THE LEAGUE OF NATIONS

 Considered the first true international organization.

 Brainchild of President Woodrow Wilson if USA.
 Founded on 10 January, 1920
 It was established as an annex to the Treaty of Versailles following the end of World War
I.
 Its primary objectives were to prevent future was through collective security,
disarmament and negotiations/arbitration as opposed to armed conflict.
 Membership––had 42 member states.
 Ironically, the USA never joined the LON which some scholars argued affected its
effective operation.
 Structurally, its organs were the Assembly which had representation from member states,
the Council which had ex officio members (i.e. major powers including Japan, Italy,
Britain and France) and rotating members and the Permanent Secretariat which dealt with
the administration of the League.
 Operated under the principle of collective security––an attack on one member states was
considered an attack on all its members

ACHIEVEMENTS

 Successfully facilitated arbitration proceedings in the Aaland Islands dispute between

Sweden and Finland in 1921. It was resolved that the Islands belonged to Sweden and the
zone was demilitarized to prevent further armed tension.
 Successfully resolved a dispute between Greece v Bulgaria dispute of 1925.
 It followed a shoot-out between Greek and Bulgarian soldiers at the border between the
two states.
 Greece retaliated by invading Bulgaria. The League reacted by organizing an arbitration
and resulted in a ceasefire and ordered Greece to pay £45,000 as damages.
 At the economic front, the League facilitated international economic collaboration
 Played a significant role in the eradication of slavery and forced labour

FAILURES

 Most notable, was failure to prevent the WWII––Nazi Germany, Fascist Italy and
Japanese Militarism
 Implementation of collective security principle failed due to the league’s lack of military
power––relied on member states to enforce decisions.
 Member states were concerned with their own national interests which made enforcement
efforts futile. For instance, Italy invaded Ethiopia in 1935, the League imposed sanctions
on Italy but member states desisted from imposing the sanctions
 Its failure was compounded by lack of representation from economic and military giants
such as the US...0882162362
 The exclusion of Germany and the USSR undermined its global influence and legitimacy.

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 Failure to prevent the Japanese invasion of Manchuria in 1931, Italy’s invasion of
Ethiopia and Hitler’s invasion of the Rhineland in 1936.
 Failure to prevent the outbreak of the WWII eventually led to is disintegration in 1946. It
was eventually succeeded by the United Nations Organisation.

THE UNITED NATIONS

 Established on October 24, 1945
 Following the LON’s failure
 Purpose and objectives stated under Article 1 of the Charter
 Article 2 of the Charter places obligations on member states in executing the duties and
obligations contained in Article 1 of the Charter.
 A key case which emphasises on the need to adhere to the tenets of the Article 2 of the
Charter is Nicaragua v USA
 In its judgement, the ICJ pronounced that the USA flouted the principles enriched in
Article 2(4) of the UN Charter
 Other cases: Armed Activities on the Territory on the Congo (DRC v Uganda) 2005
 Armed Activities on the Territory of the Congo, the Democratic Republic of Congo v
Rwanda, Judgment, Jurisdiction and Admissibility [2006]

MEMBERSHIP

 Initially consisted of 51 member states including major allied powers such as USSR,
Britain, USA and China.
 Currently, it has over 190 members

ADMISSION

 Outlined in Chapter II of the Charter

 Article 4 outlines the procedure for admission into UN membership

ORGANS

 Has 6 main principal organs

Brief description

Its duties and responsibilities

Distinction between the GA and the security council––the interface

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THE UN SECURITY COUNCIL AND THE MAINTENANCE OF INTERNATIONAL
PEACE AND SECURITY

Read commentaries for the UN charter primarily than PIL books––e.g. Goodrich and
Hambro

 The maintenance of international peace and security is first/primary purpose of the UN.
Article 1(1)
 ……….
 The peace to be maintained is “international peace”.
 This excludes internal conflicts and/or civil wars [also see article 2(7)]
 The maintenance of international peace and security, is the first/primary purpose of the
UN.

Article 1 (1) of the UN charter is crafted in the following terms:

"To maintain international peace and security, and to that end: to take effective collective
measures for the prevention and removal of threats to the peace, and for the suppression
of acts of aggression or other breaches of the peace and to bring about by peaceful means,
and in conformity with the principles of justice and international law, adjustment or
settlement of International disputes or situations which might lead to a breach of the
peace."

 None of the other purposes of the organization can be realized without peace and security
(Goodrich and Hambro).

THE UN SECURITY COUNCIL AND THE MAINTENANCE OF INTERNATIONAL

PEACE AND SECURITY (CONT

 The peace to be maintained is "International peace". This excludes internal conflicts

and/or civil wars. [also see article 2 (7)]
 The UN can only intervene Incidentally and on account of International Implications.
 Formal peace alone is not sufficient. There must also be a sense of security
E.g. armed peace with fear of war does not suffice.
The charter envisages two types of scenarios with respect to the maintenance of peace
and security:
 1. A situation which, in its current state is not a threat to international peace and security
but has the potential of escalating into a threat if it was to continue uninhibited [Article 33
(1)) Such situations are covered by Chapter VI of the Charter (pacific settlement of
disputes).
 There are two kinds of disputes––one which in its current state, are not a threat to
international peace and security––such as the questions
 2. Actual threats to international peace and security and acts of aggression [see article [see
article 39].
 Such threats require the Security Council to take enforcement measures.

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  These situations are covered by Chapter VII of the UN charter
 A construction of article 1 (1) of the UN Charter
 The 1st part of article 1 (1) (effective collective measures) of the charter establishes
the principle of collective security. The detailed implementation of this principle is
covered under chapter VII of the charter.
 The 2nd limb of article 1 (1) ("peaceful means") of the charter provides for the
pacific/peaceful settlement of disputes (e.g. arbitration, negotiation, mediation,
conciliation etc.)
 The detailed implementation of these principles is contained in chapters VI and XIV of
the charter.
 The 3rd part (in conformity with the principles of Justice and International law) was
inserted to provide a safeguard against the settlement of international disputes on the
basis of political expediency [L. M. Goodrich].
 It was also inserted to protect the rights of smaller states.

The Security Council's Role in the Maintenance of International Peace and Security

 The primary responsibility of the UN to maintain international peace and security

primarily lies within the security council (See article 24 of the UN charter):
"In order to ensure prompt and effective action by the United Nations, Its Members
confer on the Security Council primary responsibility for the maintenance of
international peace and security, and agree that in carrying out its duties under this
responsibility the Security Council acts on their behalf."
 Article 25 of the charter is not limited to enforcement actions under Chapter VII of the
charter, It applies decisions of the Security Council adopted in accordance with the
charter.

Legal Consequences for States of the Continued Presence of South Africa In Namibia (South
West Africa) notwithstanding Security Council Resolution 276 (1970) [1971] IC Rep. 16

"It has been contended that Article 25 of the Charter applies only to enforcement
measures adopted under Chapter VII of the Charter. It is not possible to find in the
Charter any support for this view. Article 25 is not confined to its decisions in regard to
enforcement action but applies to the “decisions of the Security Council” adopted in
accordance with the Charter”

Pacific/Peaceful Settlement of Disputes

 The UN Charter makes provisions for the peaceful settlement of disputes. Article 33(1) of
the UN Charter provides as follows:
“The parties to any dispute, the continuance of which, is likely to endanger the
maintenance of peace and security, shall, first of all, seek a solution by negotiation,
enquiry, conciliation, arbitration, judicial settlement, resort to regional agencies or
arrangements, or other peaceful means of their choice.”

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 The SC has the power to call upon disputing parties to settle the conflict through the
aforementioned peaceful means [article 33 (2)]
 The Security Council has power to investigate any dispute, or any situation which might
lead to international friction or give rise to dispute, to determine whether the continuance
of the dispute or situation is likely to endanger the maintenance of international peace and
security (article 34).
 Where parties to a dispute cannot resolve it by the various means outlined in article 33 of
the charter, they should refer it to the SC (article 37 (2).
 Where the council is convinced that the continuance of the dispute is likely to endanger
international peace and security, it may recommend not only procedures and adjustment
methods, but also such terms of settlement as it may consider appropriate [article 37 (2)].
 Once the council has determined the existence of a threat to, or breach of peace or act of
aggression, it may make decisions which are binding upon member states of the UN
under chapter VII, but up until that point it can under Chapter VI issue recommendations
only
 In practice the Council has applied all diplomatic techniques available in various
international disputes.
 For instance, it offered its good offices in the late 1940s with regard to the Dutch–
Indonesia dispute.
 It facilitated mediation attempts in disputes such as the Kashmir and Cyprus questions.
 In the Corfu Channel and Aegean Sea disputes the council recommended the parties to
turn to the International Court of Justice.
 During the first 2 years of operation the charter a total of 13 disputes were brought before
the Security Council:
 The Iranian Question
 The Indonesian Question

Action with Respect to Threats to the Peace, Breaches to the Peace and Acts of
Aggression (Chapter VII)

 This chapter applies to situations where an actual threat to peace and acts of aggression
have been identified. Article 39 provides as follows:

"The Security Council shall determine the existence of any threat to the peace, breach
of the peace, or act of aggression and shall make recommendations, or decide what
measures shall be taken in accordance with Articles 41 and 42, to maintain or restore
international peace and security."

 The charter does not define the term "aggression".

The SC has wide discretion in determining whether "a threat to peace, a breach of the
peace, or act of aggression has been committed
 Article 41 authorizes the SC to order economic sanctions against states that have violated
article 39.
 Article 42 permits it to order military action including “demonstrations, blockade and
other operations by air, sea or land forces of members of the UN.”

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 Even though the charter does not specifically grant the SC the authority to initiate
economic sanctions/military intervention to protect human rights in crisis situations, the
SC has over the years acted
Resolution 794 (adopted in December 1992 in response to the Somali crisis)
 In a few selected cases, however, the Council, acting pursuant to Article 39, has found a
state's violations of human rights to constitute a threat to the peace and has consequently
adopted mandatory sanctions against that state.
 The first case occurred in 1966, when the Council imposed mandatory, albeit selective,
economic sanctions against Southern Rhodesia,
 In 1977 the Council again invoked the "threat to the peace" rationale in order to impose a
mandatory arms embargo against South Africa.

THE UN AND THE MAINTENANCE OF INTERNATIONAL PEACE AND SECURITY

(CONT.)

 Resolution 678 (1990) / adopted by the Security Council at its 2963rd meeting, on 29th
November 1990
 Resolution 688 (1991) / Adopted by the Security Council at its 2982nd meeting, on 5th
April, 1991
 Resolution 794 (1992) adopted by the Security Council at its 3145th meeting on 3rd
December, 1992
 Resolution 940 (1994) / adopted by the Security Council at its 3413th meeting, on 31%
July 1994

THE INTERNATIONAL COURT OF JUSTICE

Establishment

 The IC is established under article 92 of the 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".
 The phrase "principal judicial organ" suggests that:
The IC is one of the organs of the UN.
The connection between the Court and the UN is organic.
It is not the only judicial organ of the UN
 There Is a room for other subsidiary judicial organs of a regional and functional
character. (See articles 52 and 95 of the UN Charter)

 The ICJ has two roles:

To settle/decide legal disputes between/among states (contentious cases).
To give advisory opinions on legal questions (advisory proceedings) (Article 95 of the
UN Charter).
 These questions can be Issued by tire GA. the SC or UN agencies.
 The Courts official languages are English and French (article 39 of the ICJ Statute).

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 The ICJ seats at the Hague but it can seat and determine matters anywhere around the
globe (Art. 22 of the ICJ Statute).

Composition

 The court consists of 15 Independent judges elected regardless of their nationality

(articles 2 and 3 of the ICJ Statute).
The Judges are independent officers; they do not represent their respective countries.
E.g.-A judge can still preside over a matter le witch his country of origin is a party.

 The appointee must:

Be of high moral character.
Must possess the qualifications required in their respective countries for appointment to
the highest judicial offices or;
Juriconsults of recognized competence in international law.

 You cannot have more than 1 judge from a single state. (Boas)
 There has to be geographical balance in terms of the Court's composition.
 5 judges from western states, 3 judges from African states, 3 judges from Asian states,
2 judges from Eastern Europe and 2 judges from Latin America.
 Judges can still preside over matter involving their country of origin (Art. 31 (1) of the
ICJ Statute).
 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 (ad hoc capacity)[see art. 31 (2) of
the IC Statute).
 If neither of the parties do not have a judge of their nationality, they may each choose a
judge in accordance with art. 31 (2) of the IC Statute [art. 31 (3) of the ICJ Statute].

Application of the Convention on the Prevention and Punishment of the Crime of Genocide,
Bosnia and Herzegovina v Yugoslavia, Order, Provisional Measures, (1993] ICJ Rep 3,
TCGJ 67 (IC) 1993), 8th April 1993

"What is true for the Court as a whole is every bit as compelling for an ad hoc judge. The
fact that he is appointed by a party to the case in no way reduces the operative force of
his solemn declaration under Article 20 of the Statute, made in the same form as that of
the titular judges, that he will exercise his powers impartially and conscientiously. At the
same time, it cannot be forgotten that the institution of the ad hoc judge was created for
the purpose of giving a party, not otherwise having upon the Court a judge of its
nationality, an opportunity to join in the work of this tribunal... This has led many to
assume that on ad hoc judge must be regarded as a representative of the State that
appoints him and, therefore, therefore, as necessarily pre-committed to the position that
that State may adopt...That assumption is, in my opinion, contrary to principle and
cannot be accepted. Nonetheless, consistently with the duty of impartiality by which the
ad hoc judge is bound, there is still something specific that distinguishes his role. He has,
I believe, the special obligation to endeavour to ensure that, so far as Is reasonable,

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 every relevant argument in favour of the party that has appointed him has been fully
appreciated in the course of collegial consideration and, ultimately, is reflected - though
not necessarily accepted - In any separate or dissenting opinion that he may write. It is
on that basis, and in awareness that the tragedy underlying the present proceedings
imposes on me an especially grave responsibility, that I approach my task."

Election of judges

 Judges are appointed by the Security Council and the General Assembly
An absolute majority is needed for both the SC and GA.
With respect to the SC no distinction is made between the permanent and non-
permanent members (article 10 (2) of the ICJ statute).
 The candidates are nominated by national groups of the Permanent Court of Arbitration
"The members of the Court shall be elected by the General Assembly and by the
Security Council from a list of persons nominated by the national groups in the
Permanent Court of Arbitration, in accordance with the following provisions"

 For member states who are not members of the PCA, national groups are appointed (for
the purpose of nominating candidates) by their respective governments under the same
conditions as states who are members of the PCA [article 4 (2) of the ICJ Statute].
 The election takes place every 3 years (5 judges each election)
 The GA and the SC elect the judges independently (article 8 of the Statute of the ICJ).

Parties

1. Parties to a case before the ICJ

 Only states can be parties in a case before the ICJ (Art. 34 of the ICJ Statute)
2. Parties to the ICJ statute
 All members of the UN are ipso facto parties to the Statute of international
Court of justice (art 93 (1) of the UN Charter). [also see art 35 of the ICJ
statute]
 A state cannot be a member of the UN without being a member to the ICJ
statute
 However, a state which is not a member of the UN can be a party to the ICJ
statute on conditions determined by the General Assembly upon
recommendation by the Security Council (Art. 93 (2) of the UN charter).
 E.g. in 1946 the Swiss Government inquired under what conditions
Switzerland could become a party to the ICJ statute. By a resolution
adopted by the General Assembly and the recommendation of the
Security Council, the following conditions were laid down
a. Acceptance of the provisions of the statute of the international
court of justice.

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 b. Acceptance of all obligations of a member of the United
Nations under article 94 of the charter.
c. An undertaking to contribute to the expenses of the court such
equitable amount as the General Assembly shall asses from
time to time after consultation with the Swiss government.
 The court is also open to states not parties to the ICJ statute under conditions
laid down by the Security Council (art. 35 (2) of the ICJ statute).
 UN Security Resolution No. 9 of 15th October, 1946.

Undertaking to Comply with the decisions of the court

 Article 94 (1) of the UN Charter

o Each member of the United Nations undertakes to comply with the decisions
of the international Court of Justice in any case to which it is a party.
 It is an established principle of international law that a decision of the International
court is binding upon the parties
o Also see article 2 (2) of the UN Charter.
 Where a party fails/refuses to comply with a judgment, the assigned party may have
recourse to the SC which may make recommendations or decode upon measures to be
taken to give effect to the judgment (art 94 (2) of the UN Charter)
o Does this give powers to the SC in excess of those in chapters V, VI and VII of
the UN Charter?

Jurisdiction

 The jurisdiction of the ICJ is provided for under art. 36 (1) of the ICJ statute which is
crafted in the following terms:
o “The jurisdiction of the court comprises all cases which the parties refer to it
and all matters specially provided for in the charter of the United Nations or
in treaties and conventions in force.”
 The phrase “all parties” suggests that for the court to assume jurisdiction, both parties
have to agree to refer the matter to the court.
 Parties can refer the dispute to the court by special agreement.
o Parties can also refer the matter to the ICJ separately.
 Defendant state can accept jurisdiction even after proceedings have been commenced
against it.
o This can be express or by implication if it proceeds to defend the claim against
it without raising the issue of jurisdiction.
 Corfu Channel Case (Preliminary Objection) ICJ Rep. 1948
 Haya de la Torre Case (Judgment) ICJ Rep. 1951
 Parties can also agree in advance to confer jurisdiction on the court by
treaty/convention; “matters specifically provided for in the treaties”
o E.g. where a treaty specifically states that in the event of a dispute, the issue is
to be resolved by the ICJ.
 “Matters specifically provided for in the UN Charter”

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 o Corfu Channel case
 The UK government argued that the Security Council’s
recommendation to the parties to refer the matter to the ICJ under
article 36(3) of the UN Charter is enough to confer jurisdiction. In an
obiter by 7 judges, it was opined that that is not the position as
recommendations are not binding.
 A necessary implication of the obiter in the Corfu Channel case is that there are no
matters specifically provided for in the UN Charter
o Article 36 was drafted at a time when it was understood that the court would
have a compulsory jurisdiction
 A state may also accept the court’s Jurisdiction by making a declaration.

The principle of Reciprocity (Art. 36 (2) of the ICJ Statute)

 The state parties to the present statute may at any time declare that they recognize as
compulsory ipso facto and without special agreement, in relation to any other state
accepting the same obligation, the jurisdiction of the court in all legal disputes…
o A party cannot enjoy the benefits of an optional clause unless it is prepared to
accept the obligations of the optional clause.
 Article 36 (3) of the ICJ statute allows parties to make conditional declarations.
o “The declarations referred to above may be made unconditionally or on
condition of reciprocity on the part of several or certain states, or for a
certain time”
 A state may withdraw its declaration/acceptance by giving reasonable notice.
o Nicaragua v USA
 A withdrawal only relates to cases commenced after the withdrawal.
o Nottebohm, Liechtenstein vs. Guatemala IC Rep. 1952 (jurisdiction)
 Nottebohm, Lechtenstein vs, Guatemala IC Rep. 1952 (jurisdiction)

The international Court of Justice

Advisory Opinions

 The ICJ’s paper/mandate to issue advisory opinions is provided for under article 65 (1) of
the IC Statute which is crafted in the following terms:

“The Court may give an advisory opinion on any legal question at the request of
whatever body may be authorized by or in accordance with the Charter of the United
Nations to make such a request."

 Article 94 of the UN Charter provides as follows:

The General Assembly er the Security Council may request the International/ Court of
Justice to give on advisory opinion on any legal question

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 Other organs of the United Nations and specialised agencies, which may at any time be so
authorised by the General Assembly, may also request advisory opinions of the Court on
legal questions arising within the scope of their activities.
 A state cannot request an advisory opinion from the ICJ––it can only do so by requesting
either the GA or the SC to request for an advisory opinion

UN Organs that are Currently Authorized to Request Advisory Opinions Include:

* The Economic and Social Council

◦ The Trusteeship Council

Current authorised UN Specialized Agencies Include

 International Labour Organisation (ILO)

 Food and Agriculture Organisation of the United Nations (FAO)
 United Nations Educational, Scientific and Cultural Organisation (UNESCO)
 International Bank for Reconstruction and Development (IBRD)
 International Finance Corporation (IFC)
 International Development Association (IDA)
 International Monetary Fund (IMF)

 International Civil Aviation Organization (ICAO)

 International Telecommunication Union ((TU)

 International Fund for Agricultural Development (IFAD)

 World Meteorological Organization (WMO)

 International Maritime Organization (IMO)

 World Intellectual Property Organization (WIPO)

 United Nations Industrial Development Organisation (UNIDO)

 The ICJ has discretion as to whether or not it will give an advisory opinion.
The Legality of the Threat or Use of Nuclear Weapons [1996] ICJ Reports 226
“Article 65 paragraph 1 of the Statute provides: The Court may give an advisory
opinion. This is more than an enabling provision…the statute leaves a discretion as to
whether or not it will give an advisory opinion that has been requested of it, once it
has established its competence to do so.”

 The court can only refuse to give an advisory opinion if there are compelling reasons to
do so
 **what are the compelling reasons why the ICJ would refuse to give an advisory
opinion**

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 The Legality of the Threat or Use of Nuclear Weapons [1996] ICJ Reports 226
“The court has constantly been mindful of its responsibilities as “the principal organ
of the United Nations” when considering each request, it is mindful that it should not,
in principle, refuse to give an advisory opinion. In accordance with consistent
jurisprudence of the court, only compelling reasons could lead it to such refusal.”

 Compelling reasons are based on impropriety and not jurisdiction.

The Legality of the Threat or Use of Nuclear Weapons [1996] ICJ Reports 226

"Compelling Reasons*

Status of Eastern Currella, Advisory Opinion 1923 PCU

The request for an opinion related to the interpretation of a peace treaty between Russia
and Finland. The Court declined to give an opinion because one of the parties (Russia)
has refused to participate in the proceedings. The Court was conscious as to not render
an opinion without the consent of one of the parties and without its account of the facts.

 This view was intended to reflect the sovereignty of states

 However, the Court has over the years reduced the scope of this approach

The Interpretation of Peace Treaties case IC Report, 1950

 The opinions are not binding on the states concerned:

 Giving such opinions represents the Court’s participation in the activities of the
Organisation.

Reservation to the Genocide Convention case

 The object of advisory opinions & to guide the UN in respect its own action

Western Sahara case

 In the case the court had enough material to enable it to give an advisory opinion despite
the lack of participation of the concerned states.
 **the authority for the compelling reason is the Status of Eastern Currella, Advisory
Opinion–that the court needs to have enough material information. But the other
compelling reason of state consent has been departed from with the 3 subsequent cases
 **Must read Legal Consequences of the Construction of a Wall in the Occupied
Palestinian
 Skipped notes**

Legal Consequences of the Construction of a Wall In the Occupied Palestinian Territory,

Advisory Opinion ICJ Rep. 136[2004

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 "Lack of consent might constitute a ground for declining to give the Opinion requested
if, in the circumstances of a given case, considerations of judicial propriety should
oblige the Court to refuse an Opinion. In certain circumstances _ the lack of consent of
an interested State: may render the giving of on Advisory Opinion incompatible with
the IC/s, judicial character. An instance of this would be when the circumstances
disclose that to give a reply would have the effect of circumventing the principle that
a State is not obliged to allow its disputes to be submitted to judicial settlement
without its consent."

 A necessary implication of article 65 (1) of the IC Statute and article 96 of the UN charter
is that a State cannot request for an advisory opinion from the ICJ
However, states are allowed to participate in proceeding before the Court (see article 66
(2) of the IC Statute.

“The Registrar shall also, by means of a special and direct communication, notify
any state entitled to appear before the Court or international organization
considered by the Court, or, should it not be sitting, by the President, as likely to
be able to furnish information on the question, that the Court will be prepared to
receive, within a time limit to be fixed by the President, written statements, or to
hear, at a public sitting to be held for the purpose, oral statements relating to the
question.”

The International Court of Justice

Purpose of Advisory Opinions

 To offer legal advice to organs and institutions requesting the opinion.

Legality of the Threat on use of Nuclear weapons Casa, IC Reports, 1996
“The purpose of the advisory functions is not to settle or least directly disputes
between states, but to offer legal advice to organs and institutions requesting the
opinion.”
 Advisory opinions bring some clarity and/or guidance on the legal principles governing a
particular area.

The Legal Effect of Advisory Opinions

 Advisory opinions are not binding (per se) on the requesting body/entity.
In practice advisory opinions are usually accepted and acted upon by the states
concerned.

Certain Expenses Care

 In some cases, provision may be made in an advance that an opinion will be binding.

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 The General Convention on the Privileges and Immunities of the United Nations
(1946)

"If a difference arises between the United Nations and a member, a request for an
advisory opinion should be made by an organ of the United Nations and that the
opinion rendered by the Court shall be accepted as decisive by the parties."

STATE RESPONSIBILITY - DEFINITION

State Responsibility Defined

 The international law on state responsibility relates to the circumstances under which a
state is held responsible for a breach of an internationalobligation.
 Historically this body of law only related to a state's treatment of aliens/foreigners on its
territory.
State responsibility is by and large governed by customary law
The state was under an obligation to treat aliens in a fair and civilized manner
Not to be subject aliens/foreigners to treatment less than that of the citizens of the
respective state
 The position changed on 9th August, 2001 with the adoption of the UN International Law
Commission's Draft Articles on Responsibility of States for Internationally Wrongful
Acts.
The draft articles are guidelines that aim to codify existence the rules governing the
responsibility of states for their internationally wrongful acts.

State Responsibility – Definition

 The articles relate to secondary rules and not primary rules of state responsibility.
The articles do obligations breach of which gives rise to responsible This is a function
of the primary rules, whose codification would involve restating most of substantive
international law, customary and conventional." (Commentaries on Draft articles).

 Currently a state's responsibility may arise where it;

Fails to honour a treaty,
Violates the territorial sovereignty of another state;
Damages the territory or property of another state;
Employs armed force against another state;
Injures the diplomatic representatives of another state, or;
If it mistreats the nationals of another state.

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State Responsibility - Nature and Scope

The Key Elements of State Responsibility

 Three elements have to be satisfied for SR to be triggered.

The existence of an international legal obligation recognized by international law.
An act or omission that violates that obligation.
Some loss or damage caused try the breach of that obligation.

 Several judicial pronouncements have made reference to these requirements.

 Factory at Chorzow (Germany. v. Poland), 1927 P.C.IJ. (ser. A) No, 9 (July 26)
“It is a principle of international law, and even a greater conception of law, that any
breach of an engagement involves an obligation to make reparations!"

State Responsibility -Nature and Scope

Spanish Zone of Morocco Claims (Great Britain v. Spain) ( 1924) 2 R.I.A.A.

“Responsibility is the necessary corollary of a right. All rights of an international

character involve international responsibility. Responsibility results in the duty to make
reparation if the obligation in question is not met.”

 Article 1 of the Draft Articles on

"Every internationally wrongful act of a state entails the international responsibility of

that state.

Corfu Channel Case

 Article 2
 "There is an internationally wrongful act of a State when conduct consisting of an
action or omission;
 Is attributable to the State under International law; and
 Constitutes a breach of an international obligation of the State"
State Responsibility -Nature and Scope

Standard of Breach/Care

 There have been academic debates relating to the issue as to whether/not the
responsibility of a State for unlawful acts or omissions is strict (strict liability) or whether
there has to be an element of fault or intention.

 Strict Liability approach (objective responsibility)

The liability of the state is strict. A mere unlawful act/omission resulting into injury and
or damage to another state suffices.
Knowledge and/or intention is irrelevant.

Caire Claim 5 RIAA 516 (1929)

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 “But In order to be able to admit this so-called objective responsibility of the state for
acts committed by its officials or organs outside their competence, they must have
acted at least to all appearances as competent officials or organs, or they must have
used powers or methods appropriate to their official capacity".

State Responsibility -Nature and Scope

 The Subjective approach ("fault theory")

There has to be an element of fault or negigence leading to the breach.

Corfu Channel Care (Marita) (1947] ICJ Rep. 4

"From all the facts and observations mentioned above, the court drawn the conclusion
that the laying of the minefield which caused the explosions on October 22nd, 1946,
could not have been accomplished without the Knowledge of the Albanian
Government… For these reasons, the Court gives judgment thot the People's Republic of
Albania is responsible under international law for the explosions which occurred on
October 22nd 1945, in Albanian waters and for the damage and loss of human life which
resulted there from."

 Home Missionary Society Claim 6 RIAA 42 (1920)

The Concept of Imputability (attribution) of State Responsibility

 A state is an abstract entity which cannot act itself. It acts and/or omits to act through
authorized officials and representatives.
 Imputability is a legal fiction which attributes the actions and omissions of state officials
to the state itself.
 The state is only liable for acts and omissions which are imputable and/attributable to it.
Article 2 of the draft articles
"There is an internationally wrongful act of a State when conduct consisting of an
action or omission;
a) Is attributable to the State under International law;

 State Responsibility may also arise from acts/omissions of non-state entitles exercising
governmental authority.
 Article 5 of the draft articles:
"The conduct of a person or entity which is not an organ of the State under article 4 but
which is empowered by the law of that State to exercise elements of the governmental
authority shall be considered an act of the State under international law, provided the
person or entity is acting in that capacity in the particular instance."

 However, article 5 only relates to the conduct of an entity concerning governmental

activity and not private or commercial activity.
 The provision is intended to cover privatized corporations which retain certain public or
regulatory functions (e g. Statutory Corporations).

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 Article 5 also relates to situations where an organ or agent of a state are placed at the
disposal of another international legal entity in a situation where both the state and the
entity exercise elements of control over the organ or agent in question.
 E.g. where a state deploys peace keeping troops at the request of the UN Behrami vs.
France
Bosphorus Airways Vs, Ireland, European Court of Human Rights, Judgment of 30 th
June, 2005

Liability for Ultra Vires Acts

 A state may still be found liable for unlawful acts where the official acts within the
general scope of their duty.
 Article 7 provides as follows:
“The conduct of an organ of a State or of o person or entity empowered to exercise
elements of the governmental authority shall be considered as an act of the State under
international law if the organ, person or entity acts in that capacity even if it exceeds
its authority or contravenes instructions.”

Calre Claim 5 RIAA 516 (1929)

 The officials must have acted at least to all appearances as competent officials or organs
or they must have used powers or methods appropriate to their official capacity.

Mosse case 13 RIAA 494

“Even if it were admitted that officials had acted outside the statutory limits of the
competence of their service, it should not be deduced, without further ado, that the claim
is not well founded. It would still be necessary to consider a question of law namely
whether the in international order the state should be acknowledged responsible for acts
performed by officials within the apparent limits of their functions, in accordance with a
line of conduct which was not entirely contrary to the instructions received"

 There Is a distinction between unauthorized conduct of a State Organ and purely private
conduct.
 Francisco Mallen (United Mexican States) vs. USA (1927)

Calre Clalm 5 RIAA 516 (1929)

 In this case it was stated that liability can excluded only in cases where the act had no
connection with the official function. An act of a private individual"

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Circumstances under which State Responsibility is Precluded

 Specifically provided for under chapter V of the Draft Articles

 Under Article 26–general proviso
 The circumstances provided for under chapter V will not apply in circumstances where
peremptory norms are involved
 Skipped notes…..

 Circumstances under which the invocation of State Responsibility may be precluded are
provided for under Chapter V of the draft articles.

 The circumstances do not include breaches of peremptory norms of international law

 Article 26 of the draft articles.

"Nothing In this chapter precludes the wrongfulness of any oct of a State which is not
in conformity with an obligation arising under a peremptory norm or general
international law.”

 Some of the generally accepted jus cogens norms include prohibitions against:

Aggression

Genocide

Slavery

Racial discrimination, crimes against humanity and torture

 The circumstances under which state responsibility is precluded include; consent,

necessity, force majeure, self-defence and distress.

Consent
 Article 20 of the draft articles:

"Valid consent by a State to the commission of a given act by another State precludes
the wrongfulness of that act in relation to the former State to the extent that the act
remains within the limits of that consent."

Russian Claim for Interest on Indemnities (Damages Claimed by Russia for Delay in
Payment of Compensation Owed to Russians Injured during the War of 1877-78) (1912) 11
RIAA 421.

 For consent to be valid, it must be given by authorities competent to give such consent.

 Consent can be express or implied.

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Self-Defence
 State responsibility is precluded if measures taken by the State constitute an act of self-
defence taken in conformity with the UNCharter.

 Article 21 of the draft articles

“The wrongfulness of an act of a State is precluded if the act constitutes a lawful

measure of self-defence taken in conformity with the Charter of the United Nations."

Force Majeure (Superior force)

 State responsibility is precluded if the act is taken within the context of force majeure
 Force majeure refers to "an event or effect that can be neither anticipated nor controlled.
The term includes both acts of nature (e.g. floods and hurricanes) and acts of people (e.g.
riots, strikes, wars). (Black’s Law Dictionary)

 This applies in circumstances where an act is carried out in response to the occurrence of
irresistible force or of an unforeseen event, beyond the control of the state, making it
impossible for the state to perform its obligation.
 Article 23 of the draft articles:
1. The wrongfulness of an act of a State is precluded if the act is due to force majeure,
that is the occurrence of on irresistible force or of an unforeseen event, beyond the
control of the State, making it materially impossible in the circumstances to perform
the obligation.
2. Paragraph 1 does not apply if
a) The situation of force majeure is due either alone or in combination with offer
factors, to the conduct of the State invoking it.

 Force majeure does not include circumstances in which performance of an obligation has
become more difficult e.g. political/ economic crisis.

 Force Majeure does not arise in situations brought about by neglect or default of the State
concerned.

 Article 24 of the Draft Articles––defence of Distress

 Essentials:
There has to be a risk which is a threat to life––such as violation of territorial integrity–
the author care is threatened

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Distress
 Article 24 of the draft articles
1. The wrongfulness of an act of a State not in conformity with an international
obligation of that State is precluded if the author of the act In question has no other
reasonable way, In a situation of distress, of saving the author's life or the lives of other
persons entrusted to the author's care

2. Paragraph 1 does not apply if:

a) The situation of distress is dure, either alone or in combination with other factors, to
the conduct of the State invoking it, or

b) The act in question is likely to create a comparable or greater peril

 An example under this head would be aircrafts or ships entering State territory under
stress of weather or following mechanical or navigational failure.

 Article 24 is limited to circumstances where human life is at stake.

 New Zealand vs. France (1990) 82 ILR 500––this case stretched the principle/Rainbow
Warrior case

Necessity
 Article 25 of the draft articles

1. Necessity may not be invoked by a State as a ground for precluding the wrongfulness of
an act not in conformity with an international obligation of that State unless the act:

a) Is the only means of the State to safeguard an essential interest against a grave and
imminent peril, and

b) Does not seriously impair an essential interest of the State or State towards which the
obligation exists, or of the international community as a whole.

2. In any case, necessity may not be invoked by a State as a ground for precluding
wrongfulness if:

a) The International obligation in question excludes the possibility of invoking necessity.

or

b) The State has contributed to the situation of necessity

 In practice necessity has been invoked to protect interests including

Safeguarding the environment
Preserving the interests of the state and its people in a time of public emergency.

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 Ensuring the safety of a civilian population

 The question as to what amounts to an "essential interest" depends on the circumstances

of the case.
 The interest has to be threatened by grave and imminent peril.
The peril in question is subjected to an "objective test"
The peril has to be proximate in terms of its occurrence.
However, where the occurrence of the threat is Inevitable, it may still be considered as
an imminent threat"

Gabcikovo-Nagymaros Project, Hungary v Slovakia, Judgment, Merits, ICI GL No 52.

[1997| 10) Rep 7––very good case on state responsibility

"This does not exclude- that o peril appearing in the long term might be held to be
imminent as soon as it Is established, at the relevant point in time, that the realisation of
that peril, however for off it might be, is not thereby any less certain and inevitable,

 The course of action taken must be the only way available to safeguard the interest.
Necessity cannot be invoked if there are other lawful means available even in
circumstances where the alternatives are more costly or less convenient

State Responsibility - Consequences of Breach

Consequences for breach of international obligations

 Where it has been established that a State has breached its international obligation(s) and
that none of the circumstances precluding liability are applicable, then the State is
subjected to secondary obligations.
 The obligations include:
 a) Cessation, assurances and guarantees of non-repetition
 b) Reparations

i. Restitution

il. Compensation

ili. Satisfaction

State Responsibility - Consequences of Breach

Cessation

 The Cessation of a conduct in breach of an international obligation is the first requirement

in eliminating consequences of wrongful conduct.
 Article 30 of the draft articles

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 The state responsible for the internationally wrongful act is under an obligation;

a) To cease the act, if it is continuing

 For cessation to arise two requirements have to be met;

a) The wrongful act must have a continuing character.

b) The violated rule must still be in force at the time the order is issued.

Rainbow warrior arbitration

United States Diplomatic and Consular Staff in Tehran, I.C.J. Reports 1980 p. 3

 In some instances, the question of cessation may not be distinguishable from restitution.
e.g. cases involving the freeing of hostages or the return of seized objects or premises.
The distinguishing factor however, is that cessation is not subject to proportionality.

Assurances and Guarantees of Non-Repetition

 Article 30 of the draft articles

"The state responsible for the internationally wrongful act is under an obligation;

a) To cease the act, if it is continuing.

b) To offer appropriate assurances and guarantees of non-repetition, if circumstances
so require

 Article 30 (2) (b) was discussed at length in the LaGrand case

LaGrand Cose (Provisional Measures) Germany vs. USA, IC Reports 1999

“The commitment expressed by the United States to ensure implementation of the

specific measures adopted in performance of its obligations under article 36 (1) (b),
must be regarded as meeting Germany's request for a general assurance of non-
repetition.”

Reparations

 The general obligation to make reparations automatically arises upon the commission of
an internationally wrongful act.
 Article 31 of the draft articles
1.The responsible State Is under an obligation to make full reparation for the injury
caused by the Internationally wrongful act.
2. Injury includes any damage, whether material or moral, caused by the
internationally wrongful oct of a State

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  Material damage refers to damage to property and/or interests of the State and its
nationals which is assessable in financial terms.
 Moral damage refers to damage to things such as individual pain and suffering, loss of
loved ones or personal affront associated with an intrusion on one’s home or private
life.

Factory at Chorzow (Germany, v, Poland), 1927 P.C.IJ. (ser. A) No. 9 (July 26)

“It is a principle of international law that the breach of an engagement involves an

obligation to make reparation in an adequate form. Reparation therefore, is the
indispensable complement of a failure to apply a convention and there is no necessity
for this to be stated in the convention itself”

 The purpose for reparations is to erase all the consequences of the illegal act.

Factory at Chorzow (Germany, v. Poland)

“The essential principle contained in the actual notion of an illegal act–a principle
which seems to be established by international practice and in particular by the
decisions of arbitral tribunals–is that reparations must, so far as possible, wipe all
the consequences of the illegal act and re-establish the situation which would, in all
probability, have existed if the act had not been committed. Restitution in kind, or if
this is not possible, payment of a sum of corresponding to the value of restitution in
kind would bear; the award, if need be, of damages for loss sustained which would
not be covered by restitution in kind or payment in place of it–such are the principles
which should serve fo determine the amount of compensation due for on act contrary
to international law.”

Restitution

 Article 35

A State responsible for an internationally wrongful act is under an obligation to make

restitution, that is, to re-establish the situation which existed before the wrongful act was
committed, provided and to the extent that restoration;

a) Is not materially impossible

b) Does not Involved a burden out of all proportion to the benefit deriving from
restitution instead of compensation.

 Restitution can take the form of restoration of territory, persons or property or reversal of
a juridical act.
Temple of Preach Vehear case (1962] IC/ Rep. 6

United States Diplomatic and Consular Staff In Tehran, I.C.J, Reports 1980 p. 3

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 The Arrest Warrant of 11 April 2000 (Democratic Republic of Congo vs. Belgium) (2000|
1CJ Rep. 36

Savarkar case (Scott, Hague Court Reports, p.275)

Compensation

 Article 36
1. The State responsible for an internationally wrongful act is under an obligation to
compensate for the damage caused thereby, insofar as damage Is not made good by
restitution

2. The compensation shall cover any financially assessable damage including loss of
profits insofar as it has been established

 The phrase financially assessable excludes compensation towards "moral damage" to a

State (injury caused by a violation of rights not associated with actual damage to property
or persons.

It aims at addressing actual losses incurred by the Claimant State

◦ Corfu Channel Case (1949) IC/ Rep. 4

◦ Nicaragua v, USA (1986) ICJ Rep. 14

◦ Sunday Times v. United Kingdom 2 EHRR 245

Satisfaction

 Unlike compensation, Satisfaction is concerned with non-material injury.

 Article 37
1. The State responsible for an internationally wrongful act is under an obligation to
give satisfaction for injury caused by thot act Insofar as it cannot be made good by
restitution or compensation,

2. Satisfaction may consist in acknowledgement of the breach, an expression of regret,

a formal apology or another appropriate modality.

3. Satisfaction shall not be out of proportion to the injury and may not take a form
humiliating to the responsible State

Rainbow Warrior Arbitration

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 There is a long-established practice of States and International Courts and Tribunals of
using satisfaction as a remedy or form of reparation (in the wide sense) for the breach
of international obligation. This practice relates particularly to the case of moral or
legal damage done directly to the State, especially as opposed to the case of damage to
persons involving international responsibilities.

I'm Alone Case (Canada v. United States) 3 RIAA 1609

 An aggrieved State does not have to suffer material harm or damage for it to be entitled to
seek reparation.

Rainbow Warrior Case

“Unlawful action against non-material Interests, such as acts affecting the honour,
dignity or prestige of a State, entitle a victim Store to receive adequate reparation, even
If those acts have not resulted in a pecuniary or material loss for the claimant State"

I am Alone Case

 There has to be a causal link between the wrongful act and the damage suffered for a
claimant State to be entitled to restitution.
Some of the terms that have been used to refer to the link include,
 Proximity, direct/indirect, remoteness, certainty/uncertainty

 The claimant State has an obligation to mitigate the damage caused.

Gabcikovo-Nagymaros Project, Hungary v Slovakia, Judgment, Merits, IC GL No 92,

(1997] ICJ

"It is stated that it is a general principle of international law that a party injured by the non-
performance of another contract party must seek to mitigate the damage he has sustained, It
would follow from such a principle that an injured State which has failed to take the
necessary measures to limit the damage sustained would not be entitled to claim
compensation for that damage which could have been avoided. While this principle might
thus provide a basis for the calculation of damages, it could not, on the other hand, justify an
otherwise wrongful act."

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