International Law

Louv5x
Prof. Pierre dArgent

Course outline

Note : This outline is intended to help students when revising their MOOC notes. Titles of
videos and sections are in bold italics.

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Week 1: Introducing International Law

International Law and Humanity International Law around us International Law
and its various names: public / private international law; Law of Nations; jus gentium /
droit des gens / Vlkerrecht

A Foundational Moment Peace of Westphalia (1648) equal sovereignty of States

horizontal legal order Art. 2(1) UN Charter & Art. 2(7) UN Charter
From Westphalia to Versailles US independence (1776) Vienna Congress (1815)
Berlin Congress (1885) First World War (1914) Versailles Treaty (1919) League of
Nations International Law as a promise of peace / as an instrument of domination.
Form Versailles onwards Treaty of Paris (1928) Second World War UN Charter
(1945) Cold War decolonization (1960s) & self-determination of peoples: changing
the face and concerns of the international community, but keeping the horizontal structure
based on equal sovereignty of States end of Cold War & Iraq-Kuwait war (1990-91):
revival of the UN and decade of multilateralism 9/11 (2001) and Iraq war (2003): return
to unilateralism coexistence and cooperation as purposes of International Law.

International Law as a common language argumentative practice of States

International law as a professional language of justification.

Week 2: Setting the International Law Stage

Setting the Stage States as founders and masters of International Law States as only
subjects of IL evolution of international legal personality: International organizations,
human rights, international criminal law.

Personality under International Law distinction between actors of international

relations and subjects of international law having rights and/or obligations under IL as
threshold of legal personality (broad definition of (passive) legal personality) having the
capacity to make IL (narrow definition of (active) legal personality) degrees of legal
personality political dimension of the issue and social needs.

International Law Course outline 1

 I. STATES

The elements of Statehood centrality of States as subjects of international law 1933

Montevideo Convention customary law territory; earth portion; territorial sovereignty
= exclusion (Island of Palmas case (NL v. USA), 1928) population; nationality
effective and independent government (incl. capacity to enter into international relations);
freedom of States on nature and form of government (domestic affairs) and treaty
limitations constitutive elements or criteria for identification? Existence of State as
factual process social dimension.

State Recognition problem new States single use discretion political conditions
forms of recognition explicit implied diplomatic relations unilateral character
concerted recognition admission into the UN as collective recognition? (Palestine non-
member State status, 2012) Legal effect or political act? Declaratory character
constitutive of a relationship consolidating factual effectivity decentralized system.

Obligation not to recognize (Part 1) Stimson doctrine (Manchukuo, 1932) ICJ, Legal
Consequences for States of the Continued Presence of South Africa in Namibia (South West
Africa) notwithstanding Security Council Resolution 276 (1970), advisory opinion, 21
June 1971, 119 (obligation to recognize illegality and invalidity) ICJ, Legal
Consequences of the Construction of a Wall in the Occupied Palestinian Territory,
advisory opinion, 9 July 2004, 159 (obligation not to recognize the illegal situation)

Obligation not to recognize (Part 2) under customary IL in case of serious breaches of

peremptory norms: ARSIWA, Art. 41, 2, A/RES/56/83, 12 Dec. 2001 imposed by
Security Council (Southern Rhodesia [Res. 216 & 217 (1965); TRNC, 1974 [Res. 541
(1983)]; Iraq-Kuwait [Res. 662 (1990)]; Republika Srpska [Res. 787 (1992)]

Is unilateral secession prohibited? Examples Art. 2(4) UN Charter and protection of

territorial sovereignty: duty between States secession as a result of grave breaches and
obligation not to recognize The Kosovo advisory opinion (ICJ, Accordance with
international law of the unilateral declaration of independence in respect of Kosovo,
advisory opinion, 22 July 2010, 79)

When is unilateral secession a right? Prolegomena freedom v. entitlement to become

independent historical perspective recognition and co-belligerency of Polish and
Czechoslovak nations during WWI Covenant of the League of Nations Art. 22
Mandates Mandates A, B, C sacred trust of civilization

When is unilateral secession a right? Self-determination of peoples UN Trusteeship

system (Art. 73 UN Charter) Art. 1, 2, Art. 55 UN Charter: self-determination of
peoples meaning in 1945 evolution through decolonization peoples under colonial
rule and alien subjugation UNGA Res. 1514 (XV) 14 Dec. 1960 (Resolution 1514 (XV))
external dimension of self-determination: right of peoples to become an independent
State UNGA Res. 2625 (XXV) 24 Oct. 1970 self-determination as ultimate goal of
sacred trust of civilization (Art. 22 League Covenant): ICJ, Legal Consequences for
States of the Continued Presence of South Africa in Namibia (South West Africa)
notwithstanding Security Council Resolution 276 (1970), advisory opinion, 21 June 1971,
52-53 changing the face and concerns of international community erga omnes

International Law Course outline 2

obligation: ICJ, East Timor (Portugal v. Australia), 30 June 1995, 29; ICJ, Legal
Consequences of the Construction of a Wall in the Occupied Palestinian Territory,
advisory opinion, 9 July 2004, 88, 156.

The various meanings of the right of peoples to self-determination Art. 1(1) ICESCR
(1966) & ICCPR (1966) internal self-determination indigenous peoples UN
Declaration on indigenous peoples (A/RES/61/295 (2007)) minorities and domestic
subjugation internal v. external self-determination right to become a State outside
decolonization? remedial secession?: Supreme Court of Canada, Reference re Secession of
Quebec, [1998] 2 S.C.R. 217; silence of ICJ, Accordance with international law of the
unilateral declaration of independence in respect of Kosovo, advisory opinion, 22 July
2010, 80-84 German reunification: Treaty on the Final Settlement with respect to
Germany (Moscow, 1990).

State continuity and State succession examples concepts interruption (secession) or

not (continuity) of legal personality.

New States and borders automatic succession of States to border treaties examples
uti possidetis juris history notion as a rule, even absent an agreement, and outside
colonial context: ICJ, Frontier Dispute (Burkina Faso/Republic of Mali), 22 Dec. 1986,
20; Arbitration Commission of the Conference on Yugoslavia (Badinter Commission)
Opinion n3, 11 Jan. 1992 which internal line?

II. INTERNATIONAL ORGANIZATIONS

The concept of International Organization historical perspective role in global

governance association members act (often treaty) establishing IO IO v. NGO
functionalism examples permanent organs institutionalism / IO as bureaucracies &
role of law ILCs Draft Articles on the Responsibility of International Organizations (art.
2)

Legal personality issue of legal personality distinct from member absence of distinct
legal personality: IO as common organ separate legal personality: explicit or implied
silence of basic treaty: ICJ, Reparation for Injuries Suffered in the Service of the United
Nations, advisory opinion, 11 April 1949 objective approach of legal personality legal
capacity under domestic law (e.g. Art. 335 TFUE).

Two governing principles (Part 1 & Part 2) speciality (conferral) & implied powers:
ICJ, Legality of the Use by a State of Nuclear Weapons in Armed Conflict, 8 July 1996,
25).

The United Nations specificity of purposes (art. 1 UN Charter) and scope legal
supremacy (art. 103 UN Charter) 6 main organs: GA, SC, ECOSOC, TC, ICJ, SG UN
specialized agencies: the UN system The foundation of the UN The International
Court of Justice.

International Law Course outline 3

Week 3: Making International Law I
I. CUSTOM

The formal sources of International Law material v. formal sources processes for the
creation of international obligations sources and subjects creation of norms and
specificity of IL (Kelsen) political dimension functions of law: limiting and enabling
power The adequacy of the word sources UN Charter, preamble The problem of
law-making in the international community difference with domestic law horizontal,
decentralized and non-hierarchical character of IL The Wimbledon case (PCIJ,
Wimbledon (17 August 1923, Series A, n1, p. 25): law and sovereignty; consensual
foundation of international law The Lotus case (PCIJ, Lotus (7 Sept. 1927, Series A,
n10, p. 19): International law as a permissive system Lotus overturned? : The Arrest
Warrant case (ICJ, Arrest Warrant of 11 April 2000 (Democratic Republic of the Congo
v. Belgium), 14 Feb. 2002, 61); The Kosovo Advisory Opinion (ICJ, Accordance with
international law of the unilateral declaration of independence in respect of Kosovo,
advisory opinion, 22 July 2010, 56).

Introduction to Article 38 of the ICJ Statute the drafting history of Art. 38 of the PCIJ
Statute in 1920 Article 38 of the ICJ Statute absence of hierarchy logical order of
application incomplete Article 38 again: the teachings of the most highly qualified
publicists of the various nations Art. 38, 2: ex aequo et bono.

The notion of customary International law Art. 38, par. 1, (b) custom as general
international law how to find custom? theory of two elements North Sea Continental
Shelf cases (ICJ, North Sea Continental Shelf cases, FRG/Denmark; FRG/Netherlands, 20
Feb. 1969, 74-77) Germany v. Italy (ICJ, Jurisdictional Immunities of the State
(Germany v. Italy: Greece intervening), 3 Feb. 2012, 55) Summing up the two
elements theory objective element: general practice practice: actions, omissions,
elements of practice generality of practice over time over space regularity,
consistency practice of States States whose interests are specially affected subjective
element: opinio juris sive necessitatis accepted as law: ICJ, North Sea Continental Shelf
cases, 77 meaning.

The interplay between contrary practice and opinion juris from apology to utopia
(Koskenniemi) Inconsistent practice and the survival of customary rules: ICJ, Military
and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of
America), 27 June 1986, 186 Persistent objector, new States, regional custom and the
foundation of custom persistent objector: two situations ICJ, Anglo-Norwegian
fisheries (1951): consent-based conception of custom new States and existing custom:
limit to consent-based conception regional or local customs: ICJ Asylum case (Columbia
v. Peru, 1950) standard of proof required paradox.

Where and how to find custom? Reports of practice codification and progressive
development: Institut de droit international (1873) International Law Commission.

International Law Course outline 4

Week 4: Making International Law II
II. TREATIES

The notion of treaty notion variety of treaties the treaty about treaties: VCLT 23 May
1969 customary status VCLTIO 21 March 1986 definition of treaty and scope of
application of VCLT: Art. 2, 1, (a) designation one or several instruments treaty v.
gentlemens agreement treaty as a legal act governed by international law pacta sunt
servanda Art. 26 VCLT.

Treaty negotiations informal character of IL States representatives full powers: art.

2(1) c) VCLT Art. 7 VCLT presumptions Art. 7, 2 VCLT substantive provision
relating to the extent of the persons powers when exercising representative function: ICJ,
Land and Maritime Boundary between Cameroon and Nigeria (Cameroon v. Nigeria:
Equatorial Guinea intervening), 10 Oct. 2002, 265 Signature, ratification and entry
into force signature legal effect Art. 10 VCLT (authentication) Art. 12 VCLT
(consent to be bound) ratification Art. 2, 1, (b), Art. 11, 14 VCLT Art. 24, 4 VCLT
(final clauses) Art. 18 VCLT (not to defeat object and purpose) interim obligation
depositary: art. 77 VCLT The ICC Statute (exercise) Registration and publication
purpose Wilsons fourteen points and secret treaties Art. 18 Covenant of the League of
Nations (binding force) Art. 102 UN Charter (invoked before UN organ) UN Treaty
Series

Reservations: notion purpose Art. 2, 1, (d) VCLT unilateral statement to exclude

or to modify specificity timing Reservations: permissibility conditions: Art. 19
VCLT ICJ, Reservations to the Convention on the Prevention and Punishment of the
Crime of Genocide, advisory opinion, 28 May 1951 reservations incompatible with object
and purpose invalidity of reservation or of consent?: ECtHR, Belilos v. Switzerland, 29
April 1988 Reservations: legal effects intrinsic, reciprocal, relative (Art. 21 VCLT)
example Reservations: acceptance and objection acceptance (Art. 20) silence (Art.
20, 5 VCLT) objection to the entry into force of the treaty (Art. 20, 4, (b)) objection
(Art. 21, 3): which legal effect? Withdrawal of reservations (Art. 22) Reservations
and objections in practice: Pakistan and the CAT

The validity of treaties: introduction notion limited grounds Art. 42, 1, VCLT
reasons capacity States (Art. 6 VCLT) international organisations (Art. 6 VCLTIO)
& implied powers (ECJ, ERTA case (1971).
Defect of consent (competence) notion Art. 27 VCLT Art. 46 VCLT conditions
ICJ, Land and Maritime Boundary between Cameroon and Nigeria (Cameroon v. Nigeria:
Equatorial Guinea intervening), 10 Oct. 2002, 265: manifest violation & rule properly
publicized.
Defect of consent (genuine and informed consent) error (Art. 48 VCLT) fraud (Art.
49 VCLT) corruption (Art. 50 VCLT) coercion of representative (Art. 51 VCLT)
coercion on the State (Art. 52 VCLT) notion of force armed force economic force
Final Act Vienna Conference legality of the threat or use of armed force peace treaties.

International Law Course outline 5

Jus cogens object of treaty notion Art. 53 VCLT & 64 VCLT jus cogens v. jus
dispositivum peremptory norms and ordre public international jurisprudence nature
of jus cogens: part of customary IL with specific opinion juris (ICJ, Questions relating to
the Obligation to Prosecute or Extradite (Belgium v. Senegal), 20 July 2012, 99)
inequality of rights and obligations: no ground for invalidity.

Final note on the invalidity of treaties loss of right to invoke ground for invalidating
(Art. 45) separability of provisions (Art. 44) retroactivity (but Art. 69 & 71) procedure
(Art. 65 & 66).

III. GENERAL PRINCIPLES

General principles according to Article 38 of the ICJ Statute Art. 38, par. 1, (c) origin
non liquet subsidiary character common principles of domestic law and consent
civilized nations General principle of international law synonym for custom
General principles in ICJ cases (see cases quoted).

IV. UNILATERAL ACTS OF STATES

Unilateral acts of States classical approach ICJ, Nuclear Tests (Australia v. France),
20 Dec. 1974, 46-51 intent to be bound principle of good faith; trust and confidence
Timor-Leste and Australia at the ICJ (ICJ, Questions relating to the seizure and
detention of certain documents and data (Timor-Leste v. Australia), Provisional measures,
3 March 2014, 44).

V. UNILATERAL ACTS OF INTERNATIONAL ORGANIZATIONS

Unilateral acts of international organizations acts adopted according to the basic

instrument establishing the organization consent to basic instrument and legal effects on
Member States according to basic instrument conformity with basic instrument and
validity normative chain and legal nature Kosovo ICJs advisory opinion (ICJ,
Accordance with international law of the unilateral declaration of independence in respect
of Kosovo, advisory opinion, 22 July 2010, 88 [with respect to the Constitutional
Framework as UNIMIK Regulation]).

UN General Assembly resolution and customary law functions and powers of the GA
(Art. 10 UN Charter) administrative resolutions having binding effect within the UN
specific and general resolutions resolutions as support of customary rules declaratory
character constitutive character conditions (object, words, political support) examples
(Res. 2625 (XXV) / Res. 1514 (XV) Last years General Assembly resolutions

VI. SOFT LAW

Soft law notion problems standards presumption of binding force (?) binding
force through treaty provision Reading: ICJ, Pulp Mills on the River Uruguay
(Argentina v. Uruguay), 20 April 2010, 220-225.

International Law Course outline 6

Week 5: Applying International Law
Applying International law notion and problems sources as grounds for (similar)
obligations conflict of obligations binding force and personal scope of custom as
general international law dispositive and residual character conventional derogation
from customary rules jus cogens and peremptory customary rules binding force and
personal scope of general principles of unilateral acts (of States or IO).

The binding character of treaties generalities pacta sunt servanda (Art. 26 VCLT)
provisional application (Art. 25 VCLT) Art. 27 & 46 VCLT temporal scope (Art. 28
VCLT) territorial scope (Art. 29 VCLT) personal scope: relative effect of treaties (Art.
34 VCLT) imposing an obligation on third State (Art. 35) conferring a right on third
State (Art. 36) example (Suez canal Convention Constantinople (1888)) treaty
reflecting customary rules (Art. 38) separate existence of treaty and custom.
Most-Favoured-Nation (MFN) WTO (GATT, GATS & TRIPS) notion.

Termination, withdrawal and suspension of treaties limited grounds (Art. 42, 2,

VCLT) notion (Art. 72) Art. 54-64 VCLT
Inadiplenti non est adimplendum Art. 60 Conditions material breach
EU conditionality (Cotonou Parternship Agreement)
Rebus sic stantibus Art. 62 Conditions ICJ, Gabkovo-Nagymaros Project
(Hungary/Slovakia), 25 Sept. 1997, 104.

Interpreting international law notion political dimension interpretation as social

practice constructive ambiguities aims of interpretation textual historical
teleological Art. 31 & 32 VCLT customary nature (e.g. ICJ, Kasikili/Sedudu Island
(Botswana/Namibia)(1999))

Articles 31-33 of the Vienna Convention reasons for Art. 31, 1 effet utile (ICJ,
Territorial dispute (Libya / Tchad), 3 February 1994, 51) subsequent practice (e.g. Art.
27 UN Charter and ICJ, Legal Consequences for States of the Continued Presence of South
Africa in Namibia (South West Africa) notwithstanding Security Council Resolution 276
(1970), advisory opinion, 21 June 1971 22 Art. 31, 3, (c) VCLT systemic integration
Art. 32 travaux prparatoires as supplementary means no principle of restrictive
interpretation.

Treaty interpretation, including of generic terms ICJ, Dispute regarding Navigational

and Related Rights (Costa Rica v. Nicaragua), 13 July 2009, 45-71.
Interpretation and systemic integration Art. 31, 3, c) ICJ, Oil Platforms (Islamic
Republic of Iran v. United States of America), 6 Nov. 2003, 39-42; PCA, Iron Rhine
Arbitration (Belgium v. Netherlands), 24 May 2005, 58 and updating treaties.

International Law Course outline 7

Conflicting obligations (I) avoiding conflict by systemic interpretation fake situations
of conflict: void treaty (Art. 53 jus cogens); terminated treaty by conclusion of new
incompatible treaty (Art. 59) resolving conflict by legal supremacy: Art. 103 UN Charter
resolving conflict by expressing preference (Art. 30, 2 VCLT; e.g. Art. 351 TFUE)
resolving conflict by commitment not to conclude conflicting treaty (e.g. Art. 8 NATO).

Conflicting obligations (II) Art. 30, 3 VCLT: lex posterior derogate priori quid if not
same parties? Art. 30, 4 (b) VCLT Art. 30, 5 VCLT political choice.

Performing international obligations obligation of result (by action or abstention)

obligation of conduct due diligence obligation to prevent obligation to respect, protect
and fulfil human rights.
What is required to perform international obligations? ICJ, Application of the
Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and
Herzegovina v. Serbia and Montenegro), 26 Feb. 2007, 425-450.

Relationship between international law and domestic law (I) from the point of view of
IL: domestic law as fact (Art. 27 VCLT; PCIJ, Certain German interests in Polish Upper
Silesia (1926)) breach of IL by domestic law and international responsibility taking
domestic law into consideration.
Relationship between international law and domestic law (II) from the point of view of
domestic law: IL as law monism dualism choice
Direct effect of treaties reception of treaties in domestic law: domestic law issue direct
effect of treaty provisions (self-executing, i.e. no need of domestic implementing act):
international law issue PCIJ, Jurisdiction of the Courts of Danzig (1928).

International Law Course outline 8

Week 6: Claiming Responsibility
I. NOTION

The notion of international responsibility responsibility notion secondary rules when

breach of primary rules International Law Commission ARSIWA; A/RES/56/83 (2001)
substantive (reparation) and instrumental consequences (counter-measures)
responsibility for internationally wrongful act (Art. 1 ARSIWA) notion of internationally
wrongful act objective and subjective elements (Art. 2) characterization under domestic
law (Art. 3) ARIO A/RES/66/100 (2011).

II. INTERNATIONALLY WRONGFUL ACT

The objective element of the internationally wrongful act: the breach on an international
obligation Art. 12 Art. 13 (contemporaneity principle; Island of Palmas (NL v. USA)
(1928) Art. 14 (instantaneous v. continuing character of breach) Art. 14, 3 (obligation
to prevent) Art. 15 (composite act).

Circumstances precluding wrongfulness: breach without responsibility notion limits:

peremptory norms (Art. 26); compensation (Art. 27) consent (Art. 20) self-defence
(Art. 21) countermeasures (Art. 22) force majeure (Art. 23) distress (Art. 24)
necessity (Art. 25) ICJ, Gabkovo-Nagymaros Project (Hungary/Slovakia), 25 Sept.
1997, 51 Torrey Canyon incident (1967).

Responsibility without breach, accountability and collective responsibility liability

(non-fault regimes) accountability legal personality and responsibility responsibility
of States and collective responsibility.

III. ATTRIBUTION

The subjective element of the internationally wrongful act: attribution notion failure
to act attribution of actual conducts all State organs acting in such capacity (v. private
acts) (Art. 4) governmental authority (Art. 5) lending organs to foreign State (Art. 6)
ultra vires (Art. 7) private acts of organs and officials member of armed forces (Art. 3
Hague Rules (1907) & Art. 91 Geneva Protocol I (1977)).

Attribution of private acts (1) private act reveals wrongful omission absence or default
of official authorities (Art. 9) insurrectional movement (Art. 10) conduct acknowledged
or adopted (Art. 11): ICJ, United States Diplomatic and Consular Staff in Tehran (United
States of America v. Iran), 24 May 1980.

Attribution of private acts (2) instructions (Art. 8) conduct directed or controlled (Art.
8) ICJ, Military and Paramilitary Activities in and against Nicaragua (Nicaragua v.
United States of America), 27 June 1986, 115 (effective control) v. ICTY, Tadi, IT-94-
1-A, 15 July 1999, 145 (overall control) fragmentation debate Effective control
upheld: ICJ, Application of the Convention on the Prevention and Punishment of the Crime
of Genocide (Bosnia and Herzegovina v. Serbia and Montenegro), 26 Feb. 2007, 396-
407.

International Law Course outline 9

Responsibility of a State in connection with the act of another State aid or assistance
(Art. 16) direction and control (Art. 17) Coercion (Art. 18)

Attribution to International Organizations issue of the responsibility of members for

the conduct of the organization distinct legal personality ARIO; A/RES/66/100 (2011)
legal status State organs or agents placed at the disposal of the organization peace-
keeping State organs fully seconded v. placed at disposal of the organization Art. 7
ARIO (put at disposal + IO exercises effective control v. ECtHR, Behrami v. France;
Saramati v. France, 2 May 2007 (ultimate control)).

IV. NEW OBLIGATIONS

The new obligations arising from international responsibility: cessation duty of

performance (Art. 29) cessation (Art. 30(a)) if continuing wrongful act: ICJ, Legal
Consequences of the Construction of a Wall in the Occupied Palestinian Territory,
advisory opinion, 9 July 2004, 151 assurances and guarantees of non-repetition (Art.
30(b)).

The new obligations arising from international responsibility: reparation Art. 31, 1
injury (Art. 31, 2) as a legal construct intrinsically (interests of States protected under
international law) moral and material damage (Art. 31) damnum emergens, lucrum
cessans extrinsically causality (Art. 31) proximate cause reparation notion PCIJ,
Factory at Chorzw (Germany v. Poland), 13 Sept. 1928, Series A, n17, p. 47

The forms of reparation Art. 34 restitution (Art. 35) compensation (Art. 36)
contribution to injury (Art. 39) assessing damage and equitable considerations for non-
material damages (ICJ, Ahmadou Sadio Diallo (Republic of Guinea v. Democratic
Republic of the Congo), 19 June 2012); punitive damages currency interests (Art. 38)
satisfaction (Art. 37) repealing domestic acts ICJ, Arrest Warrant of 11 April 2000
(Democratic Republic of the Congo v. Belgium), 14 Feb. 2002, 76; comp. with cessation
when ongoing breach: ICJ, Legal Consequences of the Construction of a Wall in the
Occupied Palestinian Territory, advisory opinion, 9 July 2004, 163.

The right of individuals to reparation Art. 33 (2) ICJ, Legal Consequences of the
Construction of a Wall in the Occupied Palestinian Territory, advisory opinion, 9 July
2004, 152-153 Basic Principles and Guidelines on the Right to a Remedy and
Reparation for Victims of Gross Violations of International Human Rights Law and Serious
Violations of International Humanitarian Law (A/RES/60/147 (2006)).

Serious breaches of obligations under jus cogens norms crimes of States (ILC draft
1979) problems serious breaches of obligations under peremptory norms of general
international law Art. 40-41 ARSIWA.

International Law Course outline 10

 V. INVOKING RESPONSIBILITY

Responsibility invoked by the injured State notion of injured State: Art. 42 bilateral
obligations collective obligations (erga omnes obligations ICJ, Barcelona Traction,
Light and Power Company, Limited (Belgium v. Spain) (New Application: 1962), 5 Feb.
1970, 33-34) specially affected interdependent obligations.

How to invoke responsibility? notice (Art. 43) admissibility of claims (Art. 44:
nationality + exhaustion of local remedies) diplomatic protection: PCIJ, Mavrommatis
Palestine concession (Greece c. United Kingdom), 30 August 1924, series A, n2, p. 12
right of the State ILC draft on diplomatic protection (A/RES/62/67, 6 Dec. 2007)
residual use of diplomatic protection human rights courts investment arbitration Loss
of right to invoke responsibility (Art. 45) Plurality of injured States (Art. 46) Plurality
of responsible States (Art. 47: the same wrongful act).

Responsibility invoked by a State other than the injured State Art. 48 ARSIWA
obligations erga omnes partes obligations erga omnes ICJ, Barcelona Traction, Light
and Power Company, Limited (Belgium v. Spain) (New Application: 1962), 5 Feb. 1970,
33-34 Obligations erga omnes (partes) jus cogens norms and erga omnes obligations
IDI, Krakow resolution (2005) consequences ICJ, Questions relating to the
Obligation to Prosecute or Extradite (Belgium v. Senegal), 20 July 2012, 68-69 erga
omnes and jurisdiction: ICJ, East Timor (Portugal v. Australia), 30 June 1995, 29.

VI. COUNTERMEASURES

The notion of countermeasures retorsions v. countermeasures decentralized

enforcement measures intrinsically illegal circumstance precluding wrongfulness Art.
22 ARSIWA target: author of the internationally wrongful act: ICJ, Gabkovo-
Nagymaros Project (Hungary/Slovakia), 25 Sept. 1997, 83 purpose (Art. 49, 1)
temporary character (Art. 53) non-performance of obligations (Art. 49, 2-3).

Limits to the exercise of countermeasures Art. 50: obligations not affected integral
obligations prohibition of forcible countermeasures (Res. 2625 (XXV), ICJ, Military and
Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America),
27 June 1986, 127) diplomatic obligations and self-contained regimes ICJ, United
States Diplomatic and Consular Staff in Tehran (United States of America v. Iran), 24 May
1980, 86 prohibition of exceptio and countermeasures between EU member States: ECJ,
cases 90 & 91/63, Commission v. Belgium and Luxemburg, 13 Nov. 1964 exercising
countermeasures necessity: request and notification (Art. 52) proportionality (Art. 51,
comp. ICJ, Gabkovo-Nagymaros Project (Hungary/Slovakia), 25 Sept. 1997, 85.

Countermeasures by other States than the injured State? practice problem ILC draft
1996: universal countermeasures in case of crime Art. 54 debate.

International Law Course outline 11

Week 7: Seeking Justice

I. GENERALITIES

Seeking justice at the national level, at the international level.

Settling disputes concept of dispute: PCIJ, Mavrommatis Palestine Concessions (Greece

v. United Kingdom), 30 August 1924 (jurisdiction), p. 11
The obligation to settle disputes peacefully prohibition on the use force (cfr. infra) and
obligation to settle disputes peacefully Art. 2, 3 & 4 UN Charter Art. 33 UN Charter
Res. 2625 (XXV) customary nature : ICJ, Nicaragua v. USA choice of means nature
of the dispute nature of the means political v. judicial means of settlement consent
third party intervention application v. creation of rules.

Political means of settlement Art. 33 UN Charter Res. 22625 (XXV) Hague

conventions (1899 & 1907) negotiations enquiry good offices mediation
conciliation enquiry regional agencies or arrangements.

Judicial means of settlement and the interplay between judicial and political means
judicial means as alternative: PCIJ, Free Zones of Upper Savoy and the District of Gex
(France/ Switzerland), Order of 19 August 1929, p. 13 interplay absence of system of
international courts.

II. ARBITRATION

Arbitration: generalities and consent historical perspective: Jay treaty (1794), Alabama
arbitration (Washington treaty, 1871) Hague Conventions (1899 & 1907) definition
Permanent Court of Arbitration consent: special agreement, compromissory clause
conditions of consent and jurisdiction Examples of compromissory clauses.

Arbitration: institutional and procedure aspects arbitral tribunal choice of arbitrators,

of procedure bifurcation comptence de la comptence award legal effect
annulment advantages of arbitration Some arbitral settings: PCA, Iran-US Claims
Tribunal, International Centre for Settlement of Investment Disputes (ICSID - Washington
convention, 1965).

III. INTERNATIONAL COURT OF JUSTICE

The International Court of Justice as an institution principal judicial organ of the UN

(Art. 92 Charter) universal and general character of ICJ from the PCIJ to the ICJ
(continuity: Charter and Statute) composition (Art. 2-4 Statute, Art. 13) election (Art.
4-12 Statute) term administration (registrar) and seat chambers (Art. 26 Statute)
judge ad hoc (Art. 31) Rules, Practice directions, Resolution on international judicial
practice official languages.

International Law Course outline 12

The ICJ advisory jurisdiction Art. 96 Charter & Art. 65 Statute legal question
jurisdiction request by General Assembly or Security Council request by authorized
other UN organs and specialized agencies scope of activities ICJ, Legality of the Use
by a State of Nuclear Weapons in Armed Conflict (WHO request), advisory opinion 8 July
1996 Art. 12 UN Charter: request for opinion is not recommendation: ICJ, Accordance
with international law of the unilateral declaration of independence in respect of Kosovo,
advisory opinion, 22 July 2010, 24 discretion: compelling reasons to decline exercise
of jurisdiction ICJ, Accordance with international law of the unilateral declaration of
independence in respect of Kosovo, advisory opinion, 22 July 2010, 29-30 legal
authority follow-up at GA (UNRoD)

ICJ jurisdiction: access to the Court locus standi, jurisdiction ratione personae Art.
93 UN Charter, Art. 34-35 Statute ICJ, Application of the Convention on the Prevention
and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Serbia and
Montenegro), 26 Feb. 2007, 80-141

ICJ Jurisdiction: special agreement and forum prorogatum jurisdiction ratione

materiae based on consent fundamental requirement, even in case of breach jus cogens:
ICJ, Armed Activities on the Territory of the Congo (New Application : 2002) (Democratic
Republic of the Congo v. Rwanda), 3 Feb. 2006, 64 special agreement: Art. 36, 1
Statute notion after dispute has arisen problems: existence, interpretation, limits
(deciding on actual dispute: ICJ, Frontier Dispute (Burkina Faso/Niger), 16 Avril 2013)
forum prorogatum: Art. 38, 5 Rules notion after dispute has arisen.

ICJ Jurisdiction: compromissory clause Art. 36, 1 in fine provided for in the
Charter: ICJ, Aerial Incident of 10 August 1999 (Pakistan v. India), 21 June 2000, ICJ
Reports, 48 notion prior to dispute subject-matter of the dispute and consent
reservations to compromissory clauses multilateral treaty for disputes settlement:
American Treaty on Pacific Settlement (Pact of Bogot, 1948), European Convention for
the Peaceful Settlement of Disputes (1957) prior negotiations and conditions of consent:
ICJ, Application of the International Convention on the Elimination of all Forms of Racial
Discrimination (Georgia v. Russian Federation), Preliminary Objections, 1 April 2011,
130-134.

ICJ Jurisdiction: optional clause I Art. 36, 2, 4, 5 Statute notion unilateral

declaration jurisdictional link conditions reciprocity reservations and exclusions
the same obligation: lowest common denominator.
ICJ Jurisdiction: optional clause II Art. 36, 3 Statute automatic reservation ICJ,
Certain Norwegian Loans (France v. Norway), 6 July 1957 (opinion H. Lauterpacht)
interpretation of optional clauses: unilateral acts and VCLT analogously (ICJ, Fisheries
Jurisdiction (Spain v. Canada), 4 Dec. 1998).
Acceptance of ICJ Jurisdiction in practice.

ICJ Proceedings notification of special agreement or application notifications

publicity procedural orders written pleadings oral pleadings non-appearance of
respondent: Art. 53 Statute.

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Provisional measures Art. 41 Statute & Art. 73-78 Rules purpose (preservation of
rights pending judgment on merits) conditions (prima facie jurisdiction; link between
measures requested and rights to be protected; plausible character of rights; risk of
irreparable prejudice; urgency) proprio mutu power binding effect ICJ, LaGrand
(Germany v. United States of America), 27 June 2001, 102.
Provisional measures in context ICJ, Certain Activities Carried Out by Nicaragua in the
Border Area (Costa Rica v. Nicaragua), Order 8 March 2011, 49-77.

Preliminary objections Art. 79 Rules fundamental procedural right bifurcation

comptence de la comptence (Art. 36, 6 Statute) rejecting, upholding or joining
objection to the merits.

The Monetary Gold principle indispensable third party & decline to exercise jurisdiction
ICJ, Monetary Gold Removed from Rome in 1943 (Italy v. France, United Kingdom of
Great Britain and Northern Ireland and United States of America), 15 June 1954, p. 32;
ICJ, East Timor (Portugal v. Australia), 30 June 1995, 29.

Other incidental proceedings counter-claims notion, conditions (Art. 80 Rules)

intervention Art. 63 Statute (intervention by New-Zealand in Whaling in the Antarctic
case) Art. 62 Statute & Art. 81 Rules as a non-party as a party conditions
discontinuance (Art. 88-89 Rules).

Behind the scenes how ICJ decisions are drafted; internal judicial practice reflection.

The binding character of ICJ judgments Art. 94 Charter & Art. 59 Statute
implementation of judgments: examples interpretation (Art. 60 Statute) revision (Art.
61 Statute).

IV. INTERNATIONAL CRIMINAL COURT

Establishing the ICC a long process Versailles Treaty (1919) ICTY (1993) ICTR
(1994) -- Genocide convention (1948) ILC draft code of crimes (1996) draft ICC statute
(1996) Rome Statute (1998, 2002) the ICC as an institution seat organs: presidency,
judicial divisions (pre-trial, trial and appeal divisions), office of prosecutor, registry
office of public counsel for victims, office of public counsel for defence, trust fund,
detention centre.

ICC jurisdiction ratione materiae: Art. 5 (genocide, crimes against humanity, war
crimes, crime of aggression (2017); elements of crimes (Art. 9) ratione temporis: Art. 11
ratione loci and ratione personae: Art. 12 (exception Art. 15bis, 5) Art. 26 Art. 27
referring a situation by State party (Art. 14) or prosecutions proprio motu (Art. 15)
UNSC referral of a situation (Art. 13(b)): Darfur (Res. 1593 (2005), Libya (Res. 1970
(2011) complementarity (Art. 17 : unable or unwilling) UNSC deferral of
investigation or prosecution (Art. 16): Res. 1422 (2002), Res. 1487 (2003).

ICC proceedings To go further: ICC in context.

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 V. DOMESTIC COURTS

Turning to domestic courts immunity reasons.

State immunity from jurisdiction custom sovereignty par in parem non habet
juridictionem ICJ, Jurisdictional immunities of the State (Germany v. Italy: Greece
intervening), 3 Feb. 2012, 56 domestic statutes on immunity UN Convention on
Jurisdictional Immunities of States and their Property (2005) European Convention on
State Immunity (1972) from absolute jurisdictional immunity to restrictive immunity
acta jure imperrii v. acta jure gestionis criteria UN Convention, Art. 2, 2
employment (Art. 11 UN Convention) territorial tort exception (Art. 12 UN Convention);
but armed forces in armed conflict: ICJ, Jurisdictional immunities of the State (Germany
v. Italy: Greece intervening), 3 Feb. 2012, 65-79 waiving immunity: in limine litis;
counter-claim, Art. 6 UN Convention effect of immunity immunity and right to a judge
(Art. 6 ECHR; ECtHR,McElhinney v. Ireland, 21 Nov. 2001, paras. 33-40; ECtHR,
Fogarty v. UK, 21 Nov. 2001, paras. 32-39; immunity and breach of jus cogens norm:
ECtHR, Al Adsani v. UK, 21 Nov. 2001, 106; ICJ, Jurisdictional immunities of the State
(Germany v. Italy: Greece intervening), 3 Feb. 2012, 93.

Immunity from jurisdiction of International Organizations IO not sovereign

immunity established by treaty distinction between nature of acts? immunity and right
to judge (Art. 6 ECHR: ECtHR, Waite and Kennedy v. Germany and Beer and Regan v.
Germany, 18 Feb. 1999) internal procedure ECtHR, Stichting Mothers of Srebrenica,
11 June 2013.

Ratione personae immunity of foreign State officials House of Lords, Pinochet case
(1999) notion private and public acts temporary total immunity ratione personae
acting heads of State, heads of Government, Foreign affairs ministers: ICJ, Arrest Warrant
of 11 April 2000 (Democratic Republic of the Congo v. Belgium), 14 Feb. 2002 diplomats
and special missions more high-ranking officials? setting aside immunity ratione
personae by ICC Statute (Art. 27; Art. 98).

Ratione materiae immunity of foreign State officials notion official acts immunity
representatives of States acting is that capacity right of State ICJ, Certain Questions
of Mutual Assistance in Criminal Matters (Djibouti v. France) grave crimes exception?

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Week 8: Upholding Peace
I. PROHIBITION OF THE USE OF FORCE

International law and violence war and peace social order, law and violence
international law as a promise of peace equal sovereignty and unequal military
capabilities outlawing war and making war legal.

From the just war theory to the Hague Convention (1907) just and unjust wars
constitutional aspects jus ad bellum / jus in bello (IHL) from freedom to prohibition
1899 & 1907 Hague Peace conferences war declaration Drago-Porter Convention
(1907) state of war vs. peace.

Versailles (1919) and the Paris treaty (1928) Art. 231 Versailles treaty League of
Nations Covenant (Art. 11-16) Treaty of Paris (Briand-Kellogg Pact, 1928): outlawry of
war quid pro quo

Article 2(4) of the UN Charter Art. 2, 4 Res. 2625 (XXV) -- ICJ, Accordance with
international law of the unilateral declaration of independence in respect of Kosovo,
advisory opinion, 22 July 2010, 191-193 from contract to institution normative status
content threat or use of force (vs. war) international relations ICJ, Accordance
with international law of the unilateral declaration of independence in respect of Kosovo,
advisory opinion, 22 July 2010, 80 against the territorial integrity or political
independence or in any other manner inconsistent with the Purposes of the UN
equality of belligerent for jus in bello purposes wrongfulness under jus ad bellum despite
conformity with jus in bello.

Article 2(4) of the UN Charter and consent to foreign intervention use of force against
v. with consent effectiveness of government consent in civil wars IDI, The Principle
of Non-Intervention in Civil Wars, Wiesbaden (1975) ICJ, Military and Paramilitary
Activities in and against Nicaragua (Nicaragua v. United States of America), 27 June 1986,
246 military assistance short of non-international armed conflict IDI, Military
assistance on request, (2011)

II. SELF-DEFENCE

Self-defence I Art. 51 UN Charter exception/qualification to the prohibitive rule:

ICJ, Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United
States of America), 27 June 1986, 193, 210; ICJ, Oil Platforms (Islamic Republic of Iran
v. United States of America), 6 Nov. 2003, 43 Art. 21 ASIWA inherent right
customary status armed attack occurs (agression arme) gravity threshold and
skirmishes most grave: ICJ, Military and Paramilitary Activities in and against
Nicaragua (Nicaragua v. United States of America), 27 June 1986, 191 aggressive
intent: ICJ, Oil Platforms (Islamic Republic of Iran v. United States of America), 6 Nov.
2003, 43 aggression under GA Res. 3314 (XXIX) 14 Dec. 1974, Art. 3 presumptions
(dis)qualification by Security Council.

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Self-defence II imminent attack SG report In larger freedom A/59/2005, 124 IDI,
Self-defence, Santiago resolution (2007) Caroline incident (1837) and Webster formula
anticipatory self-defence vs. preemptive self-defence rescue of nationals abroad?

Exercising self-defence necessity and proportionality ICJ, Legality of the Threat or

Use of Nuclear Weapons, advisory opinion, 8 July 1996, 41 objective assessment ICJ,
Oil Platforms (Islamic Republic of Iran v. United States of America), 6 Nov. 2003, 43,
73 necessity and legality of target under jus in bello (ibid., 51) nuclear weapons
ICJ, Legality of the Threat or Use of Nuclear Weapons, advisory opinion, 8 July 1996, 97
immediate reaction global proportionality informing the Security Council ICJ,
Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States
of America), 27 June 1986, 200 action by SC and end of self-defence.

Collective self-defence Art. 51 UN Charter notion additional conditions assessment

and request by the victim State ICJ, Military and Paramilitary Activities in and against
Nicaragua (Nicaragua v. United States of America), 27 June 1986, 195, 199 treaty
commitments Art. 5 Washington Treaty (NATO, 1949); Art. 42, 7, TEU.

Self-defence and terrorism I absence of global definition of terrorism sectorial criminal

conventions terrorism on State territory and consent to foreign military assistance
terrorist attack from abroad gravity threshold attribution of attack to State and self-
defence against that State (Art. 8 ARSIWA; Art. 3, g) GA Res. 3314 (XXIX) substantial
involvement.

Self-defence and terrorism II 9/11 and UNSC Res. 1368 & 1373 (2001) ICJ, Legal
Consequences of the Construction of a Wall in the Occupied Palestinian Territory,
advisory opinion, 9 July 2004, 139 IDI, Self-defence, Santiago resolution (2007) where
to use force?

III. THE UN SECURITY COUNCIL

The UN Security Council I functions (Art. 24 Charter) composition (Art. 23)

permanent members and elected members vote, veto, abstention (Art. 27) powers
Chapters VI, VII, VIII resolutions: decisions and recommendations.

The UN Security Council II Chapter VII Art. 48 Art. 39 threat to the peace, breach
of the peace, act of aggression evolution SC declaration 31 Jan. 1992 aggression
GA Res. 3314 (XXIX) Art. 2, 7 internal affairs legal or political assessment?

Sanctions and non-forcible measures under Chapter VII Art. 41 sanctions

committees subsidiary organs (Art. 29) smart sanctions targeted sanctions
blacklisting ICTY & ICTR as subsidiary organs use of Chapter VII powers under the
ICC Statute (referral and deferral cfr. Week 7) Did you know? (examples)

International Law Course outline 17

Legal effects of Security Council resolutions I Chapter VII, Art. 48 Art. 25 ICJ,
Legal Consequences for States of the Continued Presence of South Africa in Namibia
(South West Africa) notwithstanding Security Council Resolution 276 (1970), advisory
opinion, 21 June 1971, 112-114 legal effect for non-member States (Art. 2, 6) legal
effect for individuals: direct effect? Art. 103: primacy.

Legal effects of Security Council resolutions II Art. 103 ICJ, Questions of

Interpretation and Application of the 1971 Montreal Convention arising from the Aerial
Incident at Lockerbie (Libyan Arab Jamahiriya v. United States of America), Order of 14
April 1992, 42 element of verticality in an horizontal legal order.

Interpretation of Security Council resolutions ICJ, Accordance with international law

of the unilateral declaration of independence in respect of Kosovo, advisory opinion, 22
July 2010, 94-100; 114-119

Limits to Security Councils powers and judicial review (i) reviewing SC

determinations? ICTY, Tadi, IT-94-1-A, 2 Oct. 1995, para. 29 (ii) reviewing SC
measures grounds Charter principles (Art. 2) jus cogens (iii) mechanism/authority
for reviewing?: ICJ, Legal Consequences for States of the Continued Presence of South
Africa in Namibia (South West Africa) notwithstanding Security Council Resolution 276
(1970), advisory opinion, 21 June 1971, 114 ICJ, Questions of Interpretation and
Application of the 1971 Montreal Convention arising from the Aerial Incident at Lockerbie
(Libyan Arab Jamahiriya v. United States of America), Order of 14 April 1992, 43
ICTY, Tadi, IT-94-1-A, 2 Oct. 1995, 22 CFI, T-306/01, Yusuf, 21 Sept. 2005, 272
et s. ; ECJ, C-406/05 P et C-415/05 P, Kadi, 3 Sept. 2008, 278-330.

IV. USE OF FORCE BY THE UN

The use of force by the UN: the Charter and the Korean War original plan (Art. 43, 45-
47, Military Staff Committee) Cold War Korean War: Res. 83 & 84 (1950)
recommendation.

Peacekeeping peacekeeping operations (PKO blue helmets) practice principles:

consent, impartiality, non-use of force (except self-defence and defence of mandate) legal
basis subsidiary organs (Art. 29) budget mandate evolution: from neutrality to
protection to engagement Res. 2098 (2013) MONUSCO & intervention brigade
authorization to use all necessary means blurring the distinction between peacekeeping
and peacemaking Tribute: A good man in Rwanda.

Veto at the Security Council and the role of the UN General Assembly Art. 24 and Art.
12 UN Charter Uniting for peace Resolution (A/RES/377 (V), 3 Nov. 1950 GA powers
recommendations peacekeeping ICJ, Certain Expenses of the United Nations,
advisory opinion 20 July 1962.

Complex State-building and the Peacebuilding Commission S/RES/1645 (2005) and

A/RES/60/180.

The use of force authorized by the UN authorization to use all necessary means
multinational forces Res. 678 (1990) chapter VII legal basis (Art. 42) practice

International Law Course outline 18

Mandates to use force The Iraq war of 2003; the Libya war of 2011 problems Iraq:
Res. 678 (1990), 687 (1991), 1441 (2002): restore (rtablir) / secure (prserver) Libya:
Res. 1973 (2011) IDI, Authorization of the use of force by the United Nations, Rhodes
(2011).

Failure of collective security (i) prohibition of armed reprisals: Res. 2625 (XXV) ICJ,
Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States
of America), 27 June 1986, 127 Art. 50, 1 a) ARSIWA ICJ, Armed Activities on the
Territory of the Congo (Democratic Republic of the Congo v. Uganda), 19 Dec. 2005, 148
(ii) humanitarian intervention In larger freedom A/RES/2005 Kosovo (1999)
responsibility to protect (R2P) World Summit outcome (2005) A/RES/60/1 legality and
morality (legitimacy).

Farewell.

_________________

International Law Course outline 19