State Based Problem Question 1. Determine Existence of relevant ...
State Based Problem Question 1. Determine Existence of relevant International Law a. Treaty Law b. Customary Law 2. Is the state bound by this international law? a. If treaty, reservation to treaty? b. If customary international law, is the state a persistent objector? 3. Has there been a breach of the obligation? a. Treaty Breach – go to treaty interpretation etc. b. Customary International Law Breach i. Mistreatment of Foreign Nationals c. Illegal Use of Force d. Justified use of countermeasures? 4. Does the ICJ (or similar) have jurisdiction? a. Only need to go here if facts are begging an answer. b. Example – reservation to ICJ jurisdiction. 5. Entitlement of Injured State to Bring Claim a. General State entitlement b. Diplomatic Protection i. Nationality of Claims ii. Exhaustion of Local Remedies 6. Responsibility of Breaching State a. Attribution of breach to State b. Any defences? (circumstances precluding wrongfulness) 7. Consequences of Breach a. Remedies for victim state b. Possible consequences for treaty – e.g. termination for material breach etc.
Individual Responsibility Problem Question 1. What is the crime(s)/tort(s) being prosecuted? 2. Bases for Jurisdiction a. Territorial Principle b. Nationality Principle c. Protective (security) Principle d. Passive Personality Principle e. Universal Jurisdiction 3. Immunity from Jurisdiction a. Diplomatic Immunity b. Foreign State Immunity c. Head of State Immunity d. Former Head of State Immunity e. Other Ministers of State Immunity 4. International Liability of Individuals a. Rome Statute and the ICC b. International Liability as Complementary to Municipal Jurisdiction 5. Extra Factors a. Illegally Obtained Custody b. Duty of State to Prosecute
2. Reservations to Treaties The Law on Reservations KEY POINT – reservations are generally effective to the extent of preventing the application of the relevant provision to the reserving state. Only when the reservation is incompatible with the object and purpose of the treaty may the state not be a party. 1. Definition of a Reservation – Art 2 a. Unilateral Declaration -‐ reservation is a unilateral statement purporting to exclude/modify the effect of certain provisions of treaty in application to state. 2. Reservations Generally – Art 19 – a state may make a reservation to a treaty unless: a. The reservation is prohibited by the treaty. b. Reservation is not amongst accepted reservations specified in treaty. c. The reservation is incompatible the object and purpose of the treaty. 3. Acceptance of and Objections to Reservations – Art 20 a. Recognised Reservation – no acceptance needed for reservations expressly allowed. b. International Organisations – reservation to constituent instrument of an international organisation requires acceptance by the organisation. c. Acceptance of Reservation – acceptance of a reservation by a state brings the treaty into force as between the reserving and accepting states d. Objection to Reservation – another party may object to a reservation being made. Any objections must be made within 12 months of the reservation. 4. Effect of Reservations a. If the reservation is permissible: i. If reservation is not objected to by other states: • Reserved Provision does not apply for reserving state– Comment 24 ii. If reservation is objected to by other states: • Reserving State Bound -‐ A state which makes a reservation that has been objected to by other states is still a party to the rest of the treaty so long as the reservation is compatible with the object and purpose of the convention – Reservations to Convention on Genocide Case • Objecting State – if objecting state believes that the reservation is incompatible with object and purpose, then it may consider that the reserving state is not a party to the convention – Genocide Case o May regard the treaty as not in effect between itself and the reserving state – General Comment 24; English Channel Arbitration b. If the reservation is not permissible (importance of objective tribunal): i. Universal Consent – when application of treaty in its entirety was an essential condition of consent by states, then all the other parties to a treaty must accept the reservation for the party to remain ii. Traditional View – the treaty is not binding on the reserving state and it is not a party to the treaty – Reservations to Genocide Convention iii. Emerging View (Human Rights) – doctrine of inclusivity – the provision relating to the reservation is severed from the treaty as between the reserving state and other states. Reserving state remains party to treaty. c. Reservations made in Regard to particular States – Art 21
i. For Reserving State – relations of reserving state with the other state under the treaty are modified to the extent of the reservation. ii. For Other State – modifies the other state’s provisions to the same extent as for the reserving state – Libyan People’s Bureau Incident 5. Withdrawal of a Reservation or Objection – Art 22 • A party may withdraw a reservation or objection at any time in writing.
Interpretative Declarations An interpretative declaration is a statement by a state detailing the way it interprets the operation of a treaty provision and how it believes the provision applies to it. Two Types of Interpretative Declaration 1. Mere Interpretative Declaration – inferior to a reservation. Just an official legal interpretation of the treaty that the court can find to be incorrect. 2. Qualified Interpretative Declaration – equal status to a reservation. Has actual bearing on how a court interprets the application of a provision to a state. General Principles of Interpretative Declaration – Belilos v Switzerland • Only apply in dispute resolution -‐ not in interactions of parties. • Whether an interpretative Declaration has the same effect and meaning as a reservation is determined by looking at its substantive content and intention.
Disposition on Reservations
Reservations raise questions of the integrity of treaties. This composes a balance between ensuring that multilateral treaties have enough states becoming parties versus the adoption of all the treaty’s provisions so as to give it full effect. • Principle of Inclusivity -‐ Reservations are important to allow widespread adoption of the core provisions of a treaty across a large quantity of states in a multilateral treaty. • Principle of State Consent – positivist approach – states have right to be bound only on their own terms – reservations are probably the most extreme manifestation. • Total Failure – the total failure of a state to become a party to a treaty because of one offending provision is deemed to be a greater loss and a treaty not being totally accepted by every state that is a party to it. • Presumption in Favour of Reservations – states have a very wide discretion and ability to make any reservations while remaining a party to a treaty. Only when reservation is incompatible with purpose and object of treaty will it be impermissible. • Human Rights Treaties – treaties that attempt to set out universal rights of individuals naturally have a higher status than treaties giving rise to simple intergovernmental obligations. Should a reservation be made that is incompatible with the object and purpose of the treaty, the general position is that the reserving state is not excluded entirely from the treaty, but rather the relevant provision is null and void in regard to the reserving state. o Reservations that offend basic or peremptory norms are never compatible with object and purpose of a human rights treaty – whether or not they amount to something that allows the provision to be severed is a question of fact – Restrictions to the Death Penalty Case; Kennedy v Trinidad & Tobago o The court should adopt a narrower interpretation with human rights treaties that reduces the scope for parties to make a reservation.
o Armed Activities (New Application: 2002) – in this case the ICJ allowed Rwanda to make a reservation to Art 9 of the genocide convention to oust the jurisdiction of the court. Although this was accepted, it raised the significant dilemma that even in the 21st Century a state can prevent the application of fundamental norms of human rights to its actions. Further, the prevention of universal jurisdiction on human rights may well frustrate the object and purpose of a treaty entirely as it needs universal application to be effective. • Reservations Frustrate the Effectiveness of International Law – reservations are one of the most problematic manifestations of the fundamental principle of state consent. Effectively allows states to manipulate what the law is and how it applies to them in order to suit their own ends, even after agreeing to a treaty terms initially. Vitiates the idea of equality before the law and in application of the law.
Individual Responsibility Problem Question 1. What is the crime(s)/tort(s) being prosecuted? 2. Bases for Jurisdiction a. Territorial Principle b. Nationality Principle c. Protective (security) Principle d. Passive Personality Principle e. Universal Jurisdiction 3. Immunity from Jurisdiction a. Diplomatic Immunity b. Foreign State Immunity c. Head of State Immunity d. Former Head of State Immunity e. Other Ministers of State Immunity 4. International Liability of Individuals a. Rome Statute and the ICC b. International Liability as Complementary to Municipal Jurisdiction 5. Extra Factors a. Illegally Obtained Custody b. Duty of State to Prosecute
2. Reservations to Treaties The Law on Reservations KEY POINT – reservations are generally effective to the extent of preventing the application of the relevant provision to the reserving state. Only when the reservation is incompatible with the object and purpose of the treaty may the state not be a party. 1. Definition of a Reservation – Art 2 a. Unilateral Declaration -‐ reservation is a unilateral statement purporting to exclude/modify the effect of certain provisions of treaty in application to state. 2. Reservations Generally – Art 19 – a state may make a reservation to a treaty unless: a. The reservation is prohibited by the treaty. b. Reservation is not amongst accepted reservations specified in treaty. c. The reservation is incompatible the object and purpose of the treaty. 3. Acceptance of and Objections to Reservations – Art 20 a. Recognised Reservation – no acceptance needed for reservations expressly allowed. b. International Organisations – reservation to constituent instrument of an international organisation requires acceptance by the organisation. c. Acceptance of Reservation – acceptance of a reservation by a state brings the treaty into force as between the reserving and accepting states d. Objection to Reservation – another party may object to a reservation being made. Any objections must be made within 12 months of the reservation. 4. Effect of Reservations a. If the reservation is permissible: i. If reservation is not objected to by other states: • Reserved Provision does not apply for reserving state– Comment 24 ii. If reservation is objected to by other states: • Reserving State Bound -‐ A state which makes a reservation that has been objected to by other states is still a party to the rest of the treaty so long as the reservation is compatible with the object and purpose of the convention – Reservations to Convention on Genocide Case • Objecting State – if objecting state believes that the reservation is incompatible with object and purpose, then it may consider that the reserving state is not a party to the convention – Genocide Case o May regard the treaty as not in effect between itself and the reserving state – General Comment 24; English Channel Arbitration b. If the reservation is not permissible (importance of objective tribunal): i. Universal Consent – when application of treaty in its entirety was an essential condition of consent by states, then all the other parties to a treaty must accept the reservation for the party to remain ii. Traditional View – the treaty is not binding on the reserving state and it is not a party to the treaty – Reservations to Genocide Convention iii. Emerging View (Human Rights) – doctrine of inclusivity – the provision relating to the reservation is severed from the treaty as between the reserving state and other states. Reserving state remains party to treaty. c. Reservations made in Regard to particular States – Art 21
i. For Reserving State – relations of reserving state with the other state under the treaty are modified to the extent of the reservation. ii. For Other State – modifies the other state’s provisions to the same extent as for the reserving state – Libyan People’s Bureau Incident 5. Withdrawal of a Reservation or Objection – Art 22 • A party may withdraw a reservation or objection at any time in writing.
Interpretative Declarations An interpretative declaration is a statement by a state detailing the way it interprets the operation of a treaty provision and how it believes the provision applies to it. Two Types of Interpretative Declaration 1. Mere Interpretative Declaration – inferior to a reservation. Just an official legal interpretation of the treaty that the court can find to be incorrect. 2. Qualified Interpretative Declaration – equal status to a reservation. Has actual bearing on how a court interprets the application of a provision to a state. General Principles of Interpretative Declaration – Belilos v Switzerland • Only apply in dispute resolution -‐ not in interactions of parties. • Whether an interpretative Declaration has the same effect and meaning as a reservation is determined by looking at its substantive content and intention.
Disposition on Reservations
Reservations raise questions of the integrity of treaties. This composes a balance between ensuring that multilateral treaties have enough states becoming parties versus the adoption of all the treaty’s provisions so as to give it full effect. • Principle of Inclusivity -‐ Reservations are important to allow widespread adoption of the core provisions of a treaty across a large quantity of states in a multilateral treaty. • Principle of State Consent – positivist approach – states have right to be bound only on their own terms – reservations are probably the most extreme manifestation. • Total Failure – the total failure of a state to become a party to a treaty because of one offending provision is deemed to be a greater loss and a treaty not being totally accepted by every state that is a party to it. • Presumption in Favour of Reservations – states have a very wide discretion and ability to make any reservations while remaining a party to a treaty. Only when reservation is incompatible with purpose and object of treaty will it be impermissible. • Human Rights Treaties – treaties that attempt to set out universal rights of individuals naturally have a higher status than treaties giving rise to simple intergovernmental obligations. Should a reservation be made that is incompatible with the object and purpose of the treaty, the general position is that the reserving state is not excluded entirely from the treaty, but rather the relevant provision is null and void in regard to the reserving state. o Reservations that offend basic or peremptory norms are never compatible with object and purpose of a human rights treaty – whether or not they amount to something that allows the provision to be severed is a question of fact – Restrictions to the Death Penalty Case; Kennedy v Trinidad & Tobago o The court should adopt a narrower interpretation with human rights treaties that reduces the scope for parties to make a reservation.
o Armed Activities (New Application: 2002) – in this case the ICJ allowed Rwanda to make a reservation to Art 9 of the genocide convention to oust the jurisdiction of the court. Although this was accepted, it raised the significant dilemma that even in the 21st Century a state can prevent the application of fundamental norms of human rights to its actions. Further, the prevention of universal jurisdiction on human rights may well frustrate the object and purpose of a treaty entirely as it needs universal application to be effective. • Reservations Frustrate the Effectiveness of International Law – reservations are one of the most problematic manifestations of the fundamental principle of state consent. Effectively allows states to manipulate what the law is and how it applies to them in order to suit their own ends, even after agreeing to a treaty terms initially. Vitiates the idea of equality before the law and in application of the law.
