Bagares Oxford Handbook Essay, Further Notes on Direct Effect, PhilJA Lecture

1. What is the Philippine textbook tradition on the teaching of the internalization of IL in

Philippine law?

In writing tendencies the author diverge in part from view of Professor Magallona, who
has characterized Philippine practice in the 2 provision as “dualist/”dualist tendency in
the Philippines practice of International law”:

● Section 21, Article 7 of the 1987 Charter: 'No treaty or international agreement
shall be valid and effective unless concurred in by at least two-thirds of all the
Members of the Senate'.
● Section 2, Article 2 of the 1987 Charter: “The Philippines renounces war as an
instrument of national policy, adopts the generally accepted principles of
international law as part of the law of the land and adheres to the policy of peace,
equality, justice, freedom, cooperation, and amity with all nations.”
Professor Magallona posits a 2-step process of the internalization of international law in
the domestic sphere through Incorporation clause and the treaty clause. Thus, he
distinguishes between 'objective international law' in the international sphere, and 'the
Philippine practice of international law' as internalized and made part of national law.

Incorporation clause → comprised of the power of judicial review by which courts

may determine the constitutionality of such generally accepted principles of inter-
national law.
Treaty clause → clause functioning as a gateway for international law through legislative
fiat, principally by Senate concurrence.

2. Why is this tradition inadequate to account for how IL actually is made part of
Philippine law?

It is because of the failure of the Supreme Court to properly distinguish between these
two spheres of international law-as well as between the function of the Incorporation
Clause and the Treaty Clause-has led to a 'crisis' in the law of treaties in jurisprudence,
as the Supreme Court has all too often confused between the nature of treaty
obligations that arising from generally accepted principles of international law referred to
in the Incorporation Clause," and the task of adjudication of a national court and that of
an international court or tribunal in relation to international legal questions.

3. What is the traditional definition of direct effect?

Direct effect may function as a powerful sword that courts can use to pierce the
boundary of the national legal order and protect individual rights where national
law falls short. But more often than not, the conditions of direct effect legitimize the
non-application of international law and shield the national legal order from
international law. International law provides support for both functions. But
above all, it defers the choice between these functions to national courts. The
practice of direct effect of international law exposes how national courts play a
critical political function at the intersection of legal orders.

4. How does Prof. Bagares professor to rework this traditional definition of direct effect?

Prof Bagares highlighted the limitations of the textbook approach of direct effect framed
only within monist-dualist devices embodied in the Incorporation and the Treaty Clauses
of the 1987 Philippine Constitution.

5. How does IL become a short or a shield?

Prof Bagares highlighted in his article the allegedly dualist Treaty Clause of the
Constitution itself and how it inaugurated a class of international obligations that
paradoxically exhibit monist tendencies or features. This paradox also has a dual aspect
to it, as such “quasi-monist” devices may sometimes also function both as a sword,
giving direct effect to international law, and simultaneously acting as a shield, raising
barriers to public or international accountability, pursuant to certain Philippine foreign
policy prerogatives. The said paradox originated in the difference made by Philippine
jurisprudence between international agreements (treaties) that are policy-making in
nature and those that merely carry out policy or pertain to details of national policy or to
matters that are temporary in nature (executive agreements).

6. What are the 12 modes of direct effect of IL, per Prof. Bagares? (be prepared at
recitation to give an example of each)

The author I identified five other modes of direct effect: (1) constitutionalization, (2)
statutorification, (3) judicial notice, (4) the Supreme Court’s exercise of rule-making
powers, and (5) direct effect in the State of Exception. There, I tracked the paradoxical
way in which the dualist treaty clause of the Philippine constitution may give birth to a
seemingly limitless number of ‘quasi-monist’ international agreements. In addition, the
author discusses five other categories of direct effect. The first three of these
additional modes of direct effect were brought to light in my research on how the
resolutions of the United Nations Security Council, issued under its so-called Chapter
VII Powers, are implemented in Philippine jurisdiction. These additional modes are
direct effect through (6) executive orders; (7) administrative resolutions; and even (8)
press statements. The ninth and tenth additional modes of direct effect are those by (9)
presidential ratification and direct effect by (10) signature of a Philippine representative
on an ASEAN legal instrument in his present work the author brings to a dozen the
modes of direct effect or entry points of international law in contemporary Philippine
practice: (11) ratification of ASEAN legal instruments, and (12) the effect of a Philippine
Representative’s signature in these instruments.

Outcasting Essay, Hathaway and Shapiro and International Legal Order Essay,
Bagares

1. What is the modern state conception and how does it miscast/misunderstand the
role, place, and function of international law?

-According to the Modern State Conception, governments have legal systems in place.
only when they have the characteristic capabilities of a modern state, specifically, when
they have the exclusive right to use force within a territory and when they employ this
privilege to impose their laws. In the domestic setting, the monopoly is shared by
numerous interconnected bureaucratic entities including the police, militia, judicial
systems, and correctional facilities that use coercion and violence as a means of
enforcement. Therefore, according to the modern state conception, legislation is
enforced by such organisations through the threat and use of violence. This idea
naturally leads to scepticism about international law given the absence of these
bureaucratic organisations in international law. It is renowned for not having an army or
police force of its own. Nothing approaching the modern state's enforcement
infrastructure exists or is expected to exist for the near future, notwithstanding the
recent emergence of global prosecution agencies and prisons. International law cannot
be law if it can only be enforced by the threat and use of physical force by a complex
network of bureaucratic organisations.

We contend that the idea of law that underlies this criticism of international law is
significantly problematic due to its constrained view of how regulations must be able to
alter behaviour in order to qualify as law. The Modern State Conception fails not just
because it maintains that laws only have an impact on behaviour when they are
implemented; more importantly, it fails because it adopts an overly limited definition of
law enforcement. The contemporary State Conception makes a mistake by holding that
only contemporary state-style enforcement of the law is acceptable. First, it insists that
only internal, or by the regime itself, enforcement of the law will make it effective.
2. What is outcasting? How does the notion demonstrate the reality of enforcement of
international law?

-outcasting is nonviolent and neutral as between internal and external enforcement.

There are two types of outcasting, Internalized and externalized. Externalized
Considering externalised exclusion as a kind of law enforcement aids in understanding
the conventional criticism of international law, which holds that it is not upheld and is
Consequently, it is both ineffective and untrue law—based on a circumscribed and
incorrect perception of law enforcement. The law does not always have to be enforced
with an iron hand; it may simply decline the request. the advantages of social
membership and cooperation. After, we will see that international law matters in the
manner that legal systems must matter if we expand our understanding of law
enforcement to include externalisation and outcasting rather than restricting it to
internalisation and violence. While, When a company's internal bureaucratic structures
result in Laws are enforced by the legal system without the threat or use of physical
force. Internal outcasting satisfies the internality requirement of the modern state
conception since it involves at least one secondary enforcement link directed at regime
officials. However, it does not call for or authorise the use of violence—rather, it forbids
officials of the system from using force to uphold the law. For instance, a minor
excommunication in traditional canon law meant excluding a person from Church
sacraments. By depriving the offender of the privileges of church membership
(outcasting), Church officials (internal to the Church) enforced this sentence. When a
regime imposes sanctions, internal outcasting is a legal term in international law. By
barring the state from participating in the treaty organisations, one can punish a state for
illegal behaviour.

3. Does the concept of outcasting work well with a parts-whole notion of an international
legal order critiqued in Bagares’s Dooyeweerdian approach? (see also the last two or
three pages (sections 7-8 of the Enkapsis essay discussing this point, below)
IMPORTANT!!

-Yes. When the agreement directly generates private castes, simple outcasting is
benefits, such as a deal that allows member states' airlines to fly over one another's
territory, a deal that gives diplomats legal protection, or a deal that enables each state to
extradite people suspected of committing crimes on the territory of the other.

But, Outcastings, however, is not always feasible or desirable. For instance, Outcasting
could cost outcasting states so much money that they won't participate voluntarily in it.
Simple outcasting will almost probably occur in those situations. to have no effect. The
external outcasting regime must be changed in order for it to a specific problem
provided by the legal environment in which it is used. operate or risk being irrelevant.
Each quality, whether permissible or required, Whether it is adjudicated or not, in-kind or
not, proportional or First parties alone, non-proportional, and third parties may all be
expected to react to specific underlying elements of the legal system.

4. Make a powerpoint presentation of Outcasting (the three groups can divide the task
among themselves and consolidate their output into one powerpoint that is good
enough for a 15-minute presentation. Make the final slide applying outcasting: how is it
being applied right now in relation to Chinese activities in the South China Sea? Each
group will appoint one person who will present the particular group’s 5-minute part of
the presentation).

Klabbers Chapter 1 and Higgins

1. What are the reasons why states comply with IL at all, per Klabbers?
According to Klabbers, states comply with international laws because of their
self-interest, reliance on reciprocity and promotion of good reputation, and globalization.

2. Should it matter what reasons states have for complying with IL, per Higgins, why or
why not?
No, it should not matter as it is given that states will have their own biases/
agenda as to what their driving force of compliance to international law is. What matters
most is that the states, in the process of fulfilling their own agendas, are compliant with
international laws.

3. What is Higgins’ response to the critical theorists’ critique of IL being indeterminate?

Higgins response to the critical theorists’ critique of IL being indeterminate is that
it those challenges are not unique to international law as they can also be found in
domestic legal systems. International Laws should be viewed as a dynamic and
evolving field that continues to be flexible in order to adapt to the issues and
circumstances.

4.What are the devices she says may be resorted to in case of ambiguity or
indeterminacy?
In case of ambiguity and indeterminacy, Higgins said that one should resort to the
international legal instrument or treaty in question, ordinary meaning of texts, consider overall
structure of the historical and political context of the dispute, understand the object and purpose,
use analogy, rely on the general principles of international law and decisions previously made by
the international courts.

5. What is her response to IL being a function of who holds power? Do you find it
persuasive? Why or why not?

Higgins’ response to IL being a function of who holds power is in the negative.

Although she recognizes that there may be a significant weight to the influence of the
powerful states, she believes that international law is not solely due to power but has
normative aspects where in the customary norms of one particular state are
acknowledged in the shaping of the decisions or judgment it is subjected to. Moreover,
international law relies heavily also on the consent and cooperation of various states.
Without which from even the smallest or less influential states, the international laws
wouldn’t have been conceived or recognized in the first place. Yes, we found it
persuasive in some degree. The power politics of the states may be a strong driving
force of the course of the changes in international law, however, it shouldn’t be only
attributed to that factor as there are others that the accepted laws are based on or are
attributed to.

Chapter 2, Klabbers
Bagares, ‘Enkapsis and the Development of Customary International Law’ in Theory,
Practice, and Interpretation of Customary International Law (Cambridge University
Press, 2022)

1. What are current questions raised about the two-factor element of CIL? What are
the implications to this orthodox doctrine of CIL of current discussions in the
International Law Commission?

Recent codification work of the ILC has devalued the two-factor formula of state
practice and opinio juris to identify CIL. This gives rise to the question of how to account
philosophically for this development. The author suggests that such account is properly
a question of the concept of law – one often elided, papered over, or otherwise not
recognised as a foundational issue, in the continuing debates about the nature of CIL.
The author have shown that a fruitful alternative approach to understanding CIL is the
Encyclopedia of the Science of Law developed by Herman Dooyeweerd. It distinguishes
the jural aspect from all other aspects of reality, accounting for the former’s internal
structure as it is interconnected with that of the fourteen other aspects, in ascending
(anticipatory and regulative) and descending (retrocipatory and constitutive) analogical
relations. Dooyeweerd’s approach examines the nature of the jural dimension through
three interrelated pillars.

2. What is inter-legality?

Dooyeweerd’s Encyclopedia offers an engaging framework for understanding ‘the

challenge of inter-legality,’ or the question of ‘the ways through which legal domains end
up overlapping due to the interconnection of substantive, material objects’. In
inter-legality, we are confronted with a ‘plurality of legalities’ even if embodied in a single
specimen of law. Here, ‘the law surfaces as the composite legal nature of the issue
under scrutiny’ demonstrating resilient and reflexive ‘material interconnectedness’
‘among functional fields’. Moreover, this composite question arises from ‘the
overlapping among regimes and orders’, which are also self-referential and coherent in
themselves.

3. What is the notion of enkapsis? What is its philosophical basis?

Societal structural principles rooted in the differentiated creational order ‘lie at the
basis of every formation of positive law and it is only these principles that make the
latter only possible’. In addition, his theory of entities also accounts for their
interrelationships. Here, what Dooyeweerd calls ‘enkapsis’ comes to the fore. These
interlacements are ‘free forms of positivisation’ owing to their ‘typical historical
foundation’ – or to their development located in the unfolding of the differentiation of
society. Enkapsis is the ‘complicated manner in which the simple entities are interlaced
with each other by the cosmic order of time and through which they are united, in part,
within complex structural totalities’
Enkapsis happens in the mutual intertwinement of differently qualified societal
spheres and relationships, which are ‘pheno-typical’ 61 forms. By this, he means that in
these relationships, the inner natures of the societal spheres are not at all obliterated by
their particular interlacements. There are different types of enkapsis that are entitary
and structural, such as the correlative and the unilateral. In a correlative enkapsis, two
structures presuppose each other, as in the case of interlacements between communal
and coordinational relationships. A variation of correlative enkapsis is territorial
enkapsis, where all differentiated societal structures are territorially bound to the state in
whole or in part.62 Moreover, in concrete expressions – of positivised – law or of formal
law proper, there is what may be called ‘legal’ enkapsis. In other words, positivised laws
found in the various spheres of competence are interlinked with one another in complex
ways.

4. How does enkapsis explain better inter-legality? CIL?

 Legal enkapsis may take place in the international realm between two different
genetic forms, or between different formal sources of law. An example is the already
well-known intersection between treaty law and CIL demonstrating a ‘duality of norms’.
It can be the case that a treaty may also embody principles long considered as binding
– those long standing principles of CIL

5. Discus one case/situation in which enkapsis was used to analyze CIL

s. There are different types of enkapsis that are entitary and structural, such as
the correlative and the unilateral. In a correlative enkapsis, two structures presuppose
each other, as in the case of interlacements between communal and coordinational
relationships. A variation of correlative enkapsis is territorial enkapsis, where all
differentiated societal structures are territorially bound to the state in whole or in part.
Moreover, in concrete expressions – of positivised – law or of formal law proper, there is
what may be called ‘legal’ enkapsis. In other words, positivised laws found in the
various spheres of competence are interlinked with one another in complex ways.

Chorzow Factory

1. Concepts: distinguish between Restitution v Reparation and their basis, requirements

-Restitution is the return the victim to the state they were in before to the severe or
egregious violations of international humanitarian law or international human rights law.
While, Reparation is that a State that commits an international wrongful act is required
to make full restitution for the harm it caused. An injury is sufficient for such
responsibility to arise rather than damage.The fundamental idea behind what
constitutes an illegal act is that reparation must, to the greatest extent feasible,
eliminate all negative effects and restore the circumstances that would have most likely
prevailed if the illegal act had not been performed.

2. When does the right to pay reparation arise?

-International law generally holds that every breach of an agreement between two
sovereign states results in a duty to provide restitution. In this case, the rule that a state
does an internationally unlawful act when its behavior consisting of an action or
omission is attributable to it under international law and results in a violation of one of its
international obligations has been upheld. Regardless of any requirements of
international law or any provisions of municipal law, it is international law that defines
what constitutes an internationally unlawful act. The idea of state property was also
examined by the court, and it was noted that in succession instances, the relevant
municipal legislation would be that of the previous state. The nature of the property in
question will be determined by that law, which will also determine where it will end up in
the event of a succession.

3. What is the source of international law identified in this case?

-The Charzow Factory case has improved how international law is seen to have
jurisdiction. The case highlights the need for greater harmonisation between domestic
and international law, but more crucially, it gave international jurists cause to reflect on
the idea of state responsibility and its many potential applications. Future laws, such as
the International Law Commission's Draught Articles on States' Responsibilities for
Internationally Wrongful Acts, Article 60 of the Vienna Convention of 1969, and Rule
150 of the 1949 Geneva Convention, reflect this case. The PCIJ continued its statement
about state responsibility by stating that "the essential principle contained in the actual
notion of an illegal act is that reparation, must, as far as is reasonably 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." This observation was
recently adopted by the International Law Commission at its 53rd Session in 2001, and
it has since been used as the legal basis for cases like the Genocide Convention case,
the Phosphates in Morocco case, the Corfu Channel case, and others. This case also
established the notions of state succession and state property.

South West Africa Case (2nd Phase), ICJ Reports, 1966; cf Bagares, Enkapsis, pp.
16-17)

1. What was the basis for intervention here by Ethiopia/Liberia?

The basis for intervention by Ethiopia and Liberia in this case was their claim that South
Africa, which had controlled South West Africa since World War I, was not administering
the territory in accordance with its obligations as the mandatory power under the
League of Nations (exploitation and racial discrimination).

2. How did the ICJ in the merits phase dispose of this claim of legal interest by the
applicants? What was the problem with such an approach taken by the ICJ? (Cf
discussion by Bagares on this point in the Enkapsis essay).
The ICJ disposed the claim of legal interest of the applicants by using the concept of the
“sacred trust of civilization.” The problem in such approach was that it cannot be just
merely a moral or humanitarian ideal but hs to have a legal form as well.

Barcelona Traction Case (Second Phase, 1970); cf Bagares, Enkapsis, pp. 17-19)

1. What is an erga omnes obligation? (Cf discussion by Bagares on this point in the
Enkapsis essay)

"Erga omnes" obligation refers to a legal obligation that a state owes to the international
community as a whole, rather than to a specific state or group of states.

Nicaragua v. US

1. Q: What were the sources of law invoked by Nicaragua here?

In this case Nicaragua invoked the following sources of law:
● Article 2 Paragraph 4 of United States Charter → Nicaragua contends that the
United States argument fails to take account of the fundamental distinction
between Article 2, paragraph 4, of the Charter which defines a legal obligation to
refrain from the threat or use of force, and Article 39, which establishes a
political process. The responsibility of the Security Council under Article 24 of the
Charter for the maintenance of international peace and security is "primary", not
exclusive
● Articles 20 and 21 of the Charter of the Organization of American States →
Nicaragua claims an obligation under Articles 20 and 21 of the Charter of the
Organization of American States.
● The United States pointed out that Nicaragua relies in its application on four
multilateral treaties → The Charter of the United Nations, the Charter of the
Organization of American States, the Montevideo Convention on Rights and
Duties of States of 26 December 1933, and the Havana Convention on the
Rights and Duties of States in the Event of Civil Strife of 20 February 1928.
● Customary International Law → Nicaragua in its Application asserts also that
the United States has "violated fundamental rules of general and customary
international law"

Q: On what basis did the ICJ find jurisdiction?

 As to the jurisdiction of the Court, the Application relied on declarations made by
the Parties accepting the compulsory jurisdiction of the Court under Article 36 of its
Statute. the Court hasjurisdiction under Article XXIV, paragraph 2, of a Treaty of
Friendship, Commerce and Navigation between the Parties signed at Managua on 21
January 1956.

2. Q: Why? Weren‟t there other sources of law invoked by Nicaragua as basis, such
as the UN Charter?

Although not primary invoked by Nicaragua, they did invoked other sources of
international law, including the UN Chapter such as the Non-Us of Force,
Non-intervention,and Self-defense.

3. Q: Didn’t the US eschew participation in the merits phase of the case on the
basis of their abrogation of the same treaty? If so, how could the ICJ still assume
jurisdiction over the US?

The Court does not consider that the Contadora process, whatever its merits,
can properly be regarded as a "regional arrangement7' for the purposes of Chapter
VI11 of the Charter of the United Nations. Furthermore, it is also important always to
bear in mind that al1 regional, bilateral, and even multilateral, arrangements that the
Parties to this case may have made, touching on the issue of settlement of disputes or
the jurisdiction of the International Court of Justice, must be made always subject to the
provisions of Article 103 of the Charter which reads as follows: "In the event of a conflict
between the obligations of the Members of the United Nations under the present
Charter and their obligations under any other international agreement, their obligations
under the present Charter shall prevail."

4. What acts by the US are being alleged here?

Nicaragua, in its application instituting proceedings asserts that the United States had
breached international law by:
● Violating the sovereignty of Nicaragua by:
○ armed attacks against Nicaragua by air, land and sea;
○ incursions into Nicaraguan territorial waters;aerial trespass into
Nicaraguan airspace;
● Efforts by direct and indirect means to coerce and intimidate the Government of
Nicaragua.
● Using force and the threat of force against Nicaragua.
intervening in the internal affairs of Nicaragua.
 ● Infringing upon the freedom of the high seas and interrupting peaceful maritime
commerce.
● Killing, wounding and kidnapping citizens of Nicaragua

5. Q: State A and State B are parties to a bilateral treaty. Provisions of the treaty are
also found in customary international law. Is there a distinction between these
two modalities of obligations?

-Even though they are unilateral acts, they form a series of bilateral agreements with
other States that accept the same obligation of compulsory jurisdiction, taking into
account the conditions, reservations, and time-limit stipulations. The principle of good
faith plays an important role in the establishment of this network of engagements that
constitutes the Optional- Clause system; the Court has emphasised the need in
international relations for respect for good faith and confidence in particularly
unambiguous terms, also in the Nuclear Tests cases….

6. Q: What does Klabbers say is the modern notion of CIL first developed in
Nicaragua?

Klabbers say that the modern notion of CIL is where the general and consistent
practices, the significance of opinio juris sive necessitatis, which means the belief or
opinion of states that they are legally obligated to behave in a certain way, the principle
that Jus cogen norms cannot be violated and the prohibition of aggression are being
recognized.

7. Q: how was armed attack defined in Nicaragua?

The factual allegations made against Nicaragua by the United States, even if
true, fa11 short of an "armed attack" within the meaning of Article 51. While that Article
requires that actions under it "must be immediately reported to the Security Council" -
and no such report has been made - it does not support the claim that the question of
the legitimacy of actions assertedly taken in self-defense is committed exclusively to
the Security Council. The argument of the United States as to the powers of the
Security Council and of the Court is an attempt to transfer municipal-law concepts of
separation of powers to the international plane, whereas these concepts are not
applicable to the relations among international institutions for the settlement of disputes.

8. Q: The coordinated attack on the World Trade Center and Pentagon during 9/11.
Would it qualify as an armed attack? Why or why not?
-No, it wouldn't be considered an armed assault. A state must use military force, either
directly or indirectly, in an armed attack (or any other kind of armed aggression),
according to the UN charter. While the 9/11 attacks did include the use of force and
were undoubtedly an act of aggression, they were carried out by terrorists rather than a
State. As a result, it is impossible to classify the 9/11 tragedy as an armed attack.

9. Q: What is the effective control test of state responsibility? How was this applied
in Nicaragua in relation to the attributability of the acts of the Contrast to the US?

Holding a State accountable exclusively for the deeds of a group over whom the
State had effective control is known as the "effective control test." Proof of the
directives, orders, or specific instances of State control over the in question acts is
necessary to demonstrate control over particular operations of a group.

This was applied in Nicaragua in such a way that the US has effective control
over the Contras.Thus, the rebel actions of the Contra are attributable to the US.

10. Q: With respect to the support given by the US to the rebels, what duty under IL
did it violate?
Nicaragua invokes a number of principles of customary and general international
law that, according to the Application, have been violated by the United States.
Nicaragua claims under principles of customary and general international law, simply
because such principles have been enshrined in the texts of the conventions relied
upon by Nicaragua. Principles such as those of the non-use of force, non-intervention,
respect for the independence and territorial integrity of States, and the freedom of
navigation, continue to be binding as part of customary international law, despite the
operation of provisions of conventional law in which they have been incorporated.

2007 Genocide Case

1. Q: Bosnia & Herzegovina argue that genocide is such a complex crime involving
so many specific acts that it requires a reexamination of the effective control test.
How did the Court address this?

-“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.”
to assess whether a person or organisation can be equated with a State organ even
though they do not have that status under internal legislation. First, in this context, it is
not necessary to demonstrate that the individuals who committed the alleged violations
of international law were in a general relationship of "complete dependence" on the
respondent State; rather, it must be demonstrated that they acted in accordance with
that State's instructions or under its "effective control." The Court, on the other hand,
believes that the specific characteristics of genocide do not justify straying from the
threshold developed in the judgement involving Military and Paramilitary Activities in
and against Nicaragua.

2. Q: B & H further argue that the ruling has been superseded by the Tadic case,
which applied the “over-all control test.” What is meant by the over-all control test
(as opposed to the effective control test ) and how did the Court treat this
argument?

The over-all control test is used to determine whether a state had effective
control over the actions of the armed forces,including genocide, to the humanity. The
court considered the Tadic case but didn’t apply it to the case at bar since they focused
mainly on the specific circumstances related to genocide during the Bosnian War and the
question of whether Serbia and Montenegro could be held responsible for acts of genocide.

3. Q: Isn’t it illogical to hold that the over-all control test is applicable to the task of
determining whether a conflict has been internationalized but not to the task of
determining whether a state is responsible for the acts of certain non-state
organs involved in that same international armed conflict?

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
 4. Q: And was there evidence of this?

-The major disadvantage of the "overall control" test is that it expands the scope of
State responsibility well beyond the fundamental tenet of the law of international
responsibility, which states that a State is only accountable for its own conduct and the
conduct of individuals acting, on whatever basis, on its behalf. This holds true for
actions taken by its official organs as well as those taken by individuals or entities that
are not legally acknowledged as official organs under internal law but must still be
equated with State organs because of their utter dependence on the State. In this
aspect, the "overall control" test is inappropriate because it pushes the required link
between a State's internal behaviour and its international responsibilities too far, nearly
to the breaking point.

5. Q: Didn’t Serbia Montenegro provide weapons to the Scorpion units?

Yes, Serbia Montenegro provided weapons to the Scorpion units.

6. Q: what about the responsibility of S & M in regard to other acts penalized by the
Genocide Convention? Paras. (b) to (e)?
● It is clear from an examination of the facts of the case that subparagraphs (b)
and (c) of Article III are irrelevant in the present case. Ithas not been proved that
organs of the FRY, or persons acting on the instructions or under the effective
control of that State, committed acts that could be characterized as “[c]onspiracy
to commit genocide”(Art. III, para. (b)), or as “[d]irect and public incitement to
commit genocide” (Art. III, para. (c)), if one considers, as is appropriate, only the
events in Srebrenica. As regards paragraph (b), what was said above regarding
the attribution to the Respondent of acts of genocide, namely that the massacres
were perpetrated by persons and groups of persons (the VRS in particular) who
did not have the character of organs of the Respondent, and did not act on the
instructions or under the effective control of the Respondent, is sufficient to
exclude the latter’s responsibility in this regard. As regards subparagraph (c),
none of the information brought to the attention of the Court is sufficient to
establish that organs of the Respondent, or persons acting on its instructions or
under its effective control, directly and publicly incited the commission of the
genocide in Srebrenica; nor is it proven, for that matter, that such organs or
persons incited the commission of acts of genocide anywhere else on the
territory of Bosnia and Herzegovina. In this respect, the Court must only accept
precise and incontrovertible evidence, of which there is clearly none.

7. Q: What about complicity?

-First, it is important to distinguish the question of "complicity" from the one of whether
the Srebrenica genocide perpetrators followed orders from, were directed by, or were
effectively under the authority of the FRY's organs—a topic that has already been
examined and answered in the negative. It is true that in some national systems of
criminal law, giving someone else instructions or directions to commit a crime is seen as
an indication of cooperation in the crime. However, if it were proven that a genocidal act
had been carried out at the behest or instigation of a State, the necessary conclusion
would be that the genocide was attributable to the State, which would be directly
responsible for it, in accordance with the rule mentioned above (paragraph 398), and no
question of complicity would arise. However, as was already mentioned, it is not the
case in this instance. The providing of means to permit or facilitate the commission of
the crime is unquestionably included in "complicity" as defined by Article III, paragraph
(e), of the Convention; as a result, the Court must concentrate on this issue. In this
regard, it is important to note that, despite the fact that "complicity" as a concept does
not exist in the current terminology of the law of international responsibility, it is
comparable to a category found among the customary rules that make up the law of
State responsibility: the "aid or assistance" provided by one State for the commission of
a wrong by another State.

8. Q: How is this obligation described by the Court?

The court described the obligation of complicity in genocide as having the

knowledge of the genocidal acts, preventing, and punishing those being committed on
the part of the involved state.

9. Q: What is the source of this obligation?

The Court now turns to set out that, 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. 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.”

10. Q: How is this obligation breached?

-Yes, because Serbia and Montenegro have violated and continue to violate their
obligations under the Convention on the Prevention and Punishment of the Crime of
Genocide by failing and failing to punish acts of genocide or any other act prohibited by
the Convention, and by failing and failing to transfer individuals accused of genocide or
any other act prohibited by the Convention to the International Criminal Court.

11. Q: How is this breach of an obligation different from complicity?

This breach of obligation is different from complicity because Serbia and

Montenegro because although they failed to prevent and punish the genocidal acts
done, there are no concrete evidence that they deliberately promote and provided
assistance to the conduct of such.

12. Q: How was the failure of the FRY to prevent genocide established?

The FRY leadership, and President Miloševicl, were fully aware of the climate of
deep-seated hatred which reigned between the Bosnian Serbs and the Muslims in the
Srebrenica region. The court noted that 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

13. Q: What is the obligation to punish genocide?

-Article I of the Convention provided the basis for the dual commitment, namely:

"The Contracting Parties confirm that genocide, whether committed during peacetime or
a time of war, is a crime under international law which they undertake to prevent and to
punish."
A treaty must be construed in good faith in line with the usual meaning that should be
assigned to its words in light of both its object and purpose.

14. Q: How was this failure established?

The failure was established by showing that they have knowledge on the
genocidal acts and had control over the Bosnian Serb military and political arms. Their
manifest non-cooperation to international efforts was also invoked.

Bagares Case Note on Causality:

1. Q: What is the problem with the model of causality deployed by the ICJ here? Q:
What is the alternative proposed in the essay?

The ICJ employed an unrealistic – if it is not inappropriate – test of causality to

determine reparations for a State’s failure to perform the obligation to prevent and
punish genocide. Moreover, the test does not provide a set of criteria for determining
causality. A better approach that avoids an ‘unsatisfactory satisfaction’ is suggested in
the Corfu Channel case, which proffers an alternative model based on aggravated
responsibility.

Case Concerning the Frontier Dispute (Burkina Faso/Republic of Mali), ICJ Judgment,
22 December 1986, ¶20 (cf: Statement of the Kenyan Ambassador on Russian
annexation of Ukraine)

1. What is uti possedetis juris? Identify it as a source of IL. How was it applied in the
case?
-A rule of customary international law known as uti possidetis juris (UPJ) protects the
borders of colonies that are becoming States. UPJ was first used to define the borders
of decolonized regions in Latin America, but it is now often used, especially in Africa.

In the judgement it issued on December 22nd, 1986, the Chamber started by

determining the origin of the rights that the Parties were claiming. It was stated that in
that situation, the principles of uti possidetis juris, which gives legal title priority over
effective possession as a basis for sovereignty and whose main goal is to ensure
respect for the territorial boundaries that were in place at the time independence was
achieved, and the principle of the intangibility of frontiers inherited from colonisation
should be applied. The Chamber stated that the application of the uti possidetis juris
principle caused those boundaries, which were merely delimitations between various
administrative divisions or colonies all under the same sovereign, to be transformed into
international frontiers, as in the present instance.

Additionally, it stated that equity infra legem, or that type of equity that serves as a
technique of interpreting the law and is grounded in the law, would be taken into
consideration. Maps, "colonial effectivités," or, in other words, the actions of the
administrative authorities as evidence of the effective exercise of territorial jurisdiction in
the region during the colonial period, were some of the additional types of evidence that
the Parties cited to support their arguments. The Chamber determined the direction of
the boundary between the Parties in the disputed territory after taking into account
those various types of evidence. The Chamber also used the occasion to emphasise
that its authority was unaffected by the tripoint of Niger, Mali, and Burkina Faso simply
because the frontier's endpoint was on the territory of a third State that was not a party
to the proceedings. It further emphasised that the application of Article 59 of the Statute
of the Court in any case protected Niger's rights.

2. Bagares: against cynical international law: discuss the main point of the short
essay, relating uti possedetis juris to the situation in Ukraine.

Uti possidetis juris is a principle of international law that deals with the
preservation of colonial boundaries at the time of a state's independence. The
application of such to conflicts can be complex, and interpretations may vary. The
application of uti possidetis juris serve as a basis for negotiations and dispute
resolution in the context of the Ukraine-Russia conflict, encouraging parties to respect
the borders as they existed at the time of Ukraine's independence. In the allegations
mentioned in the case, it is somehow inferred that international law may be manipulated
or exploited by states to serve their own interests.

Damnum emergens
-Damnum appears. Definition: costs incurred as a result of the wrongdoing - "out
of. "pocket expenses"

Lucrum cessans
-the interest or damages awarded for losing profits that may have been made
reasonably expected or for losing use of property.

restitutio in integrum
 -The phrase is frequently used to describe the contractual remedy of rescission,
which aims to put the parties back in the same situation as if the contract had never
existed.