the attacks to other states in the socalled “axis of evil” which has since been discredited.
3.
HUMANITARIAN INTERVENTION
4.
CHAPTER VII ACTION
The United Nations maintains international peace and security through the
collective security system. This means that a wronged state does not seek
vengeance on its own but is protected by all. Similarly, a wrong doer is
punished by all.
Where there has been a threat of peace or breach of the peace in the
international community, the United Nations Security Council is empowered
to act under chapter VII. The Security Council must determine that there
exists a threat to the peace, a breach of peace or n act of aggression. (Art 39)
Once this determination has been made, the United Nations makes
recommendations or decisions to deal with the situation. The five permanent
members of the UN UK, US , Russia, France and China can veto such a
resolution. This has been the major cause of failure of the UN in maintaining
international peace and security.
Aggressive acts that would trigger action under Chapter VII include use of
weapons against the territory of another state, attacks by armed forces of one
state by another state including sending armed bands.
Examples of a resolutions involving breach of the peace Resolution 660, 661.
665 etc on the situation in Iraq and resolution 1441 on the situation in Iraq in
2002
The SC can act in terms article 40 of the Charter and order provisional
measures to stabilise the situation. These usually do not include the use of
force. It may also act in terms of article 41 ordering sanctions against the
offending state e.g. economic sanctions and severing diplomatic relatiosn.
Finaly, it may act according to article 42, and call for the use of force as may
be necessary to restore international peace and security.
Go through resolutions discussed in class.