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  1. Jurisdiction - definition
    • • The capacity of the state to make law and ensure compliance with such law
    • • a consequence of the principle of state sovereignty which entails
    • – internally: supreme power of a state
    • – externally: the equality of a state with other states and legal inferiority to no other state
  2. The general principles of jurisdiction (PCIJ, Lotus, 1927)
    • • The jurisdiction to prescribe: a state has authority under international law to apply its national laws to matters arising
    • within and outside its territory, irrespective of the nationality of the object of that jurisdiction -> the right to legislate for
    • matters beyond the territorial domain -> unlimited by international law
    • • The jurisdiction to enforce: this prescriptive jurisdiction is curtailed in practice by the fact that the enforcement of
    • jurisdiction may take place only in a state’s own territory -> limited by international law: a state ‘should not over step
    • the limits which international law places upon its jurisdiction.’ ‘A state may not exercise its powers in any form in the
    • territory of another state.’
    • • Exclusive territorial jurisdiction: a state has absolute and exclusive power of enforcement within its own territory over
    • all matters arising therein, unless that power is curtailed by international law
    • – 'The question whether a certain matter is or is not solely within the jurisdiction of a State is an essentially relative
    • question; it depends on the development of international relations . . it may well happen that.. the right of a State to
    • use its discretion is … restricted by obligations which it may have undertaken towards other States. In such a case,
    • jurisdiction which, in principle, belongs solely to the State, is limited by the rules of international law.‘ (PCIJ,
    • Nationality Decrees Issued in Tunis and Morocco, 1923)
    • – ‘A State's domestic policy falls within its exclusive jurisdiction, provided of course that it does not violate any
    • obligation of international law. Every State possesses a fundamental right to choose and implement its own political,
    • economic and social systems’ (ICJ, Nicaragua, 1986, para. 258).
  3. The grounds for the exercise of jurisdiction
    • • The Lotus doctrine that states may exercise their jurisdiction in all circumstances that are not specifically prohibited
    • under international law is not valid any more
    • – a state is entirely free to project its jurisdiction over any matter taking place outside its territory, so long as this is not
    • prohibited by international law
    • • The specifically identified grounds for the exercise of jurisdiction are required
    • – the territorial jurisdiction (relates to both the jurisdiction to prescribe and the jurisdiction to enforce)
    • – the personal jurisdiction (relates to the jurisdiction to enforce)
    • • the territoriality principle stricto sensu
    • • the extra-territoriality principle
    • – the protective principle
    • – the effect doctrine
    • • the active nationality principle
    • • the passive nationality principle
    • • the universality principle
  4. The territorial jurisdiction
    • • A state has jurisdiction over all persons, property and events occurring within its territory
    • • A state has the right to exercise lawmaking, executive and the court jurisdiction at its own territory
    • • A state may not exercise its power in any form in the territory of another state (the Lotus case, PCIJ, 1927, Art 2(3)
    • The 1988 UN Convention Against Illicit Traffic in Narcotic Drugs and Psychotropic Substances) in the absence of a
    • permissive rule of international law or authorisation by another state (UK/Netherlands Agreement 1999 permitting the
    • trial of the Lockerbie subjects by a Scottish court, according to Scots law, in Dutch territory; the US military bases on
    • Cuba and the UK military bases on Cyprus, the UN mandate granted to the NATO countries to administrate Kosovo
    • and Iraq)
  5. The scope of the territorial jurisdiction
    • • Areas falling under the territorial jurisdiction
    • – territory
    • – air space above the state territory and territorial waters and sea
    • – territorial waters
    • – territorial sea
    • • Area placed outside the territorial jurisdiction
    • – the high seas
    • – the ocean bed
    • – the outer space and celestial bodies
    • • A state has jurisdiction over all persons, property and events occurring within its territory
    • • A state has the right to exercise lawmaking, executive and the court jurisdiction at its own territory
    • • A state may not exercise its power in any form in the territory of another state (the Lotus case, PCIJ, 1927, Art 2(3)
    • The 1988 UN Convention Against Illicit Traffic in Narcotic Drugs and Psychotropic Substances) in the absence of a
    • permissive rule of international law or authorisation by another state (UK/Netherlands Agreement 1999 permitting the
    • trial of the Lockerbie subjects by a Scottish court, according to Scots law, in Dutch territory; the US military bases on
    • Cuba and the UK military bases on Cyprus, the UN mandate granted to the NATO countries to administrate Kosovo
    • and Iraq)
  6. The scope of the territorial jurisdiction
    • • Areas falling under the territorial jurisdiction
    • – territory
    • – air space above the state territory and territorial waters and sea
    • – territorial waters
    • – territorial sea
    • • Area placed outside the territorial jurisdiction
    • – the high seas
    • – the ocean bed
    • – the outer space and celestial bodies
    • – the Antarctic
    • – the Arctic
    • Limitations to the territorial jurisdiction imposed by international law
    • • The respect for international law
    • • The principle of the respect for exclusive territorial jurisdiction of other states
    • • States must abstain from using or permitting other states or individuals (the due diligence principle) to use their
    • territory for the activities intended to undermine the stability of regimes or governments of other states (ICJ, Corfu
    • Channel case, 1949; UN Friendly Relations Declaration, 1970)
    • • The limitations imposed by diplomatic law
    • • The limitations arising from transfer of powers to international organisations
    • • The limitations imposed by international environmental law ( eg. the Rio declaration on environment and development,
    • 1992, principle no 2; ICJ, Legality of the Use of Nuclear Weapons, 1996,; Article 7 of the 1997 Convention on the Non-
    • Navigational Uses of International Watercourses)
    • • The limitations imposed by international human rights standards
  7. The principle on non-intervention as a consequence of the absolute nature of the territorial jurisdiction
    • • A duty to restrain from interfering in the domestic affairs of another state
    • • a duty of a state
    • – No state has the right to intervene, directly or indirectly, for any reason whatever, in the internal or external affairs
    • of any other state (ICJ, Nicaragua, 1986, ICJ, Armed Activities on the Territory of the Congo, 2003; UN Friendly
    • Relations Declaration, 1970; International Law Commission, Declaration on Rights and Duties of States, 1949)
    • (pronouncements of states on internal matters of other states do not qualify as intervention)
    • • Exception: UN SC resolutions adopted under Chapter VII UN Charter (e.g. UN SC Resolution 1973 authorising
    • NATO intervention in Libya)
    • • a duty of the UN
    • – Nothing contained in the present Charter shall authorise the United Nations to intervene in matters which are
    • essentially with the domestic jurisdiction of any state (Article 2(7) UN Charter)
    • • Exception: UN SC resolutions adopted under Chapter VII UN Charter (e.g. UN SC Resolution 1973 authorising
    • NATO intervention in Libya)
  8. Determination of domestic jurisdiction
    • • It is a matter for international law to determine whether a matter is one of domestic jurisdiction or not (Nationality
    • Decree in Tunis and Morocco, PCIJ, 1923; the Lotus case, PCIJ, 1927)
    • – reserve domain -> a matter falling under domestic jurisdiction of a state
    • • The circumstances in which a state is able to assert that a matter is within its domestic jurisdiction have been
    • narrowed and restricted since 1945
  9. Declining importance of the territorial jurisdiction
    • • Increase in immigration
    • • Activities of multionational companies
    • • Globalisation of the world economy (trade, services)
    • • Internet/email/datatransfer
    • • Trans-border criminality
    • • Increase in desire of states to extend their jurisdiction extra territorially
    • • Increase in the need for the delimitation of jurisdiction of states
  10. The personal jurisdiction
    • • Relates to the jurisdiction to enforce
    • • It concerns in the first place the criminal jurisdiction, but also other sorts of jurisdiction (e.g. tax law)
    • • This type of jurisdiction has not only territorial dimension
    • • The law of a state can be enforced by it as regards:
    • – its citizens who find themselves abroad
    • – citizens of other states who find themselves on its territory
    • – third country citizens who violated international law abroad
  11. Declining importance of the territorial jurisdiction
    • • Increase in immigration
    • • Activities of multionational companies
    • • Globalisation of the world economy (trade, services)
    • • Internet/email/datatransfer
    • • Trans-border criminality
    • • Increase in desire of states to extend their jurisdiction extra territorially
    • • Increase in the need for the delimitation of jurisdiction of states
  12. The personal jurisdiction
    • • Relates to the jurisdiction to enforce
    • • It concerns in the first place the criminal jurisdiction, but also other sorts of jurisdiction (e.g. tax law)
    • • This type of jurisdiction has not only territorial dimension
    • • The law of a state can be enforced by it as regards:
    • – its citizens who find themselves abroad
    • – citizens of other states who find themselves on its territory
    • – third country citizens who violated international law abroad
  13. The limitations to the personal jurisdiction imposed by international law
    • • A state can exercise the power to arrest only on its own territory
    • • The exercise of the power to arrest by one state on the territory of another state contravenes the principle of the
    • respect of territorial integrity of states (European Court for Human Rights, Ocelan, 1999; Eichmann, Israel, 1961)
  14. The principles for the application of personal jurisdiction
    • • The territoriality principle
    • • The nationality principle
    • • The universality principle
    • The territoriality principle
    • • The territoriality principle stricto sensu
    • – a state has jurisdiction over all persons, property and events occurring within its territory
    • • The extraterritoriality principle
    • – a state exercises its executive jurisdiction outside of its territory
    • – the protective principle
    • – the effect doctrine
    • The protective principle
    • • It is based upon the protection of vital interests of states
    • • A state may exercise its jurisdiction over aliens who have committed an act abroad which is deemed prejudicial to vital
    • (public) interests of the particular state concerned
    • • ICJ Spain v Canada 1998; the UK Terrorism Act 2000; killing of Osama Bin Laden by US forces in Pakistan
    • The effect doctrine
    • • It is based upon the protection of economic interests of states or their citizens
    • • A state may exercise its jurisdiction over aliens who have committed an act abroad which is deemed prejudicial to the
    • economic interest of the particular state concerned or its citizens
    • • The European Union: The Court of Justice of the European Union, Case T-120/96 Gencor, par. 90; Case C-258/08
    • Ladbrokes, paras. 20 and 54)
    • • The United States (the 1996 Helms-Burton Act; the 1996 D’Amato Act)
  15. The distinction between the protective principle and the effect doctrine
    • • The protective principle apples when actions undermine vital (public) interests of the state concerned
    • • The application of the effect doctrine is not restricted to actions damaging for public interests of the state concerned,
    • but includes commercial (economic) interests as well
  16. The nationality principle
    • • The (active) nationality principle
    • • The passive nationality principle
  17. The (active) nationality principle
    • • It is based upon the nationality of offenders
    • • A state may exercise its jurisdiction over its nationals who committed offences abroad
    • • E.g. the UK 1996 Sexual Offences (Conspiracy and Incitement) Act; the UK applies ECHR extraterritorially (The
    • House of Lords, Al Skeini and others v Secretary of State for Defence, 2009[UK armed forces in Iraq]).
  18. The passive nationality principle
    • • It is based upon a victim of crime
    • • a state may claim jurisdiction to try an individual for offences committed abroad which have affected or will affect
    • nationals of the state
    • • National cases (Mexico: the Cutting case, 1887, US District Court for the District of Columbia, US v Yunis, 12
    • February 1988)
    • • Art 5(1)© of the 1984 UN Convention against torture (recognised) ->Pinochet (Spain, 1998)
    • • The 1997 UN treaties concerning the prevention of terrorist bomb attacks and financing of terrorism (recognised)
    • • The application of the effect doctrine is not restricted to actions damaging for public interests of the state concerned, but includes commercial (economic) interests as well
  19. The universality principle
    • • It is related to crimes which are offensive to the international community as a whole
    • • In exceptional cases a state may try offenders whatever their nationality and whatever they happened to carry out their criminal activities for offences which are so serious as to qualify as crimes under international law such as:
    • – e.g. piracy (The Law of the Sea Convention, 1982, Art. 105)
    • – war crimes (The four 1949 Red Cross Geneva Conventions)
    • – crimes against humanity
    • – genocide
    • – torture (UN Torture Convention 1984) and
    • – less certainly hijacking of aeroplanes, hostage-taking (US District Court for the District of Columbia, US v Yunis, 12
    • February 1988) and drugs-related offences
    • • Terrorism is not is not a crime susceptible to universal jurisdiction (United States Court of Appeals for the Second
    • Circuitus, US v Yousef, 2003)
    • • A distinction should be made between those crimes that were subject to universal jurisdiction in customary
    • international law (piracy, war crimes) and those that are regarded as international crimes under various treaty
    • arrangements (The 1949 Geneva Conventions, UN Torture Convention 1984)
    • • Majority of states will exercise the universal jurisdiction only if there is some real link between and the alleged crime and the state exercising the jurisdiction (e.g. the presence of the accused on the territory of the state, or the specific
    • treaty authorisation)
    • – Bouterse, Hoge Raad der Nederlanden, 2001
    • – the Belgium genocide law
    • • The Congolese Colonel Case, Rotterdam, 7 April 2004; Hesam, The Hoge Raad, 8 July 2008
    • • Demjanyuk, Israel, 1985
    • • Eichmann, Israel, 1961
    • – `international law provides that certain offences may be punished by any state because the offenders are common enemies of all mankind’
  20. The compulsory criminal jurisdiction
    • established by treaties
    • (quasi-universal jurisdiction)
    • • Parties to the particular treaties (e.g. the UN Torture Convention 1984, treaties related to hostage taking, currency counterfeiting, hijacking and drugs trafficking, the Red Cross Geneva Convention I 1949 [Art. 49]; the destruction of submarine cables, slavery; the 1997 UN treaties concerning prevention of terrorist bomb attacks [Art. 8(1)] and financing of terrorist activities; the 1970 Convention for the Suppression of Unlawfull Seizure of Aircrafts) are under the obligation to exercise the compulsory jurisdiction -> the principle aut dedere aut judicare (extradite or try)-> a state, the
    • party to the particular treaty, is under an obligation to extradite or try a person suspected of offences prohibited by the treaty who find themselves on its territory
  21. • The obligation to prosecute overrides the obligation to extradite (ICJ, Questions relating to the Obligation to Prosecute or Extradite, Belgium v Senegal, 2012, para. 95)
  22. Extraterritorial jurisdiction
    • • Jurisdiction to prescribe not affected by international law
    • • Extraterritorial exercise of a state jurisdiction to adjudicate and enforce is prohibited by international law unless authorized by the host state
  23. Factors triggering the extraterritorial jurisdiction
    • • Effects within the state territory
    • – The objective territoriality principle
    • – The effect doctrine
    • – The protective principle
    • • Nationality
    • – The active nationality principle
    • – The passive nationality principle
  24. • Universal values
    • – The universality principle
    • • In all situations the distinction should be made between:
    • – the jurisdiction to prescribe
    • – the courts jurisdiction (adjudicative jurisdiction)
    • – the jurisdiction to enforce (extra-territorial enforcement is illegal)
    • Remedies in the cases of conflicting jurisdiction of states
    • • Multilateral treaties (e.g. double taxation prevention treaties; Art. VII (3) NATO Treaty giving jurisdiction to the state of
    • origin of military personnel)
    • • The obligation to prosecute overrides the obligation to extradite (ICJ, Questions relating to the Obligation to Prosecute
    • or Extradite, Belgium v Senegal, 2012, para. 95)
    • • International law
    • – however is does not provide clear, precise and unambiguous rules on this matter
    • – Territoriality and nationality principles carry more weight than others
  25. Immunity as a form of international law limitation to the territorial jurisdiction
    • • Immunity is related to jurisdiction to enforce and not to jurisdiction to prescribe (law making)
    • • Immunity represents exceptions to exclusive powers of a state to enforce law on its territory
    • • States are to abstain from enforcing their laws over persons and goods
  26. State immunity - sources
    • • Customs
    • • European Convention on state immunity (1972)
    • – 8 states parties
    • • The 2004 UN Convention on Jurisdictional Immunities of States and Their Property (not yet in force)(the codification of
    • international customary law)
  27. Forms of a state immunity
    • - based upon the principle of the sovereign equality of states*: par in parem non habet imperium -
    • • Immunity from a judicial process
    • – a state cannot be made subject to the judicial process in another state in relation to civil and criminal matters (Art. 5
    • of the 2004 UN Convention)
    • • Immunity from the execution
    • – assets of foreign states intended for public services cannot be seized by other states for the purpose of the
    • execution of their courts’ judgements (ICJ, Germany v Italy, 2012)
  28. Exceptions to the state immunity from a judicial process
    • • Waver of immunity by states (explicit [Art. 7 of the 2004 UN Convention] or implicit [Art. 7 of the 2004 UN Convention])
    • • Express consent to exercise of jurisdiction given by states through international agreements such as the Statute of
    • International Criminal Court (Arts. 27 and 98) (not applicable to non-parties) (Art. 7 of the 2004 UN Convention)
    • • The jurisdiction based upon the UN Security Council resolutions taken under Chapter VII UN Charter
    • – waver of immunity for high representatives of states to the Yugoslavia and Rwanda tribunals, the SCSL ( Prosecutor
    • v Taylor, 2004), and the ICC (Art. 27 ICC Statut)e:
    • the Prosecution's request for a warrant of arrest for the Sudanese President, Omar Hassan Al Bashir [legal basis:
    • Art. 13(b) ICC Statute and the UN SC resolution 1593 {2005}] and the Libyan had of state Gaddafi [legal basis: Art.
    • 13(b) ICC Statute and the UN SC resolution 1970 {2011}]) who are intended to be prosecuted by those courts
    • • Commercial activities of states are exempted from the principle of immunity (NL Supreme Court, Russian Federation v
    • Pied-Rich, 1993)
    • • Disputes relating to employment contracts applicable to persons performing functions which do not entail the exercise
    • of governmental authority (Art. 11 of the 2004 UN Convention; ECHR, Cudak v Lithuania, 2010) the infringement of
    • intellectual property rights, and to personal injury or damage to tangible property (Art. 12 of the 2004 UN Convention)
    • are exempted from the principle of immunity
  29. Exceptions to the state immunity from the jurisdiction of the courts of another state
    • • The absolute immunity
    • – acts jure imperii -> governments acts related to sovereign powers of a state are exempted from the jurisdiction of
    • the courts of another state
    • • The restrictive immunity
    • – acts jure gestionis -> government commercial transsactions (non-sovereign acts) are not exempted from the
    • jurisdiction of the courts of another state (NL Supreme Court, Russian Federation v Pied-Rich, 1993; Arts. 10 and
    • 13 of the 2004 UN Convention)
  30. Tests for distinguishing jure imperii from jure gestionis acts
    • • The purpose of transaction test (does a transaction serve public purpose or not)
    • – unsatisfactory because all acts of a sovereign can be said to have a public purpose of some sort
    • • The nature of the transaction test (does the issue concern a law or a contract)
    • – a contract for the supply of goods is a commercial transaction per definition
    • – it does not accept that some sovereign activities can only be conducted through means that appear essentially
    • commercial (e.g. medicines to fight an epidemic, food supply)
    • – NL Supreme Court, Russian Federation v Pied-Rich, 1993
  31. The immunity from the execution
    • – assets of foreign states intended for public services cannot be seized by other states for the purpose of the
    • execution of their courts’ judgements (Art. 21 of the 2004 UN Convention)
    • – NL Supreme Court, Oltmans v Suriname,1990; NL Supreme Court, Russian Federation v Pied-Rich, 1993; NL
    • Supreme Court, Azeta v JCR, 11 July 2008
    • – Consent to the exercise of jurisdiction does not imply consent to the execution or enforcement of any judgement
    • obtained for which a separate waiver is necessary (NL Supreme Court, Azeta v JCR, 11 July 2008; Article 20 of the
    • 2004 UN Convention)
  32. The distinction between state and diplomatic immunity
    • • State immunity (ICJ, Belgian Arrest Warrant, 2002, paras. 54 and 61): functional (para. 53 + personal (para. 51)
    • immunity
    • – relates to sovereignty, independence, dignity and equality of states
    • – includes both criminal and civil liability
    • – an acting head of state or a high state representative (ministers) gains immunity from criminal and civil prosecution
    • by courts of other states for personal and official conducts, including international crimes
    • – after a person ceases to hold the office of a high state official, a court of one state may try a former ministers of
    • another state in respect of acts committed prior or subsequent to his or her period of office, as well as in respect of
    • acts committed during that period of office in a private capacity but not in respect to official acts, including
    • international crimes
    • – this goes against the Pinoche judgement (House of Lords, 1999) which claims that the concept of immunity does not
    • apply to international crimes (not equal to the concept of internationally wrongful acts)
    • • Diplomatic immunity: (Draft Arts. On Diplomatic Protection 2006)
    • – functional immunity : diplomats obtain immunity from criminal and civil prosecution by courts of other states for
    • actions which they perform in the course of their functions
    • – the necessary precondition for the performance of diplomatic functions; it ensures the effective discharge of the
    • diplomat’s duties
    • • it is to enable diplomatic staff to represent their home state effectively without fear of harassment or hindrance by
    • the receiving state
  33. The scope of diplomatic immunity
    • - The Vienna Convention on Diplomatic Relations 1961
    • - The Vienna Convention on Consular Relations 1963
    • - ICJ, US Diplomatic and Consular Staff in Tehran Case, 1980
    • • Diplomats and the members of their families gain immunity from executive not (law making) jurisdiction of host state.
    • They obtain:
    • – full-fledged immunity (also for private conducts) from criminal jurisdiction
    • – limited immunity (not for all private conducts) from civil and administrative jurisdiction (Art. 31(1) of the 1961 Vienna
    • Convention)
    • • Diplomatic buildings are inviolable (the host state in under an obligation to protect them [ICJ, US Diplomatic and
    • Consular Staff in Teheran Case, 1980, para. 61])
    • • Diplomatic bag (post) is inviolable
    • • It is the duty of all persons enjoying immunities and privileges to respect the laws of the receiving state
    • • An abuse of diplomatic immunity does not entail a loss of diplomatic immunity
    • Exceptions to the principle of diplomatic immunity
    • • Persona non grata
    • • Waiver of immunity by the sending state
    • – Waiver of immunity from jurisdiction in respect of criminal, civil or administrative proceedings is not to be taken to
    • imply waiver from immunity in respect of the execution of the judgment, for which a separate waiver is necessary
  34. Immunities of international organisations
    • - The Convention on the Privileges and Immunities of the UN 1946 and Art. 105 UN Charter
    • - ICJ, Advisory Opinion on the Difference Relating to Immunities from Legal Process of a Special Rapporteur of
    • the Commission of Human Right, 1999); ECHR, Waite and Kennedy v Germany, 1998, par. 63
    • • International organisations and its officials enjoy immunities from:
    • – the jurisdiction of national courts (e.g. The Dutch Supreme Court, Mothers of Srebrenica, 13 April 2012)
    • – tax liability
    • – criminal and civil liability
    • – only for acts they committed in the process of exercising their official functions, and not for private acts
  35. Subjects of the principle of international responsibility
    • • States
    • • International organisations
    • • Individuals
  36. The principle of state responsibility
    • • `It is a principle of international law … that any breach of an engagement involves an obligation to make
    • reparation’ (PCIJ, Chorzow Factory case, 1928)
    • • Any violation by a state of international law gives rise to state responsibility and consequently to the duty of reparation
  37. Sources of international law on a state responsibility
    • • Customs
    • • The ILC Articles on Responsibly of States for Internationally Wrongful Acts adopted by the International Law
    • Commission in 2001(this is not a treaty)
    • • Treaties entailing state responsibility provisions (lex specialis): Treaty on the Functioning of the European Union, The
    • World Trade Organisation Treaty, European Convention on the Protection of Human Rights
    • Responsibility of a state for its internationally wrongful acts
    • • Every internationally wrongful act (violation of treaties, customs, or decisions of international tribunals) of a state
    • entails the international responsibility of that state (Art. 1 of the ILC Articles on Responsibility of States for
    • Internationally Wrongful Acts, 2001)
  38. Conditions for the establishment of a state responsibility under international law
    • - ICJ, La Grand, 2001, Art. 1-2 of the Responsibility Articles -
    • • The conduct constitutes a breach of an international obligation of the state
    • • The conduct consisting of an action or omission is attributable to the state under international law
    • Existence of a breach of an international obligation (Art. 12 of the Responsibility Articles)
    • • There is a breach of an international obligation by a state when an act of that state is not in conformity with what is
    • required of it by that obligation, regardless of its origin or character
    • When a violation of international law can be attributed to a state
    • When the responsibility cannot be attributed to a state
  39. Consequences of incurring state liability
    • • An obligation to make an end to the violation of international law (to cease the wrongful acts) (ICJ, Nicaragua case,
    • 1986, para. 12; ICJ, US Diplomatic and Consular Staff in Tehran Case, 1980, para. 3a)
    • • An obligation to provide the guarantee of non-repetition (ICJ, La Grand, 2001, para. 124; Art. 30 of the Responsibility
    • Articles)
    • • An obligation to re-establish the situation compatible with international law in relation to the injured state (ICJ,
    • Nicaragua case, 1986, paras. 13-15; ICJ, US Diplomatic and Consular Staff in Tehran Case, 1980, paras. 5-6)
    • • An obligation to make a reparation (PCIJ, Chorzow Factory, 1927)
  40. FORMS OF REPARATION FOR A WRONGFUL ACT COMMITTED BY A STATE
    • • The violation of international law obligations entails the duty to make good damages caused by the breach in question,
    • i.e. the duty to provide reparation (Chorzow Factory, 1927, PCIJ)
    • • The injured state is entitled to obtain from the state which has committed an internationally wrongful act full reparation
    • in the form of:
    • • Restitution in kind (ICJ, Legal Consequences of the Reconstruction of a Wall in the Occupied Palestinian Territory,
    • 2004; Art. 35 of the Responsibility Articles)
    • – the re-establishment of the situation existing before the breach
    • • Compensation (ICJ, Legal Consequences of the Reconstruction of a Wall in the Occupied Palestinian Territory, 2004;
    • International Tribunal for the Law of Sea, Saiga (No 2) Saint Vincent and the Grenadines v Guinea, 1999, para. 172;
    • Art. 36 of the Responsibility Articles)
    • – pecuniary compensation which covers any `economically assessable damage’ (i.e. damage which is susceptible of
    • being evaluated in economic terms) sustained by the injured state, and may include interest and loss of profits
    • • There must be the causal link between the injury suffered and wrongfulness of a state act
    • – legal restitution (laws violating international law must be repealed or rendered ineffective by national and not
    • international courts and wrongful court decisions must be revised)
    • • Satisfaction (apology) (ICJ, Bosnia v YU, 2007 para. 463; Art. 37 of the Responsibility Articles)
    • – covers the non-material damage to the state, i.e. the moral injuries suffered by the offended state in its honour, dignity and prestige
  41. Parties entitled to invoke the principle of state responsibility under international law
    • • Injured states
    • • Injured individuals (ECHR, International Convention for the Settlement of Investment Disputes 1964)
    • • International organisations (ICJ, Reparation for Injuries, 1949)
  42. The injured state
    • • A sate can claim damages it suffered as a result of a wrongful act committed
    • – against itself (direct responsibility)
    • – against its citizens (indirect responsibility in the context of diplomatic protection)
    • • In a case of a breach of an international obligation
    • – the default state can be held responsible by the state(s) which rights are violated
    • • In a case of a serious breaches of international law (Art 40 and 41 of ILC Articles) or erga omnes obligations such as
    • the prohibition of aggression, slavery, torture, violation of human rights and the right to self-determination, etc.
    • – the default state can be held responsible by any state ((ICJ Barcelona Traction, 1970, ICTY Furundzija, 1998, ICJ,
    • Legal Consequences of the Reconstruction of a Wall in the Occupied Palestinian Territory, 2004, para. 159; Art. 48
    • of the Responsibility Articles)
    • – A serious breach of international law by states does not entail criminal responsibility (ICJ, Genocide case, 2007,
    • para. 170)
  43. International responsibility of international organisations
    • - ILC Draft Articles on the Responsibility of International Organisations (DARIO), from 3 June 2011 -
    • • Organisations which do not poses international legal personality (Organisation for Security and Cooperation in Europe)
    • do not incur international responsibility
    • • Organisations which poses international legal personality incur international responsibility
    • • The international responsibility depends upon the question whether the organisation by virtue of its internal rules
    • expressly envisages or excludes liability of member states
  44. International (criminal) responsibility of individuals
    • • Based upon international customary law
    • – norms which violation affects the whole international community (genocide, crimes against humanity, war crimes,
    • torture)
    • • Based upon international multilateral treaties
    • – International Criminal Court in force since 2003
    • – The 1984 UN Treaty preventing torture
    • – 1949 Geneva humanitarian law conventions
    • – The Conventions of prevention of terrorism (hostage taking, terrorist bomb attracts, financing of terrorism)
    • – The UN Security Council resolutions on the prevention
  45. THE PEACEFUL SETTLEMENT OF DISPUTES
    • Dispute - definition
    • • ‘a specific disagreement concerning a matter of fact, law or policy in which a claim or assertion of one party is met with
    • refusal, counter-claim or denial by another’
    • – (Merrills, International Dispute Settlement, 4th.ed, p.1)
  46. The enforcement of international law by states by non-forceful means
    • • Retorsion
    • – lawful acts adopted by states directly injured in retaliation for the commission of an earlier illegal act by another state
    • (the severance of diplomatic relations, the discontinuation of financial aid)
    • • Reprisal
    • – illegal acts (but can be justified) adopted by states directly injured in retaliation for the commission of an earlier illegal
    • act by another state (the non-compliance with treaty provisions; freezing of assets of foreign states )
    • • Self-defence
    • • Sanctions
    • – retorsions and reprisals adopted by states which are not directly injured
  47. Article 2(3) UN Charter
    • • States shall settle their international disputes by peaceful means in such a manner that international peace and
    • security, and justice, are not endangered
    • • It does not impose an obligation upon states to settle their disputes (except those which endanger international peace
    • and security [Art. 33 UN Charter])
    • • It is applicable to all states and not only to the UN members (ICJ, Legality of the use of force case, 1999)
    • • Reaffirmed in the 1970 UN Friendly Relations Declaration
    • • If states fail to resolve by peaceful means the dispute, the continuation of which endanger the maintenance of
    • international peace and security, the parties under Article 37(1) of the UN Charter shall refer it to the UN Security
    • Council – it imposes an obligation to settle disputes the continuation of which endanger the maintenance of
    • international peace and security
  48. Consent of a state to settle a dispute with another state by a third party
    • • Rule:
    • – A state cannot be compelled to submit a dispute with another state to a third party for settlement unless it has given
    • its consent in some form or the other
    • • Exception:
    • – The obligation under Article 33 UN Charter to settle disputes occurring on the international plane which are likely to
    • endanger international peace and security
    • – It is applicable to states and other parties involved in international disputes which are not states (ethnic groups in
    • Bosnia, rival groups in Sudan, companies having internationalised contracts [e.g. Texaco v Libya Arbitration, 1977])
  49. Instruments for pacific settlement of disputes
    (Art. 33 UN Charter)
  50. Methods for dispute settlement involving the use of a third party with non-binding effect
    • • Mediation (good offices)
    • – one person participate (but not submits a settlement proposal)
    • – in the negotiations between the parties to a dispute
    • • Conciliation
    • – a commission submits a settlement proposal for
    • – a conflict requested to be settled by the commission by the parties to a dispute
  51. Characteristics of judicial settlement
    • • a settlement based upon international law
    • • rendered by an impartial third party
    • • binding for the parties to a dispute
    • • proliferation of international courts (25 at present) – possibility of forum shopping (although only ICJ, ICC and the
    • Permanent Court of Arbitration are courts of general jurisdiction)
    • – The MOX case (concerning the complain of Ireland against the UK relating to the radioactive discharges of the MOX
    • plant in Sellafield) came before:
    • • International Tribunal for the Law of the Sea (ITLOS) (MOX case, Order of 3.12.2001)
    • • Arbitral tribunal under the UN Law of the Sea Convention (UNCLOS) (MOX case, Order No. 3 of 24.6.2003)
    • • Arbitral tribunal under the Convention for the Protection of the Marine Environment of the North-East Atlantic
    • (OSPAR) (MOX case, Judgement of 2.7.2003)
    • • Court of Justice of the European Union (Case C-459/03)
    • • The Permanent Court of Arbitration (MOX Plant Case, 2008)
    • • there is no hierarchy between international courts
    • – Art 92 UN Charter: The International Court of Justice shall be the principal judicial organ of the United Nations…
    • – Art 95 UN Charter: Nothing in the present Charter shall prevent Members of the United Nations from entrusting the solution of their differences to other tribunals by virtue of agreements already in existence of which may be concluded in the future
    • • decisions of one international court are not binding upon other courts
  52. Arbitration
    • • The establishment of arbitrage tribunals
    • • The parties to a dispute conclude an agreement (compromis) stipulating
    • – the mandate for arbitrators
    • – the law to be applied
    • – the procedure and rules to be deployed (Model Rules on Arbitral Procedures drawn by the International Law
    • Commission)
    • – E.g. Arbitral tribunal under the UN Law of the Sea Convention
  53. Access to the ICJ (Article 35 ICJ Statute)
    • • UN members
    • – Serbia was not a party to the ICJ Statue in the period 1992-2000 when it was suspended (ICJ, Legality of the use of
    • force case, Serbia and Montenegro v Belgium, 2004), but Serbia had a capacity to be a party to proceedings before
    • the Court in the period 1992-2000 as a party to the 1948 Prevention of Genocide Convention which Art. IX confers
    • the jurisdiction to the ICJ in the disputes arising under the Convention (ICJ, Bosnia v Serbia and Montenegro, 1993
    • and 2007)
    • • Non-UN members (Albania in Corfu Channel Case, ICJ, 1949)
    • • Special provisions contained in treaties in force
    • – prior to 1945 (ICJ, Legality of the use of force case, Serbia and Montenegro v Belgium, 2004)
    • – any treaty in force (ICJ, Bosnia v Serbia and Montenegro, 2007)
  54. The jurisdiction of the International Court of Justice
    • - principal judicial organ of the UN (Art. 92 UN Charter) -
    • • Jurisdiction in contentious cases
    • – only states can be parties before the Court (Art. 34(1) of the Statute)
    • – all the UN member are ipso facto parties to the Court Statute (Art. 93 UN Charter)
    • – ICJ has jurisdiction even when the matter is simultaneously dealt with by the UNSC (ICJ, Bosnia v Serbia and
    • Montenegro, 2007)
    • • The jurisdiction to give an advisory opinion (Art. 96 UN Charter and Art. 65 the ICJ Statute)
    • – not open to states, only to 6 UN bodies and 16 UN specialised agencies concerning legal questions arising within
    • the scope of their activities (ICJ, The Legality of the Use of Nuclear Weapons, 1996)
    • – The General Assembly and the Security Council of the UN have competence to request an opinion on any legal
    • question, whether or not arising within the scope of their activities
  55. The jurisdiction of the International Court of Justice in contentious cases
    • • The principle of consent (Arts. 35 and 36 ICJ Statute)
    • – international law does not recognise the concept of compulsory jurisdiction
    • – the Court is empowered to decide disputes between states only when the involved parties recognise its jurisdiction in
    • the matter at hand (ICJ, Corfu Channel, 1948; ICJ, Libya v Malta, 1984)
    • • Methods for the recognition of the Court jurisdiction by the parties to a dispute
    • – Ad hoc: by virtue of a specific agreement (compromis) (Art. 36(1) ICJ Statute)
    • – Ex ante: by virtue of treaties (Compromissory clause) (Art. 36(1) ICJ Statute)
    • – Optional clause (Art. 36(2) ICJ Statute)
    • – Forum prorogatum
  56. The Court jurisdiction on the basis of a specific agreement
    • • Special agreement between Indonesia and Malaysia concerning sovereignty over Pulau Ligitan and Pulau Sipadan
    • • Article 1 Submission of Dispute
    • • The parties agree to submit the dispute to the Court under the terms of Article 36, paragraph 1, of its Statute
    • • Article 2 Subject of the Litigation
    • • The Court is requested to determine on the basis of the treaties, agreements and any other evidence furnished by the
    • parties, whether sovereignty over Pulau Ligitan and Pulau Sipadan belongs to the Republic of Indonesia or to
    • Malaysia
  57. The Court jurisdiction on the basis of a treaty provision
    • • `Disputes between the contracting parties relating to interpretation, application or fulfilment of the present convention… shall be submitted to the International Court of Justice at the request of any of the parties to the dispute (Art. 9 of the Convention for the prevention of genocide, ICJ, Bosnia v Yugoslavia, 1993)
    • The Court jurisdiction on the basis of a facultatieve clausule
    • • I declare that the Government of Canada accepts as compulsory ipso facto and without special convention, on condition of reciprocity, the jurisdiction of the International Court of Justice, in conformity with paragraph 2 of Article 36 of the Statute of the Court … over all disputes arising after the present declaration with regard to the situations or facts
    • subsequent to this declaration (ICJ, Spain v. Canada, 1998)
  58. Reservations to the granted jurisdiction
    • • as to the subject matter
    • – .. other than d) disputes arising out of or concerning conservation and management measures taken by Canada ..
    • and the enforcement of such measures (ICJ, Spain v Canada, 1998)
    • • as to the time limit
    • – Yugoslavia recognizes the jurisdiction of the ICJ as from 26 April 1999
    • Forum prorogatum (the recognition of the Court jurisdiction by express consent or by consent inferred from
    • conduct)
    • • A state declares no objection regarding the Court jurisdiction in a case bought unilaterally by another state before the
    • Court (ICJ, Corfu Channel, 1949)
    • • A state does not invoke a reservation made as regards to a compromissoire clausule or a facultative clausule
  59. The effect of an ICJ judgement
    • • A judgement of the ICJ is binding for the parties to a dispute (Art. 94(1) UN Charter)
    • • The UN Security Council is empowered to adopt measures against a party which does not comply with a judgement
    • rendered by the Court (Art. 94(2) UN Charter)(example of non-compliance not followed by an UN Security Council
    • action: ICJ, Nicaragua, 1986)
  60. International criminal law
    • Sources of international law obligations of individuals
    • • Customs
    • – the prohibition of piracy
    • – the prohibition of slave trade
    • – crimes against a peace
    • – crimes against humanity
    • – grave breach of international humanitarian law
    • • Treaties
    • – the four Geneva Read Cross conventions of 1948 and the 1977 protocols I and II attached thereto
    • – The Hague Convention (IV) Respecting the Laws and Customs of War on Land and the Regulations annexed thereto
    • of 1907
    • – The Genocide Convention of 1948
    • – The 1984 UN Treaty prohibiting torture
    • – the treaties concluded within the UN framework concerning terrorist actions against civil aircrafts and ships
  61. International crimes
    • • Aggression
    • – the planning, preparation, initiation or execution, by a person in position effectively to exercise control over or to direct the political or military action of a state, of an act of aggression which, by its character, gravity and scale, constitute a
    • manifest violation of the UN Charter (Resolution 6 of the 2010 ICC Kampala Review Conference)
    • • Crimes against humanity
    • – murder, extermination, enslavement, deportation, and other inhumane acts committed against any civilian population,
    • before, or during the war, or persecutions on political, racial or religious grounds … whether or not in violation of the domestic law of the country where perpetrated (Art. 6(c) of the Nuremberg Statute)
    • – There needs to be an act committed as part of a widespread or systematic attack directed against any civilian
    • population, with knowledge of the attack (Art. 7 of the ICC Statute
    • – apply to civilians and not combatants
    • – no need for the link with armed conflict
    • – no requirement of discriminatory motive
    • • War crimes
    • – Violation of the laws or customs of war which include, but are not limited to murder, ill-treatment or deportation to slave labour or for any other purpose of civilian population of or in occupied territory and of prisoners of war or persons on the seas, killing of hostages, plunder of public or private property, wanton destruction of cities, or devastation not justified by military necessity (Art. 6(b) of the Nuremberg Charter and Art. 8 of the ICC Statute)
    • • Genocide
    • – (a) killing, (b) causing serious bodily or mental harm, (c) deliberately inflicting physical instruction, (d) preventing birth
    • and (d) forcing transfer of children of a group (national, ethnical, racial or religious) (Art. 2 of the 1948 Genocide
    • Convention)
  62. Legal instances empowered to try individuals for the violation of international law for international crimes
    • • National courts on the basis of the universality principle for the attribution of jurisdiction
    • • International judicial instances
  63. International criminal courts
    • • Ad hoc
    • – Nuremberg
    • – Tokyo
    • – Rwanda, Yugoslavia
    • • established by the UN Security Council on basis of Chapter VII, Article 41 of the UN Charter (ICTY, Tadic, 1996,
    • para. 36)
    • • without consent of Rwanda and Yugoslavia
    • • apply international and no national law
    • – and Sierra Leone (sentenced Mr Charles Taylor for committing war crimes and crimes against humanity who became
    • the first former head of state convicted by an international tribunal since the Nuremberg), Cambodia and Lebanon
    • • established on the basis of the treaty concluded between the UN and Sierra Leone, Cambodia and Lebanon respectively
    • • with the consent of Sierra Leone, Cambodia and Lebanon respectively
    • • apply international and national law
    • – East-Timor and Kosovo tribunals established as a part of the UN temporary administration mandate
    • • Permanent
    • – International Criminal Court (The Statute of Rome of 17.7. 1998; in force since 2002)
  64. The distinction between the Yugoslavia/Rwanda tribunals and the International Criminal Court
    • • The Yugoslavia/ Rwanda tribunals
    • – established by the UN (Chapter VII of the Charter)
    • – ad hoc
    • – jurisdiction with respect to crimes committed before the entering into force of the Statutes of Yugoslavia and Rwanda
    • tribunals
    • – intended to prosecute citizens of Yugoslavia/Rwanda for crimes committed on their territory
    • – operates independently of national courts
    • – mandatory compliance powers vis-a-vis states (Art. 29 of the Yugoslav Tribunal Statute and Blaskic, 1998)
    • – perpetrator focused, no redress for victims
    • – no reconciliation objective
    • • The International Criminal Court
    • – established on the basis of a multilateral treaty (where the powers of the court are determined by the states parties to
    • the Statute)
    • – permanent
    • – jurisdiction limited to crimes of genocide, war crimes, crimes against humanity and aggression (not yet activated) )
    • committed after entering into force of the ICC Statute
    • – intended to prosecute (1) citizens of the parties to the statute or non- parties citizens (2) for crimes committed on the
    • territory of the parties to the Statute
    • – intended to operate in co-operation with national courts (the principle of complementarity- it prosecutes only if parties
    • are not able or not willing to prosecute)
    • • although the prosecutor can initiate an investigation on his/her own motion after the approval of the pre-trial
    • chamber (Arts. 15(3) and (4) ICC Statute) or on the request of the UNSC (acting under Ch. VII UN Charter [ e.g. an
    • arrest warrant for the Sudanese President Al-Bashir (Art. 13 ICC Statute)
    • – Rejects any immunity (Art. 27 ICC Statute)
    • – no power vis-à-vis third parties unless authorised by a UNSC decision taken under Chapter VII of the UN Charter (
    • – victim focused, the Trust fund for awarding reparations to victims
    • – reconciliation objective
    • – E.g. Case The Prosecutor v. Germain Katanga (Situation in Democratic Republic of the Congo)
  65. The compulsory criminal jurisdiction
    • established by treaties
    • (quasi-universal jurisdiction)
    • • Parties to the particular treaties (e.g. the UN Torture Convention 1984, treaties related to hostage taking, currency counterfeiting, hijacking and drugs trafficking, the Red Cross Geneva Convention I 1949 [Art. 49]; the destruction of submarine cables, slavery; the 1997 UN treaties concerning prevention of terrorist bomb attacks [Art. 8(1)] and financing of terrorist activities) are under the obligation to exercise the compulsory jurisdiction -> the principle aut dedere aut judicare (extradite or prosecute)-> a state, the party to the particular treaty, is under an obligation to
    • extradite or prosecute a person suspected of offences prohibited by the treaty who find themselves on its territory
    • – an absolutist obligation to prosecute of the custodial state (ICJ, Obligation to Prosecute or Extradite (Belgium v
    • Senegal), 2012, para. 95)
    • Case Ruto and Sang, ICC-01/09-01/11
  66. International law and the use of force by states
    • The prohibition of the use of force
    • • Ius cogens (ICJ, Nicaragua, 1986, paras. 206 and 209)
    • • Art. 2(4) UN Charter
    • – all members shall refrain in their international relations from the threat or use of force against the territorial integrity
    • or political independence of any state, or in any other manner inconsistent with the purposes of the United Nations
    • – elaborated in the 1970 UN Friendly Relations Declaration
    • – not clear whether the term ‘force’ includes only armed force or also economic and political coercion, although the UN
    • General Assembly resolution 3314 (XXIX) of 14 December 1974 on the definition of aggression which is accepted by the International Criminal Court is limited to acts of armed force (military violence), the preamble to the UN Charter does refer to the need to ensure that armed force should not be used except in the common interest, while Art. 51 UN Charter, dealing with the right to self-defence, specifically refers to armed force
    • • Treat to use the force is not aggression
    • • It is doubtful whether political and economic pressure constitute a violation of Art. 2(4) UN Charter
    • – prohibits the interstate, not intrastate use of force
  67. The exception to the Art. 2(4) UN Charter prohibition of use of force by states in international relations
    • • The right to self-defence
    • • The use of force by the United Nations
    • Right to self-defence
    • • International customary law (American Secretary of State, Caroline case, 1837)
    • – ‘a necessity of self-defence, instant, overwhelming, leaving no choice of means and no moment for deliberation’
    • • Nothing in the present Charter shall impair the inherent right of individual or collective self-defence if an armed attack occurs against a member of the UN, until the Security Council has taken measures necessary to maintain international
    • peace and security (Art. 51 UN Charter)
    • • Restrictions
    • • Restricted to the situation where an armed attack (broadly formulated in order to include an attack on the state
    • property or officials [citizens?] by military means on the territory of foreign states or an terrorist attack [SCRes/1368
    • (2001]) emanates from another state, as opposite to groups of insurgents operating from other states but not under the
    • control of the host state (ICJ, Congo v Uganda, 2005, paras. 146-147, 161-1650 (is the Congo v. Uganda ruling reconcilable with the UNSC endorsement of the US intervention in Afghanistan (UNSC Res. 1373 (2001))
    • • Only the most grave forms of the use of force constitutes an armed attack (ICJ, Nicaragua, 1986, par. 195; Oil
    • Platforms, 2003, par. 51)
    • • Applicable to the situations of aggression as defined in Article 3(g) of the UN General Assembly resolution 3314
    • (XXIX) of 14 December 1974 (ICJ, Congo v Uganda, 2005)
    • • Permitted only till the Security Council takes action
    • • Conditions:
    • – necessity (ICJ, Nicaragua, 1986, par. 194; Oil Platforms, 2003, par. 77; The Legality of the Threat or Use of Nuclear
    • Weapons, 1996)
    • – proportionality (ICJ, Nicaragua, 1986, par. 194, Oil Platforms, 2003, par. 77; The Legality of the Threat or Use of
    • Nuclear Weapons, 1996)
    • – the right of self defence is not applicable to threats originating within the territory under the control of a state (ICJ,
    • Construction of a Wall, 2004
    • – the duty to observe international humanitarian law
    • – the SIRUS principle (to refrain from causing ‘superfluous injury and unnecessary suffering) – applicable only to
    • combatants
    • – the principle of distinction between combatants and not-combatants (civilians are never a legitimate target)
  68. The role of the UN Assembly in maintaining international peace and security
    • • It may make recommendations to the UN members and the UN Security Council, provided the Council is not itself dealing with the same matter (Articles 10,11,12 and 14 UN Charter)
    • • It has asserted its right to deal with a threat to or breach of the peace or act of aggression if the UN Security Council
    • fails to act because of the exercise of the veto by a permanent member (Resolution 377(V), 1956; the Uniting for
    • Peace Resolution 498(V) of 1951; ICJ, Certain Expenses, 1962)
    • – It acted during the 1956 Suez crisis
    • – No action during the 2003 Iraq crisis and the 2009 incursion of Israel in Gaza
    • • It has no power to authorise the use of force (ICJ, Certain Expenses, 1962)
  69. The use of force by the UN (Chapter VII UN Charter)
    • • The Security Council is primary (but not exclusively) responsible for the maintenance of international peace and
    • security (Art. 24(1) UN Charter)(ICJ, Certain Expenses, 1962, The Palestinian Wall, 2004 ), although it does not have
    • the obligation to act
    • • The Security Council (SC) has the absolute discretion to determine the existence of any threat to the peace (Art. 39
    • UN Charter): it interprets ‘the threat to the peace’ very widely (not only as use of force).
    • – Internal crisis can be a threat to the peace (the last sentence of Art. 2(7) UN Charter, the Haiti Resolution 1840
    • (2008), The 2005 Sudan Resolution, the Yugoslavia Tribunal Resolution 827 (1993) in conjunction with ICTY, Tadic,
    • 1995, paras. 29, 30 and 77; Resolution 1973 of 2011 on Libya)
    • • The determination of the party responsible for the breach of peace (Art. 39 UN Charter. The Security Council is
    • authorised to impose measures to restore a peace (Art. 40 UN Charter)
    • – measures not involving the use of force (economic sanctions, arms embargo (e.g. Afghanistan, Libya, Liberia,
    • Ethiopia, Eritrea, Sudan, North Korea, ICTY) (Art. 41 UN Charter)
    • – smart sanctions against individuals suspected to be terrorists [ UN SC Res. 1822 (2008)
    • – The SC requires states to frees assets of individuals listed by the Sanctions Committee
    • – Individuals may ask the Ombudsman to be delisted [UN SC Res. 1904 (2009), 1989 (2011) and 2083 (2012)]
    • – measures involving the use of force (e.g. Iraq 1990 and Res. 1546 (2004) and Res. 1511/2003) (Art. 42, Chapter VII
    • UN Charter)
    • • authorisation granted by the use of the formulation ‘all necessary means’
    • • explicit and specific authorisation necessary including exact time limit of operations
    • • the UN authorises (delegates tasks) states or regional organisations (‘coalitions of the willing and able’) to act on
    • its behalf in the absence of the Article 43 UN Charter agreements. The participating states bear the costs of
    • operations. UN members are not under obligation to act.
    • • Decisions of the Security Council taken under the Chapter VII UN Charter are binding for all members (Art. 25 UN
    • Charter) and all states (UNSC Res. 757(1992) imposing sanctions upon YU
    • – the provisions in Art. 25 UN Charter are not limited to the enforcement action under Chapter VII. Whether a
    • particular resolution adopted under Art. 24 UN Charter actually constitute a decision binding for all states outside
    • Chapter VII is a matter of analysis in each case
  70. Legal limits to the power of the Security Council
    • • Duty to act in accordance with the purpose and principles of the UN Charter listed in Articles 1 and 2 of the UN Charter
    • (Art 24(2) UN Charter, ICJ, Conditions of Admission of a State to Membership in the UN, 1948)
    • • Duty to observe general international law
    • • Duty not to violate norms of jus cogens (Art. 53 of the Vienna Convention on the Law of Treaties)
    • • Human rights obligations (The Court of Justice of the European Union (CJEU) and the General Court of the European
    • Union (GCEU) declared invalid the EU laws adopted pursuant the SCRes. 1267 (1999),1333 (2000) and 1390 (2002)
    • because they infringe the right to effective judicial protection, the right to be heard, the right of defence and the right to
    • private property (CJEU, C-402/05P and C4115/05P Kadi, 2008; GCEU, T-85/09 Kadi II, 2010, , upheld by the CJEU
    • in judgment C-584, 593 and 595/10 P))
    • • Duty to observe the general principles of international law of good faith and non-abuse of rights
    • Peace operations
    • (in 2013 there are 16 UN peace keeping operations)
    • • The UN Charter does not contain any express provision for peace operations
    • • a practical solution to the problem of the lack of the UN armed forces referred to in Arts. 42 and 43 UN Charter
    • • Legal basis: operations (Chapter Six and a Half)
    • – Arts. 10-11, 14, 22 (UN General Assembly) (right to establish a subsidiary organ for the performance of its functions)
    • – Arts. 29, 34, 36-39 (UN Security Council) (right to establish a subsidiary organ for the performance of its functions)
    • • Forms:
    • – peace keeping
    • – robust peace keeping including enforcement
    • – UN administration
    • • Conditions:
    • – specific UN authorisation given to states participating in peacekeeping operation in each and every case
    • – the time frame to be precisely identified
    • – UN are only partially responsible for breach of law committed by peacekeepers
    • – UN entitled to claim damages to injuries caused to its personnel
    • – peacekeepers are to respect all local laws
  71. Peace operations
    • (in 2013 there are 16 UN peace keeping operations)
    • • The UN Charter does not contain any express provision for peace operations
    • • a practical solution to the problem of the lack of the UN armed forces referred to in Arts. 42 and 43 UN Charter
    • • Legal basis: operations (Chapter Six and a Half)
    • – Arts. 10-11, 14, 22 (UN General Assembly) (right to establish a subsidiary organ for the performance of its functions)
    • – Arts. 29, 34, 36-39 (UN Security Council) (right to establish a subsidiary organ for the performance of its functions)
    • • Forms:
    • – peace keeping
    • – robust peace keeping including enforcement
    • – UN administration
    • • Conditions:
    • – specific UN authorisation given to states participating in peacekeeping operation in each and every case
    • – the time frame to be precisely identified
    • – UN are only partially responsible for breach of law committed by peacekeepers
    • – UN entitled to claim damages to injuries caused to its personnel
    • – peacekeepers are to respect all local laws
  72. Peace keeping
    • • Falls under Chapter VI UN Charter (ICJ, Certain expenses, ICJ, 1962)
    • • Tasks: the monitoring a cease-fire, the controlling a buffer zone (e.g. Suez 1956, Sinai, 1956-1967)
    • • Conditions:
    • – the consent of the parties
    • – impartiality
    • – the non-use of force except in self-defence
    • – the command rests with the UN
    • – the financing to be provided by the UN
  73. Robust peace keeping
    • • Falls under the Chapter VII UN Charter
    • • Armed forces are authorised to use (limited) force in order to carry out their tasks (to enforce a peace)
    • • Armed forces are granted the `use of all necessary means’ mandate by the Security Council
    • • The consent of the parties not required
    • • Tasks: enforcement of a non-fly zone in Bosnia, the delivery of humanitarian relief, the protection of ‘safe areas’
    • • The command rests with the participating states not the UN when the force is used
    • • The financing to be provided by the participating states, not the UN
    • • Examples: Bosnia, Haiti, Sierra Leone, Afghanistan
  74. The UN administration
    • • Falls under the Chapter VII UN Charter
    • • Armed forces are authorised to use (limited) force in order to carry out their tasks (to enforce a peace)
    • • Armed forces are granted the `use of all necessary means’ mandate by the Security Council
    • • The consent of the parties not required
    • • Tasks: fulfilling all the functions of a state: fiscal management, judicial affairs, municipal services
    • • The command rests with the participating states not the UN
    • • The financing to be provided by the participating states, not the UN
    • • Examples: Kosovo, East-Timor, Liberia
    • Maintenance of international peace through regional arrangements
    • • On the basis of pacific settlement of local disputes (Art. 52(1) UN Charter)
    • • With use of force (only with the authorisation granted by the Security Council (Art. 53)(The mission of the African
    • Union in Darfur, Sudan, NATO in Bosnia, Kosovo and Libya)
    • • Examples of the use of force by regional organisations without the UN authorisation, but with the consent of the
    • concerned states
    • – Commonwealth of Independent States in Abkhazia
    • • Examples of the use of force by regional organisations without the UN authorisation or the consent of the concerned
    • states:
    • – OAS (Organisation of American States) in Dominican Republic in 1965
    • – ECOWAS (Economic Community of West African States) in Liberia in 1990 and in Sierra Leone in 1997
    • – NATO in Kosovo 1999
    • – the UN-African Union mission in Darfur (SCRes 1769 of 31.07.2007)
    • – EU Joint Action 2008/124/CFSP on its EULEX mission in Kosovo
  75. Attribution of responsibility to the UN and a troop-contributing state in UN peacekeeping missions
    • • ECtHR, Behrami and Behrami v France, 2007: the UN is liable for failing to clear mines
    • • Criterion for the attribution: ultimate authority and control (para. 133) (based upon the position that peacekeeping
    • troops are subsidiary organs of the UN in accordance with the doctrine of delegation of powers which stipulates that
    • the principal, the UN, delegates powers to a agent, a troop-contributing state while the principal retains the ultimate
    • control) (The Hague Court, Srebrenica, 10.09.2008, par. 4.17
    • – ECtHR, Al-Jedda, 2011 both criteria (the ultimate authority and control criterion [para. 84] and the effective control criterion[para. 81]) are applied but no clear pronouncement on dual attribution is given
    • • The Hague Court of Appeal, Nuhanovic v NL, 5 July 2011 (upheld by NL Supreme Court, NL v Nuhanovic, 6
    • September 2013 : NL liable for not protecting civilians during its participation in an UN peacekeeping mission in
    • Bosnia
    • • Criterion for the attribution: effective control (para. 5.8) subject to the test of ‘appreciation in concreto of the ability to
    • prevent (para. 5.8) (Art. 7 the ILC Draft Articles on the Responsibility of International Organisations 2011)
  76. The international protection of human rights
    • Violation of human rights in the world
    • Development of international human rights
    • Definition of international human rights
    • • Fundamental international rights attributable to any person which must be guaranteed by the state under which
    • jurisdiction an individual finds him(her)self
    • • All human rights are universal, indivisible, interdependent and interrelated and the international community must treat
    • human rights globally in a fair and equal manner, on the same footing and with the same emphasis (UN General
    • Assembly Resolution 63/176 of 20.03.2009)
    • – Is there universality of human rights? Are human rights historical and social constructs?
    • – States are in practice only bound to observe human rights:
    • • when they are parties to human rights treaties (subject to the right to reservations) and
    • • when particular human rights are part of international customs (such as non-discrimination)
    • - International human rights are primary enforceable at national level and only subsidiary on international level
    • Jus cogens status of some human rights
    • • Right to life (although Art. 2 ECHR provides for exceptions) ?
    • – Article 2 – Right to life
    • – Everyone's right to life shall be protected by law. No one shall be deprived of his life intentionally save in the
    • execution of a sentence of a court following his conviction of a crime for which this penalty is provided by law.
    • – Deprivation of life shall not be regarded as inflicted in contravention of this article when it results from the use of
    • force which is no more than absolutely necessary:
    • • in defence of any person from unlawful violence;
    • • in order to effect a lawful arrest or to prevent the escape of a person lawfully detained;
    • • in action lawfully taken for the purpose of quelling a riot or insurrection.
    • • Prohibition of torture (ICTY, Furundzija, 1998, ECHR, Lorse v NL, 2003; Art. 3 ECHR)
    • • Prohibition of genocide (ICJ, Bosnia v YU, 2007)
    • • The right to fair trial stipulated in Art. 14 ICCPR (The Human Rights Committee, General Comment No 32 [CCPR/C/
    • GC 32 (2007)]), para. 6.
  77. Promotion of human rights and the international community
    • • The promotion and protection of human rights is a legitimate concern of the international community (ICJ, East Timor
    • Case, 1995)
    • • A state may be responsible under international law for acts done in its own territory to its own citizens which violate
    • international human rights standards
    • • Art. 2(7) UN Charter which provides that ’nothing contained in the present Charter shall authorise the United Nations
    • to intervene in matters which are essentially within the domestic jurisdiction of any state’ has not inhibited the UN in its
    • attempts to develop a comprehensive code of human rights (ICCPR, ICESCR, etc)
    • • The UN security Council authorises the use of force in order to protect human rights (
    • Resolution 1973 (2011) on Libya, paras. 3 and 4; Resolution 1869 (2009) on Afghanistan)
    • UN as a promoter of international human rights
    • • The UN Charter (Art. 1(3): the purposes of the United Nations are:
    • – … to achieve international co-operation in … promoting and encouraging respect for human rights and for
    • fundamental freedoms for all without distinction as to race, sex, language, or religion
    • – Preamble: “to reaffirm faith in fundamental human rights, in the dignity and worth of the human person, in the equal
    • rights of men and women and of nations large and small”
    • – Articles 55 and 56 UN Charter also state that the UN is committed to promoting human rights
    • – The 1993 UN Vienna Declaration and Programme of Action confirms the UN resolute to promote human rights
  78. International human rights treaties
    • Categories of human rights
    • The distinction between classic (political) and economic, social and cultural rights
    • • Political rights
    • • do not require active state authorities (some of them do so such as the right to democratic election [Art. 25(b)], the
    • right to due process [Art. 14], the right to an effective remedy [Art. 2(3)] ICCPR)
    • • directly applicable: self-executive: capable of immediate application
    • • produce the obligation as to the result (obligation of result) (enforceable in national courts)(Art. 2 (3) ICCPR)
    • • Art. 2 (3) ICCPR embodies an immediate obligation to respect and ensure all the relevant rights
    • • Economic and social rights
    • • require active state authorities
    • • not directly applicable: not self-executive (although some are such as equal pay rights and the right to strike NL Hoge
    • Raad, The railway company strike, 1986)
    • – According to the ICESCR Committee articles 3, 7(a)(i),8, 10(3), 13(2)(a),(3)and (4) and 15(3) are capable of
    • immediate application by national organs
    • – European Committee of Social Rights (2009) Defence for Children v NL: Art. 31(2)(right to shelter) of the European
    • Social Charter is self-executive
    • • produce the obligation as to programmatic orientation (obligation of conduct)(not enforceable in national courts)(Art. 2
    • (1) ICESCR) although the ICESCR Committee states that Art. 2 (1) ICESCR imposes the obligation or result to states
    • to take steps in order to progressively realise the ICESCR rights
    • • Art. 2 (1) ICESCR requires the realisation over time, progressively: states are required to take the necessary
    • measures to the maximum of their available resources (rich countries should help poor ones: UN Declaration on the
    • Right to Development, 1986)
    • Derogations from human rights standards
    • (except from the prohibition of torture, ECHR Gaefgen v Germany, 2010)
    • • States may restrict human rights (e.g. Arts. 10 and 15 ECHR and 4 and 19 ICCPR)(ECHR, Lorse v NL, 2003, par. 58,
    • Pretty v UK, 2002) under the following conditions:
    • – the protection of public interest (legitimate objective)
    • – necessity (pressing social need, the public interest (legitimate objective) cannot be achieved by less restrictive
    • means
    • – the principle of proportionality (the public interest should be balanced against human rights)
    • – ‘Inherent in the whole of the Convention is a search for a fair balance between the demands of the general interest of
    • the community and the requirements of the protection of the individual’s fundamental rights’ (ECHR, Ocalan v.
    • Turkey, 2005, par. 88, Goodwin v. UK, 2002, par. 93 )
    • Horizontal effect of human rights standards: the concept of positive obligations
    • • The protection of human rights by states does not only entail that public authorities should abstain from arbitrary interference in individual rights. In addition to this primarily negative undertaking, there may be positive obligations which involve the adoption of measure designated to secure the respect of human rights between individuals
    • themselves (ECHR, Xand Y v. NL, 1985; Appleby v. UK, 2004, Pretty v UK, 2002)
    • • Via the doctrine of positive obligations, the ECHR becomes involved in balancing the competing private interests of the parties, which is essentially different from its original task, i.e. striking a balance between the general interest of the community and the interests of the individual
    • • The existence of the positive obligation of a state grants horizontal effect (relations between individuals) to international human rights standards
  79. Enforcement of international human right (monitoring procedures)
    • • Established under human rights treaties
    • – on national level
    • – on international level
    • • the report procedure
    • • the interstate procedure
    • • the investigation procedure
    • • the individual complaint procedure
    • • Established outside the framework of human right treaties
    • – UN Human Rights Council
    • • To address violations of human rights and make recommendations thereon
    • • 47 members elected by the UN Assembly
    • • Seats are distributed in regional basis (Africa (13), Asia (13), Eastern Europe (6), Latin America and Caribbean
    • states (8), and Western European and other states (7)
    • • The membership of states which systematically and on large scale infringe human rights can be suspended in
    • principle
    • – 1503 Complaints procedure
    • • Individuals can submit complaints
    • • It is not judicial procedure
    • • Individuals cannot use this procedure for the purpose of legal vindication of their human rights
    • – UN High Commissioner for Human Rights
    • – UN Council: Resolution 1756 (2007) on Congo, 1999/2000 Resolutions on East Timor promote a rights to selfdetermination
    • – Monitoring mechanism under OSCE (Organisation for Security and Cooperation in Europe)
  80. Procedure for the protection of human right within the UN system
    • Protection of international human rights before national courts: right to an effective remedy
    • • Direct effect of Art. 7 of the UN Treaty against discrimination of women in the Dutch legal order (para. 4.4.2)
    • • The State is under obligation to undertake positive measures to eradicate the SGP discrimination against women and
    • ensure passive voting rights for women (para. 4.6.1)
    • • The court balances women's rights against the freedom of religion but gives priority to the former (para. 4.5.2-5)
  81. The distinction between the ICCPR and the ECHR individual complaint procedure
    • • ICCPR
    • • the exhaustion of local remedies as a precondition for the initiation of procedure
    • • facultative, based upon a protocol attached to the ICCPR
    • • no time limit for commencing the procedure after the exhaustion of local remedies
    • • quasi-judicial
    • • claims brought before other instances are not admissible
    • • no means for the enforcement of the decision
    • • ECHR
    • • the exhaustion of local remedies as a precondition for the initiation of procedure
    • • compulsory, based upon the Treaty itself
    • • the existence of the time limit for commencing the procedure after the exhaustion of local remedies
    • • judicial
    • • claims brought before other instances are not admissible
    • • there are means for the enforcement of the decision (the Committee of Ministers)
  82. The scope of the application of the ECHR
    • • On the territories of the signatory parties (Art. 1 ECHR)
    • • Extraterritorially: ECHR states are to respect human rights obligation not only on their own territory but also when as a
    • consequence of lawful or unlawful military action they exercise overall effective control of an area outside its national
    • territory, whether it be exercised directly, through its armed forces, or through a subordinate local administration
    • (ECHR, Loizidou, 1995). The same applies to the ICCPR (ICJ, Legal Consequences of the Construction of a Wall in
    • the Occupied Palestinian Territory, 2004, par 109-112).
    • • However, the bombing of Yugoslavia by the NATO states did not lead to the application of the ECHR standards to
    • citizens of Yugoslavia: bombarded citizens do not fall under the jurisdiction (effective control) of the states engaged in
    • bombing (ECHR, Brankovic, 2001)
    • • Actions of a state carried out on behalf of the UN acting under Chapter VII of its Charter do not fall under ratione
    • personae of the ECHR (ECHR, Behrami and Behrami v France, 2007 ). The court does not apply its Bosphorus
    • equivalence doctrine in this case
    • – The Bosphorus equivalence doctrine states that where state action was taken in compliance with international legal
    • obligations following from its membership of an international organisation and where the relevant organisation protected fundamental rights in a manner which could be considered at least equivalent to that which the Convention provides, a presumption arose that the state had not departed from the requirements of the Convention. Such presumption could be rebutted, if in the circumstances of a particular case, it was considered that the protection of the Convention rights was manifestly deficient: in such a case, the interest of international cooperation would be outweighed by the Convention's role as a ‘constitutional instrument of European public order’ in the field of human rights (ECHR, Bosphorus, 2005, paras. 155-156)

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