Public International Law and Legal Systems
Week 3: Enforcement of International Law Rules
Prof. Peter Münch, Dr. iur.
mchp@zhaw.ch
Wrapping up the
Legal World Map
Introduction –
Overview Basics
Legal
Framework of
World Politics
1
Common Law
and Civil Law
Systems
14
13
Roman Roots of
Western Law
Talmudic and
Islamic Law (II)
3
Semester
12
4
Program
11
10
Talmudic and
Islamic Law (I)
Enforcement of
International Law
Rules
2
5
Law of the Sea
and the Outer
Space
International
Trade Law
6
9
Chinese Legal
Tradition
8
Indian Legal
Tradition
7
Cross-cultural
Comparative
Law
International
Human Rights
Law
Some questions to start with
 Why are reservations only an issue for multilateral treaties –
and not for bilateral ones?
 Why is "self-help" (through counter-measures) more easily
acceptable in international law than in national law?
 Why is the Permanent Court of Arbitration (PCA), which is
operating in the Hague since 1902, not a real court?
 What specific meaning has the term "compromis" in the
context of international arbitration and international judicial
dispute settlement?
Week 3: Program
 Step 1: Establishing the applicable international law rules
 Reservations to treaties – and how they can complicate enforcement
 Treaty law vs. customary international law
 Step 2: Dealing with disputes
 Enforcement mechanisms (overview)
 Counter-measures
 International arbitration vs. international judicial dispute settlement
 Discussing cases
Reservations – Definition
Article 2 VCLT
1. For the purposes of the present Convention:
[…]
d) ″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
the State.
Reservations purport to
change the legal effect
of a treaty; they have to
be distinguished from
mere ″declarations″ or
″interpretative statements″.
Treaty-making process
Treaty
negotiations
(international)
Signing
Makes the
state a
signatory
of the treaty.
Ratification
process
(national)
Treaty not
yet binding
Ratification
Implementation and
application
Makes the
state a
party
to the treaty.
Treaty
in force
Option: reservations
Termination
Why reservations matter
 Reservations are only an issue for multilateral treaties, not for
bilateral treaties, because a ″reservation″ made by a state while
ratifying a bilateral treaty has simply the effect of a counter-offer
(consequence: back to the start of new negotiations).
 But for multilaterial treaties, reservations can make enforcement
complicated, since a country’s obligations under a treaty might run
only so far as its reservations.
Therefore, check not only the text of the treaty but also the reservations to it – to find out to which extent its provisions are binding for
the state in question.
GENOCIDE CONVENTION Case: issue
 The Genocide Convention was
adopted by the U.N. General
Assembly on December 9, 1948.
 When ratifying the Convention,
a number of states formulated
reservations.
 The question arose: Are such
reservations acceptable? Or does
a reservation invalidate the
ratification?
 The U.N. General Assembly
requested an advisory opinion
from the ICJ on that question.
GENOCIDE CONVENTION Case: background
Should ratifications with reservations count toward the 20 instruments
of ratification required for the entry into force of the Convention?
GENOCIDE CONVENTION Case: ICJ Advisory Opinion
″The Genocide Convention was […] intended […] to be definitely universal in scope. […]
The high ideals which inspired the Convention provide […] the foundation and measure
of all its provisions. […] The object and purpose of the Genocide Convention imply that it
was the intention […] that as many States as possible should participate. The complete
exclusion from the Convention of one or more States would not only restrict the scope of
its application, but would detract from the authority of the moral and humanitarian
principles which are its basis. It is inconceivable that the contracting parties readily
contemplated that an objection to a minor reservation should produce such a result. But
even less could the contracting parties have intended to sacrifice the very object of the
Convention in favour of a vain desire to secure as many participants as possible. The
object and the purpose of the Convention thus limit both the freedom of making
reservations and that of objecting to them. It follows that it is the compatibility of a
reservation with the object and purpose of the Convention that must furnish the
criterion for the attitude of a State making the reservation on accession as well as for the
appraisal by a State in objecting to the reservation.″
(ICJ, Genocide Convention Case, Advisory Opinion of May 28th, 1951)
Reservations – Principles stated in the VCLT
Article 19 VCLT
A State may, when signing, ratifying, accepting, approving or acceding to a treaty, formulate a reservation, unless:
a) the reservation is prohibited by the treaty;
⇒ ″package deal ″
b) the treaty provides that only specified reservations, which do not include the reservation in question, may be made; or
⇒ specified ″optingout ″ clauses
c) in cases not falling under subparagraphs (a)
and (b), the reservation is incompatible with
the object and the purpuse of the treaty.
This is the ″default rule″
in today’s treaty law.
How the rules on reservations developed
Starting point: Reservations were
considered to be acceptable only if all
the other parties to the treaty agreed
(up to the middle of the 20th century).
ICJ: Genocide
Convention case
(advisory opinion)
(1951)
Traditional view:
Reservations are generally not acceptable; any modification of the treaty needs
to be accepted by all other parties.
Modern approach:
Reservations are acceptable as long as
they are compatible with the object and the
purpose of the treaty (art. 19 para. c VCLT).
⇒ Focus: integrity of the treaty
⇒ Focus: universality of the treaty
This is still the relevant principle for so-called
″package deals″ (Art. 19 para. a VCLT), e.g.,
the UN Convention on the Law of the Sea.
This is the ″default rule″ in today’s treaty law,
applying e.g. to treaties like the International
Covenant on Civil and Political Rights (ICCPR)).
VCLT: rules on
reservations in
articles 19 / 20
(1969)
How reservations operate
State
X
reservation
to Provision A
State
Y
State
Treaty in force (entire text)
Z
Remember: Reservations operate on the basis of reciprocity.
Treaty law vs. customary international law
Treaties
Customary int’l law
Definition: VCLT Art. 2(1)(a)
ICJ Statute Art. 38(1)(b)
Bilateral treaties
Multilateral treaties
Requirements:
(two parties)
(three or more parties)
Self-executing
treaties
Non-self-executing
treaties
 "general practice"
(widespread and
consistent state practice)
(directly applicable,
no need for
implementation)
(national law
implementation
needed)
 "accepted as law"
(opinio juris, i.e.
sense of legal obligation)
Week 3: Program
 Step 1: Establishing the applicable international law rules
 Reservations to treaties – and how they can complicate enforcement
 Treaty law vs. customary international law
 Step 2: Dealing with disputes
 Enforcement mechanisms (overview)
 Counter-measures
 International arbitration vs. international judicial dispute settlement
 Discussing cases
Overview
Countermeasures
(ways of reacting to offenses
and dealing with disputes)
Enforcement
by national
courts
Negotation /
conciliation
Enforcement
mechanisms
International
judicial
dispute
settlement
Internatioal
arbitration
Overview
Countermeasures
(ways of reacting to offenses
and dealing with disputes)
Enforcement
by national
courts
Negotation /
conciliation
Enforcement
mechanisms
International
judicial
dispute
settlement
Internatioal
arbitration
Categories of counter-measures
forcible
counter-measures
reprisals
non-forcible
retorsions
Forceable counter-measures
In classical public international
law, the option of going to war – in
response to an offense by another
state – was considered an aspect
of the sovereignty of the nationstate.
Until 1945 at least, forcible
counter-measures (involving
recourse to armed conflict)
were a common occurence.
forcible
counter-measures
reprisals
non-forcible
Scene from the Trojan War
(Copper engraving, reproducing a
drawing by John Flaxman, 1793)
Source: commons.wikimedia.org.
retorsions
Prohibition of force in Article 2 of the UN Charter
UN Charter, Article 2 para. 3 and 4
3. All Members shall settle their international disputes by peaceful means in
such a manner that international peace
and security, and justice, are not
endangered.
4. 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 […].
forcible
counter-measures
reprisals
non-forcible
retorsions
Retorsions
 A retorsion is an unfriendly and harmful,
but legal, act made by a state in retaliation
for an injury by another state.
 In contrast to a reprisal, a retorsion is an
act that remains always in conformity
with international law (which makes
retorsions relatively uncontroversial).
Examples:

Withdrawal of diplomats and
embassy staff

Expulsion of diplomats

Termination of aid

Economic sanctions
forcible
counter-measures
reprisals
non-forcible
retorsions
Airplane bringing home 35 Russian
diplomats after they were expelled by U.S.
president Obama in December 2016.
Reprisals
 A reprisal is a more ″muscular″ retaliation: It is illegal if taken alone, but becomes legitimate when it constitutes a
proportional response to another state’s
illegal conduct.
 In contrast to retorsions, reprisals are
deliberate violations of international
law aimed at punishing another state
(therefore, they are much more
controversial).
forcible
counter-measures
 Reprisals are only legitimate if they are
proportional to the earlier wrongful
conduct of the other state.
″Without some kind of threat to take action
(even if it is illegal action) in the face of
unlawful conduct, then many nations will
flout international law. […] [W]e need a bit
of punch and counter-punch in order to
persuade recalcitrant nations to respect
their duties under custom and treaties.″
DAVID J. BEDERMAN
reprisals
non-forcible
retorsions
AIR SERVICES AGREEMENT Case
AIR SERVICES AGREEMENT Case
 Dispute that arose in connection with a 1946 bilateral Air
Services Agreement between the US and France.
 Under the Agreement, Pan Am had the right to operate a
route between Paris and London.
 Pan Am planned a ″change of gauge″ (substitution of a
747 aircraft with a smaller craft).
 The French government refused – and finally compelled
Pan Am to cease its flights to Paris.
 The U.S. government proposed arbitration – the French
government refused.
 Finally, the U.S. government took a reprisal, suspending
Air France’s Paris-Los Angeles route, whereupon
France accepted arbitration.
Unilateral self-help measures – Risks involved
″It goes without saying that recourse to counter-measures involves the
great risk of giving rise, in turn, to a further reaction, thereby causing an
escalation which will lead to a worsening of the conflict. Countermeasures therefore […] should be used with a spirit of great moderation
and be accompanied by a genuine effort at resolving the dispute. But the
Arbitral Tribunal does not believe that it is possble, in the present state of
international relations, to lay down a rule prohibiting the use of countermeasures […].″
(Arbitral Award, Air Services Agreement Case, France v. US, 1978)
Overview
Countermeasures
(ways of reacting to offenses
and dealing with disputes)
Enforcement
by national
courts
Negotation /
conciliation
Enforcement
mechanisms
International
judicial
dispute
settlement
Internatioal
arbitration
International arbitration – Three steps in its development
Jay Treaty
between the UK
and the US
Alabama Claims
Arbitration
(US v. UK)
Permanent Court
of Arbitration
(PCA)
(1794)
(1872)
(1900 / 1902)
First treaty with an arbitration clause, introducing arbitration as a
means of dispute resolution in international law.
Famous case illustrating
the efficiency of arbitration as a means of
dispute resolution in
international law.
Institutionalization of
arbitration as a means of
dispute resolution in
international law.
The ALABAMA CLAIMS Arbitration
 Context: American Civil War (186165).
 CSS Alabama: One of several ships
constructed in British shipyards and
delivered to the Confederate States.
Jay
Alabama
Permanent
Treaty
Claims
Court of
Arbitration
Arbitration
 Claims: The US claimed damages,
arguing that, by allowing these ships to
be delivered to the Confederate States,
Britain had violated neutrality in the
American Civil War.
 Arbitral tribunal: The parties agreed
to submit the dispute to arbitration (five
arbitrators from UK, US, I, CH, Brazil).
 Arbitral award: UK to pay a USD 15
million compensation – which it did.
Painting of the CSS Alabama (Source: Wikipedia)
Permanent Court of Arbitration
 Established in 1900 as a result of the
1899 Hague Peace Conference
(operating since 1902).
 Not a real court, but rather an institution (a ″machinery″) aimed at
enabling arbitral tribunals to be set up
and facilitating their work.
Jay
Alabama
Permanent
Treaty
Claims
Court of
Arbitration
Arbitration
 Permanent Bureau, located in the
Peace Palace in The Hague, serving
as a court registry and a secretariat.
 Panel of jurists designated by the
member states from among whom the
arbitrators may be chosen when an
arbitral tribunal is set up.
Court of arbitration (Kishenganga case), source: pcacases.com
Overview
Countermeasures
(ways of reacting to offenses
and dealing with disputes)
Enforcement
by national
courts
Negotation /
conciliation
Enforcement
mechanisms
International
judicial
dispute
settlement
Internatioal
arbitration
Great Hall of Justice, Peace Palace,
The Hague, The Netherlands
Source: www.denhaag.nl
Establishment of the ″World Court″
League of Nations:
United Nations:
Permanent Court of International Justice (PCIJ)
International Court of
Justice (ICJ)
(1922 – 1946)
(1946 – … )
International Court of Justice – Function and composition (I)
Article 22 UN Charter
The International Court of Justice shall be the principal judicial organ of the United Nations.
It shall function in accordance with the annexed Statute, which is based upon the Statute of
the Permanent Court of International Justice and forms an integral part of the present
Charter.
Article 3 paragraph 1 ICJ Statute
The Court shall consist of fifteen members, no two of
whom may be nationals of the same state.
Article 4 paragraph 1 ICJ Statute
The members of the Court shall be elected by the
General Assembly and by the Security Council […].
Article 13 paragraph 1 ICJ Statute
The members of the Court shall be elected for nine
years and may be re-elected […].
Judges in the courtroom prior to the announcement of a verdict
in the case against Japanese whaling at the International Court
of Justice (ICJ), in The Hague, The Netherlands, on 31 March
2014. Photo: EPA/MARTIJN BEEKMAN. Source:
www.enca.org.
International Court of Justice – Function and composition (II)
Article 34 paragraph 1 ICJ Statute
Only states may be parties in cases before the Court.
No individuals
Art. 25 paragraph 1 ICJ Statute
The full Court shall sit except when it is expressly
provided otherwise in the present Statute.
Plenary sessions
Article 31 paragraphs 1 to 3 ICJ Statute
1. Judges of the nationality of each of the parties shall
retain their right to sit in the case before the Court.
2. If the Court includes upon the Bench a judge of the
nationality of one of the parties, any other party may
choose a person to sit as judge. […]
3. If the Court includes upon the Bench no judge of
the nationality of the parties, each of these parties
may proceed to choose a judge as provided in
paragraph 2 of this Article.
Full bench: 15 judges
+ 1 or 2 ad hoc judges
International Court of Justice – Judgments
Article 55 ICJ Statute
1. All questions shall be decided by a majority of the
judges present.
2. In the event of an equality of votes, the President
[…] shall have a casting vote.
Majority decisions
Art. 57 ICJ Statute
If the judgement does not represent in whole or in
part the unanimous opinion of the judges, any judge
shall be entitled to deliver a separate opinion.
Dissenting opinions
Art. 59 ICJ Statute
The decision of the Court have no binding force
except between the parties and in respect of that
particular case.
!
No binding
precedents
International Court of Justice – Jurisdiction
 In its contentious jurisdiction, the ICJ deals with disputes between states as
opposing litigants (on the basis of a "compromis").
Examples of judgments: NUCLEAR TEST Case (New Zealand v. France); NICARAGUA Case
(Nicaragua v. US); LAGRAND Case (Germany v. US)
 In its advisory jurisdiction, the ICJ acts on request of UN organs.
Examples of advisory opinions: GENOCIDE CONVENTION Case; WALL IN PALESTINE Case.
Visit the ICJ website:
www.icj-cij.org
Interested in knowing more?
Try out the brilliant mooc you find on MOODLE.
Week 3: Program
 Step 1: Establishing the applicable international law rules
 Reservations to treaties – and how they can complicate enforcement
 Treaty law vs. customary international law
 Step 2: Dealing with disputes
 Enforcement mechanisms (overview)
 Counter-measures
 International arbitration vs. international judicial dispute settlement
 Discussing cases
Let’s try to answer these questions
 Why are reservations only an issue for multilateral treaties –
and not for bilateral treaties?
 Why is "self-help" (through counter-measures) more easily
acceptable in international law than in national law?
 Why is the Permanent Court of Arbitration (PCA), which is
operating in the Hague since 1902, not a real court?
 What specific meaning has the term "compromis" in the
context of international arbitration and international judicial
dispute settlement?